THIS COUNTRY OF OURS •■*••••• BOUGHT WITH THE INCOME FROM THE SAGE- ENDOWMENT FUND '■; THE GIFT OF 1891 A'ZQiSriC [IIM^ Cornell University Library JK424 .H31 This country of ours. olin 3 1924 030 462 638 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030462638 THIS COUNTRY OF OURS THIS COUNTRY OF OURS BY li i I, 1 ; 1 IV 11:?.! ! V BENJAMIN HARRISON EX-PRESIDBNT OF THB UNITED STATES NEW YORK CHARLES SCRIBNER'S SONS 1897 VIM Copyright, 1897, by CHARLES SCRIBNER'S SONS THOW DIRECTORY PRINTING AND BOOKBINDINO COMPANY NEW YORK PREFACE This volume does not deal at all with the ma- terial resources of our country. It has nothing to do with lands, or merchandise, or markets. It is not a philosophical dissertation on civics, nor a commentary on the Constitution. It is a modest attempt to give my readers a view of the machin- ery of our National Government in motion, and some instruction as to the relations and uses of its several parts. The larger part of the contents of the book appeared in the Ladies' Home Journal during the years 1896-97. That text has been carefully revised and much new matter added. The purpose of the book is to give a better knowl- edge of things that have been too near and famil- iar to be well known. We stumble over things that are near our toes. I hope it may also tend to promote an intelligent patriotism and a faithful discharge of the duties of citizenship. CONTENTS FASK Preface, y Inteoduction ix CHAPTER I. The Constitution, 1 Manner of its Adoption — Deals with Large and Per- manent Things — Three Great Departments — A Gov- ernment of Specified Powers, but Supreme in Those — Not a Confederation — Division of Powers between the Nation and the States. CHAPTER II. The CoKaRESs 17 Under the Confederation, one House — Two under the Constitution — ^Apportionment of Representation — Qualifications and Pay of Senators and Representatives — Their Terms — Power of Congress over Times and Manner of Choosing — Times of Meeting of Congress — Classification of Senators — Secret Sessions. CHAPTER III. The Congress, 44 Organization of each House — Officers — Rules — Com- mittees — Quorum — Introduction and Passage of Bills — Petitions — Revenue Bills — Appropriations — Taxing Power — Internal and Foreign Commerce. IV CONTENTS CHAPTER IV. FAGS The Pkesident, 68 A Single Executive — Cabinet OflScers — Term of the President — Manner of Choosing — Electoral College — Elections by House and Senate. CHAPTER V. The Pbesident (Continued), 85 Qualifications — Succession — Notification — Inau- guration — Messages. CHAPTER VI. The Pbesident (Continued), 98 Enforcement of the Laws — The Appointing Power — Senate's Request for Papers — Controversy with President Cleveland — Vacation Appointments — Rela- tions of Cabinet Officers — Usage as to Congressional Influence in Appointments — Senatorial Courtesy — Civil Service. CHAPTER VII. The Pbesident (Continued), 113 Enforcement of Laws — Peace of the United States — Assault on Justice Field— Railroad Strikes — Aliens — Use of Army. CHAPTER VIIL The Pbesident (Continued), 126 How Bills are dealt with— The Veto— Approval of Bills— " Pocket Veto "—" Riders "— Theory of the Veto — Practice— The Treaty-making Power — Action in Senate — Participation of the House— Abrogation. CONTENTS CHAPTER IX. PAGE The President (Continued), 142 The Pardoning Power — Amnesty — Mr. Lincoln's View — Attempt to Except Treason — Reprieve — Com- mutation — Impeachment — The Process — The Penalty — A Rare Proceeding — Some Cases — Andrew Johnson. CHAPTER X. The President (Continued), 159 Official Life at the Executive Mansion — A Home and Office Combined — Historic Desk — Office Force — The Mail — Autographs — Begging Letters — Business Receptions — Desk Work — Office-seekers — Social Ob- servances — Washington's Questions — House and Grounds Public. CHAPTER XL The State Department 181 Bight Executive Departments — The Cabinet Table — Origin of the Office— Under the Confederation — Under the Constitution — Office Force and Methods — Foreign Correspondence — Consultations with the President — Presentation of Ministers — The Consular Service — Should Leave Politics at Home. CHAPTER XII. The Treasury Department, 302 It Is the Steam-plant— Transactions Affect Money Market— Our Mixed Currency System — Gold Redemp- tion and Reserve — Established under Constitution — Hamilton the First Secretary— Organization of De- partment — Principal Officers and their Duties. VI CONTENTS CHAPTER XIII. FAQE Departments op Wak and Justice 331 War Department Organized — Duties of Secretary — Principal OfHcers — Heads of Staff Corps — Malsing Big Guns — Coast Defences — The Military Academy — At- torney-General's Office — Department of Justice Created — Duties of Attorney-General — Organization of His Department. CHAPTER XIV. The Post-office Department, 233 What are Post Routes — Postmaster-General not in Cabinet until 1839 — Mail Service in the Colonies — Franklin Postmaster and Postmaster-General — Postage Rates — Newspapers in the Mails. CHAPTER XV. The Post-office Department (Continued), . . 241 Organization — Free Delivery — Money Orders — Reg- istry — Star Routes — Ocean Mail Service — The Tele- graph—Foreign Mail. CHAPTER XVI. The Navy Department, 251 The Old Navy — Building Ships and Making Guns — Navy Yards — Militia — Apprentices — Department Created— Organization— Naval Grades — Promotions- Retirement — Enlisted Men. CONTENTS VU CHAPTER XVII. PAGE The Naaty Department (Continued), . . . .261 Marine Corps — Duties of Revenue Marine — Hydro- graphic Office — Naval Academy — Appointment of Cadets — Assignment of Graduates — Naval War Col- lege — Torpedo Station — Prizes and Prize Money. CHAPTER XVIII. The Departments op the Interior and op Agri- culture, 368 Department of Interior Established 1849 — Variety and Importance of Work — The Public Lands — How Acquired, Surveyed, and Sold — Homestead Law — Mines and Miner's Law — Census of Population, Wealth, and Industry — The Indians — No more Trea- ties — Lands in Severalty — Schools — Indian Territory — Pensions — Patents — Education — Geological Survey — Agricultural Department Created in 1863 — Made an Executive Department in 1889 — Organization — Work of. CHAPTER XIX. Independent Boards and Commissions, Smithsonian Institution — Origin of — Regents — Joseph Henry — Department of Labor — Interstate Commerce Commission — Civil Service Commission — Pish Commission — Professor Baird — The Carp a Blunder. Till CONTENTS CHAPTER XX. PASE The Judiciary, ... ^ ... . 300 A Supreme Independent Judiciary — Judicial Powers Under Confederation — Constitutionality of Laws of Congress — Of the States — Court Tries Actual Cases — Washington's Questions — Suit Against a State — Eleventh Amendment — Washington's Estimation of Supreme Court— No End to Constitutional Questions — Political Questions. CHAPTER XXI. The Jtjdiciaby (Continued), 314 Creation of Supreme Court— Number of Justices — Jay and Marshall — Tenure — Gowns and Wigs — Scope of Federal Jurisdiction — Rule in Construction of State Laws — Original Jurisdiction of Supreme Court — Cir- cuit and District Courts — Circuit Courts of Appeals — Court of Claims— High Character of Federal Judges. APPENDIX. Constitution op the United States, . . . 331 INDEX 347 INTRODUCTION Pebhaps, before entering upon a study of the structure of the Government, it may be well to speak of the relations of the citizen, in a broad way, to the political organization to which our fathers gave the name : The United States of America. God has never endowed any statesman, or philosopher, or any body of them, with wisdom enough to frame a system of government that everybody could go off and leave. To pay taxes and to submit to the laws are far short of the whole duty of the citizen. A government is made strong and effective, both for internal and foreign uses, by the inteUigent affection of its citizens. Men may stand with a fair degree of steadiness in the front of battle, out of fear of the provost-guard or of a court-martial, but only a love of the flag will send the line forward with an esprit that walls of, earth and men cannot withstand. Nothing in the late war between Japan and China — not the wonderful revelation it gave of military equipment and leadership on land and sea, on the part of the X INTRODUCTION Japanese — was so surprising as the animating and universal spirit of patriotism that the Japanese people displayed. Many young men domiciled in this country hastened home to join the army, and almost to a man, however poor, they sent a money contribution to the war-chest. One of our naval officers told me that each of the Japanese servants on his ship contributed a month's pay — and did it with enthusiasm. The Japanese thought seemed to be, " What can I give to the war ? " while the Chinese more often asked, " What can I get out of it ? " A true allegiance must have its root in love. And, siuce kings have ceased to be the state, and constitutions have put bridles upon rulers, loyalty has a better chance. Institutions have no moods. Since constitutional government has been fully es- tablished in England " the king can do no wrong " — the cabinet must answer to the country. There is a love in English hearts, and in all hearts, for the good and venerable woman who for so long has been queen of England, born of her personal virtues ; but she is loved by Englishmen more for what she personifies — the government and the glory of England. She is always for the state, never for a party — party management is left to the ministry. If we would strengthen our country, we must INTRODUCTION XI cultivate a love of it in our own hearts and in the hearts of our children and neighbors; and this love for civil institutions, for a land, for a flag — if they are worthy and great and have a glorious his- tory — is widened and deepened by a fuller knowl- edge of them. A certain love of one's native land is instinctive, and the value of this instiact should be allowed ; but it is short of patriotism. When the call is to battle with an invader this instinct has a high value. It is true that the large ma- jority of those who have died to found and to maintain our civil institutions were not highly in- structed in constitutional law ; but they were not ignorant of the doctrines of human rights, and had a deep, though perhaps a very general, sense of the value of our civil institutions. If a boy were asked to give his reasons for lov- ing his mother, he would be likely to say, with the sweetest disregard of logic and catalogues, " Well, I just love her." And we must not be hard on the young citizen who " just loves " his country, how- ever uninstructed he may be. Nevertheless, patri- otism should be cultivated — should, in every home, be commimicated to the children, not casually, but by plan and of forethought. For too long our children got it as they did the measles — caught it. Now, in the schools, American history and Ameri- can civil institutions are beginning to have more, XU INTEODUCTION but not yet adequate, attention as serious and im- portant studies. The impulse of patriotism needs to be in- structed, guided — brought to the wheel — if it is to do the every-day work of American poli- tics. Sentiment ? Yes, never too much ; but with it, and out of it, a faithful discharge of the prosy routine of a citizen's duty. A readiness to go to the field ? Yes, and equally to the primaries and to the polls. The real enemies of our country — the dangerous ones — are not the armed men nor the armored ships of the great Powers. If there is too much exuberance in the thought that we can whip the world, it is a safe saying that we can de- fend our land and coasts against any part of the world that will ever be in arms against us. We are alert as to foreign foes — the drum-tap rouses the heaviest sleepers. But we are a dull people as to internal assaults upon the integrity and purity of public administration. Salvation Army meth- ods seem to be needed in politico-moral reforms. It has seemed to me that a fuller knowledge of our civil institutions and a deeper love of them would make us more watchful for their purity ; that we would think less of the levy necessary to restore stolen public funds, and more of the betrayal and shame of the thing. A good argument might be made for the wave theory as applied to patriotism, INTRODUCTION xiii for it seems to have its ups and downs. There are eras when it rises to the combing point, and others when greed and selfishness rise above it on either side. The old-time Fourth of July celebration, with its simple parades and musters, the reading of the Declaration, and the oration that more than supplied the lack of glitter and color in the pa- rade — once the event of the year — went out of fashion. We allowed ourselves to be laughed out of it. It may be that the speaker was boastful, but a boaster is better than a pessimist. The day as a patriotic anniversary was almost lost, and a family picnic day or a base-ball day substituted. It is coming back, and we ought to aid in reinstat- ing it. The old Declaration has a pulse in it and a ring to it that does the soul good. Has your boy ever read it ? Have you — all of it ? I should like our census-takers to be required to get an an- swer to that question. I read recently, to a little eight-year-old boy, Macaulay's " Horatius." There was much that was beyond him, but he caught the spirit of the heroic verse, and his eye kindled as I read. Children are eager for true tales of heroism, and our history is replete with them. The story of Washington's army at Valley Forge, told in a familiar way, is better than Macaulay's "Hora- tius " — for the sufferings at Valley Forge were by XIV INTRODUCTION om- countrymen, for us. In the home, and before the school-days come, the feelings should be kin- dled and sentiment awakened. Do not be ashamed to love the flag or to confess your love of it. Make much of it ; tell its history ; sing of it. It now floats over our schools, and it ought to hang from the windows of all our homes on all public days. During the Atlanta campaign our army had for weeks been marching and fighting amid the timber and brush, so thick that often the right company could not see the regimental colors. The soldier knew that his corps was in line to the right and left of him ; but what a mighty, spontaneous cheer went up one day when the advancing line unex- pectedly broke into a long savannah (or meadow) and each regiment with its fluttering banners was revealed to every other. It was an inspiring sight. It is so with the peaceful forces that are enlisted for law and social order and good government. They are revealed now and then under the flag — to the patriot, a security and an inspiration ; to the evil-disposed, " terrible as an army with banners." I like to think of the flag as I saw it one night in Newport Harbor. Clouds of inky blackness had extinguished the stars, and only the harbor lights revealed to our pilot the path to the sea. Still- ness and darkness brooded over the waters and over the shores. Suddenly there was presented INTRODUCTION XV to our sleepy eyes a dazzling sight. Away up in the heavens the star-spangled banner appeared, lustrous as a heavenly vision ; its folds, waving gently in a soft night air, seemed to shine by in- herent light, and to move by inherent life. The flag was " transfigured before us," and seemed to have been flung out of the skies, rather than lifted from the earth. It was not a supernatural effect. A great search-light turned upon the flag as it himg from a high staff wrought all this surpass- ing beauty. A greater reverence for law is a sore need in this land of ours. Perhaps a better knowledge of what the laws are, how they are made, and how their defects may be remedied in an orderly way, wUl strengthen the conviction that they must be ob- sei-ved by every one. Government implies a body of rules, called laws or ordinances, proceeding from a source, whether king, or parliament, or congress, or legislature, or city council, having authority to frame and declare them. The authority to frame and declare implies a power to enforce — to com- pel obedience and to inflict penalties upon the persons or estates of the disobedient. In free rep- resentative governments, such as ours, the people, either directly or indirectly, at popular elections, choose the persons who make the laws, whether of the United States, of the States, or of the cities aod XVI INTKODUCTION towns. But the obligation to yield reverence and obedience to the laws is not diminished, but greatly- strengthened, by the consideration that they pro- ceed from the people. Laws for the government of society can have no higher origin than the con- sent of those who are to be governed by them. Who, unless it be an exiled king, can question the legitimacy, the authority, of a government " of the people, by the people, and for the people? " In these words of Mr. Lincoln we have a terse and comprehensive description of the ideal American civil system. They might be used as a spirit-level or a plummet to test the courses we are placing upon the old foundations. A government that proceeds from the people, is administered by them, and" has for its high and only end the general welfare, ought to be able to com- mand the respect, the allegiance, and the obedience of its citizens. But obligations, whether of a con- tractual, civil, or moral sort, only influence the conduct of men through their consciences or through their fears. We have not too much help when both of these conservators of social order are in strong exercise — and both should be cultivated and used. But our dependence is, and must always be, chiefly upon the educated consciences of the people. A cultivation of a love for the flag, of which I have spoken, and of a law-reverenciag con- INTRODUCTION XVU science, should be begun in childhood. This must be largely the work of parents and teachers, for they haTe the care and instruction of the young. My plea is to them, that they will stir the young hearts in their homes and schools to love the flag and the things it stands for, and teach them to have a scrupulous regard for the law as a rule of action for the citizen. They will readily understand that they should keep the law, " Thou shalt not kill," whether it is read from the Decalogue or the crim- inal code. But those laws that have, or seem to have, no moral quality in them — -that forbid the doing of things not bad in themselves — may they not be slighted or evaded if the observance of them is inconvenient or against our interest, and the penalty not too threatening ? Many laws are made necessary because we have neighbors — be- cause there are so many people. If there were not so many people using the park we might repeal the law that forbids the plucking of flowers and sub- stitute the milder rule that Senator Hoar has set up on his grounds, " Don't pull up the roots." The flowers are planted in public grounds and at the public expense, and in a sense they belong to the people ; but since there are not enough for all to pull, and as there cannot be an equal and the largest enjoyment of them in that way, the pulling of them is forbidden. All can have frequent and XVIU INTRODUCTION equal enjoyment of the flowers if the appropriation of them is by the eye, and hands are kept off. A very little child can understand this object lesson, and when it has once been received it will restrain the feet from crossing many a forbidden border. If all laws, great and small, are not to be observed by every citizen, but each is to make an elective code for himself, it is the end of civil order. If you may choose, I may, and each of us has disabled himself as a citizen. The man who participates in or apologizes for the blowing up of a saloon ought to be held particeps in the retaliatory crime — the blowing up of the church. We are having a Renaissance of patriotism, and need a Renais- sance of conscience toward the law. The man or woman who hides property from the customs officer or the tax-gatherer, or slips a fee into his hand to obtain a preference he ought not to give, cannot take the lead in a " tiger hunt." No execu- tive officer should be criticised for enforcing the law. We cannot allow him any choice ; if we do, he becomes a law-maker. The legislators, under our system, make the laws ; and if they are unwise in the opinion of a majority of the people they can be changed. But till then obey them, as you love your country and her peace. A lynching is a usurpation — a dethronement of our constitutional king — the law — and the crown- rNTEODUOTION XIX ing of a cruel and imbridled tyrant. Neither ex- cuses nor extenuation should be allowed, in a state where the courts are in the orderly exercise of their powers, and the judges are subject to impeachment. The persons who are the victims of mob "violence are mostly not the rich and the influential, but the ignorant and the friendless — those of whom an undue influence with courts and juries cannot be predicated; and the imputed crimes are mostly of a nature to exclude the sympathy of the trial offi- cers. The feet of justice may well be quickened without any loss of dignity or certainty ; but the inquest, the open trial, the judicial sentence and execution, are the constitutional rights of every man accused of crime ; and every citizen is under the highest obligation to make the case his own when they are denied to any other citizen. A lynching brutalizes those who take part in it, and demoralizes those who consent to or excuse the act. Crime is not repressed, but stimulated. The evidence has not been taken ; and to his friends the man is a victim whose blood calls for revenge. As a nation we are inexpressibly shamed by these lynchings, and a broad movement on national lines to educate public sentiment, and to enliven the slumbering consciences of our citizens, is desirable and timely. There should be a medal of honor for the sheriff or jailer who, at the risk of his life. XX INTRODTJCTION and in the face of an inflamed community, defends his prisoner against the mob. The man who loathes the guilty and cowering wretch in his custody, and yet dies to defend him from a mob because the law makes it his duty to keep him and to present him before the lawful tribunal, is worthy of a monument. I can think of no higher test of the loyalty of a soul to duty. All this has been said to impress upon my readers the fact that we live under a goYernment of law, and that our oath of fealty includes all the laws — the small as well as the great — the incon- Tenient as well as the couYenient. We should regard the law with more of the awe and reYerence given in old times to the king. If we have not consented unto each particular law that it is good, we have given to legislators chosen by us power, within certain limitations, to make laws, and have solemnly obligated ourselves to obey such laws for the time being, or until other legislators, better informed as to public sentiment or more responsive to it, shall repeal or modify them. This compact is the basis of our civil system, and the only guarantee of social order, and it follows that the scrupulous observance of it is the test of good citizenship. He who breaks one law is guilty of all, for the covenant is not divisible. It is a false and mischievous opinion that any law can be INTRODUCTION XXI voluntarily broken without guilt. I do not stop to consider real cases of conscience, such as arose under the Fugitive Slave Law, nor the ultimate right of a people to overturn a government that has ceased to subserve the true ends of government ; for our danger does not lie in the direction of the highly conscientious. The chief promoters of law- lessness are greed, corporate and individual, in its various manifestations, and the parasite of greed — anarchism. These corrupting and destructive forces assume in their campaigns the indifference of the body of the people. The forces of good order have no outposts; the whole army is gen- erally on furlough. Signal fires and minute guns, and runners carrying the torch from village to vil- lage, as in the old days of Scotland, are needed to summon the forces. We have not realized in government, any more than in mechanics, inherent and perpetual motion. It is not enough to construct and to start. Watch- fulness, administration, and love are needed to keep the best-planned government on its projected lines. Men, rather more than machines, need watching. Not only in civil affairs, but in business, especially in corporate affairs, the idea of the delegation of power and responsibility has been carried too far. The citizens or the stockholders choose officers and then go about other business — XXH INTRODUCTIOir devolving upon these officers all responsibility for good administration. That is not the true idea of the relation of a citizen to public officers. He should put himself and all his personal influence behind the faithful public officer, and confront as an accuser and prosecutor the unfaithful. This is not an agreeable duty, but it is as much a part of the covenant of citizenship that we will lend our aid in making others obey the law as that we will keep the law ourselves. Our Government is a "law and order league" in perpetuity, and the members have something more to do than to elect officers and appoint committees. Public abuses are the direct and necessary result of public indiffer- ence. The plunderers step over sleeping sentinels and take by stealth the citadels they could never carry by assault. The law and order forces, on the other hand, are without strategy; the assault in force is their only war resource. Small evils grow to be large because there is no one to take a walking-stick and kill them. Eeformers affect broadswords and columbiads. A walking-stick reformer may invoke ridicule, but enough of them will put the columbiads and broadswords out of use. We need general assemblies of the people in the smaller civil subdivisions, town meetings in which two questions only shall be considered : First, are INTRODUCTION XXIU the public officers faithfully and honestly transact- ing the public business ? Second, are the laws — not this law or that, but all laws — enforced and obeyed? The enforcement of the law, whether we opposed or aided the making of it ; the strict accountability of public officers, whether we ojjposed or aided their election, should be the objects and the limits of these meetings. There should be no distinction of persons. Our law and order move- ments are too apt to be confined to what we, not too accurately, call "influential" people. Every man and woman ought to have a chance to choose his or her side, without regard to station, or wealth, or race, or color. There will be none too many. In some such movements it has seemed to me that many have been assigned to the wrong side who would have chosen the right. There is danger that such may accept the place they would not have chosen. Can any working plan be devised to maintain from day to day an effective, watch- ful interest among the body of our citizens in the enforcement of the laws, and in a clean, honest administration of public affairs — small and great ? Or, are we to accept the humiliating conclusion that bad things cannot be made good, or even better, until they come to be persistently and utterly bad ; or, still worse, that when the river of popular indignation has cleaned the stable, it is XXIV INTEODUOTION only to leave us without a supply of water for daily sanitation ? With an ardent love for our country, with a pro- found reverence for the law, and with a new resolve to be watchful, helpful citizens, we are now ready for some familiar talks about "This Country of Ours." THIS COUNTRY OF OURS CHAPTEE I THE CONSTITUTION Manner of its Adoption — Deals with Large and Permanent Things — Three Great Departments — A Government of Specified Powers, but Supreme in Those — Not a Con- federation — Division of Powers between the Nation AND THE States. The Constitution of tlie United States was framed by a convention that assembled in Pbila- delpbia on May 14, 1787, and finished its work September 17th of the same year. The Seventh Article is as follows : " The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." On and prior to June 21, 1788, the conventions of the following States, and in the order named, ratified the Con- stitution : Delaware, Pennsylvania, ^^ ^^.^^ New Jersey, Georgia, Connecticut, '*'^' Massachusetts, Maryland, South Carolina, and New Hampshire. The other States ratified as follows : Virginia, June 26, 1788 ; New York, July 2 THIS COUNTRY OF OUES 26, 1788; North OaroUna, November 21, 1789; Ehode Island, May 29, 1790. Government under tlie Constitution was instituted by the inaugura- tion of George Washington as President, at New York, April 30, 1789. Congress had assembled on March 4th, but a quorum of both Houses was not present until April 6 th. The word "Constitution," as used among us, implies a written instrument ; but in England it anin of Js used to describe a governmental "Constitulion." system Or Organization made up of charters — as the Magna Charta — the general Acts of Parliament, and a body of long- established legal usages or customs. These are not compiled in any single instrument, as with us, but are to be sought in many places. The common American usage, in making a State Constitution, is to elect, by a popular vote, dele- gates to a convention, whose duty it is to prepare a plan of government. When the delegates have agreed, and have properly certified the instrument, it is submitted to a direct vote of the people, and each voter casts a ballot " For the Constitution " or " Against the Constitution." If a How made. , , majority vote for the Constitution it then becomes the paramount law of the State. The Legislature does not make the Constitution ; the Constitution makes the Legislature; though THE CONSTITUTION 3 the convention is assembled under an act of the Legislature. The American idea is that constitu- tions proceed from the people, in the exercise of their natural right of self-government, and can only be amended or superseded by the people. Whatever one Legislature or Congress enacts the next one may repeal, but neither can repeal or in- fringe a Constitutional provision. The delegates to the convention that framed the Constitution of the United States were not, how- ever, chosen by a popular vote in the States, but by the Legislatures. Nor was the question of the adoption of the Constitution submitted in the States to a direct popular vote. The Adopted by con- Seventh Article, abeady quoted, pro- '^"''""^ estates. vided for a ratification by " conventions " of the States, but in the choice of the delegates to these conventions there was an opportunity for an in- direct expression of the will of the people as to adoption or rejection. Article Five makes this provision for amendments : "The Congress, when- ever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Con- stitution, or, on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and pur- poses, as part of this Constitution, when ratified 4 THIS COUNTRY OF OURS by the Legislatures of three-fourths of the sev- eral States, or by conventions in three-fourths thereof, as the one or the other mode of ratifica- tion may be proposed by the Congress." So that amendments are to be submitted to the Legislat- ures of the States or to conventions, as Congress may decide. The power of amendment cannot be used to deprive any State of its equal suffrage in the Senate, without its consent. Fifteen amendments to the Constitution have been adopted. Ten of these were proposed to the Amendments Legislatures of the States by the adopted by State . ^ -i -r- i Legislatures. First Congress, and ratified. The other five amendments have, in like manner, been submitted by Congress to the State Legislatures for ratification — conventions in the States not hav- ing been used in any case. It will be noticed, also, that the vote upon the adoption of the Con- stitution, and upon amendments thereto, is by States — each State, without regard to its popu- lation, having one vote. But while these pro- visions make the popular control less direct than is usual in the States, and necessarily recognize the States in the process of making and amend- ing the Constitution, the idea that Constitutions proceed from the people is not lost. A Constitution should, and usually does, deal only with large and permanent matters. It leaves THE CONSTITUTION 5 details and transitory matters to the Legislature. It is an outline or frame. It establishes and defines the powers of the Legislative, Execu- j^^ „^y ^.^^ tive, and Judicial Departments, re- ^^^ '"»'**"• serves certain great natural rights of the citizen ; declares what principal officers shall be elected; prescribes their duties ; provides for a succession in case of a vacancy, and for the removal from office of officers guilty of crime or the abuse of their powers. It is the supreme law of the land. The powers given by the Constitution to the Na- tional Government are, fortunately, couched in general and comprehensive terms. For if there had been an attempt to particularize, the instru- ment would not have adapted itself to the expan- sion of the country, and to the new phases which invention has given to commerce. If the framers of the instrument had been required to express themselves upon the question whether the National Government should be given the power to regulate the method of coupling the wagons that were then the vehicles of the limited inland commerce be- tween the States, or to arrest and punish any citizen who obstructed their passage, the vote- would probably have been in the negative. But the railroads have demonstrated the reasonable- ness, and even necessity, of such national regula- tions. 6 THIS COUNTRY OF OURS The general plan of our Constitutions, National and State, is a division of Government into three Three great de- branches : the Legislative, the Execu- partments. ^.-^^^ ^^^ ^j^^ Judicial. The lines of this division of powers are not strictly observed in the National Constitution, for the President has something to do with legislation, and the Senate with executive appointments. But in a broad way it may be said that there are three co-ordinate and independent departments in our Government — the powers of each being classified and defined, and neither having the power to invade or subordinate the functions of the others. It is important here to note a difference between the powers of the National and of the State Governments. The original thirteen States were organized as States, and had each adopted a State Constitution before the Constitution of the United States was framed or adopted, save that in Connecticut the Charter of 1662 was continued in force as the organic law of the State until 1818, and in Ehode Island the Charter of 1663 was, in like manner, continued in force until 1842. All the powers of government, save such as had, by a compact between the States ArHcies of Con- Called " Articles of Confederation and Perpetual Union," been given to the Continental Congress, belonged to the States. The powers given to the Congress by the Articles of THE CONSTITUTION 7 Confederation were vague and illusory. They were practically nil. For, wliere a power was given, the means necessary to its exercise were withheld. There was no effective union of the States, and nothing that could be called a National Government until the Constitution was adopted in 1789. Before that we had a Congress consisting of a single body of delegates. All votes were taken by States — a majority of the delegates from the State casting the vote of the State. There was no Sen- ate, no separate Executive Department, and prac- tically no Judiciary. The Congress, either by the whole body or by committees, performed the neces- sary executive functions : commissioned officers ; raised and disbursed revenue ; conducted our di- plomacy ; audited accounts, and exercised certain judicial functions. It was a weak attempt to or- ganize a Government, but it answered so long as the common peril of British subjugation lasted. When that threat was withdrawn by the peace of 1783 the selfishness and jealousies of the States became intense and threatened to snap the feeble bonds that held them in union. The Congress became the laughing-stock of the country, and the best men shunned it. It had contracted debts in the prosecution of the war ; and, the States neg- lecting or refusing to pay their quotas. Congress was protested and dishonored, for it had no power 8 THIS COUNTBY OF OURS to lay and collect taxes. It had made commercial treaties with foreign Powers, and the States refused to allow in their ports the privileges guaranteed by the treaties. Congress was a mimic show, the butt of jealousy and ridicule. Great things were demanded of men who could do nothing. Each State made its own tariff law. If one, with a view to raising money to pay its pressing debts, state jealousies ^^^d a high rate on foreign goods im- and conflicts, ported, another would adopt a lower rate to attract commerce to its ports. It was hpnce impossible for the States to make a beneficial use of the power to levy duties on foreign goods. And besides, commerce between the States was hindered and bad blood engendered by duties levied by one State on goods coming from another. New York laid a duty on firewood comiilg down the Sound from Connecticut, and upon garden truck crossing the river from New Jersey. Out of these and many like things grew the conviction in the minds of our statesmen and people that " a more perfect union " was necessary ; that we must have a National Gov- ernment, to which should be entrusted all those general powers affecting especially our relations with foreign countries, and the relations of the States with each other, and including such as were necessary to the general defence and welfare. It is not possible here to go into the details of the in- THE CONSTITUTIOM" 9 tensely interesting events and discussions that led the people of the States reluctantly to surrender to the general Government adequate national powers. Some of our statesmen of that time were wise and unselfish, having a dim view of the glory to be re- vealed ; but petty State jealousies, and the childish fear that the Union would oppress the States, well- nigh thwarted its formation. The proposed general government seemed to be regarded as if it were to be foreign in its control and purposes, and the powers asked for it as involving a surrender of the liberties of the people. So that, practically, when the Constitution of the United States was under consideration the question was. What powers will the people of the States consent to withdraw from the States and give to the National Government ? The answer was expressed in the Constitution. AH this has been said with a view to illustrate the fact that the National Government is one of specified or particular powers. Con- ^ g<„enimeBt of gress may not legislate upon all sub- Bpecmed powers, jects, but only upon those subjects submitted to its control by the Constitution. The United States Courts cannot entertain all suits, but only such as involve particular subjects, or such as are between particular persons, as these are specified in the Constitution. The language of the First Article of the Constitution is, " All legislative powers herein 10 THIS COUNTRY OF OUKS granted shall be vested in a Congress," etc. The States, on the other hand, have full legislative and judicial powers over all subjects, except such as have been committed by the Constitution of the United States to the National Government or pro- hibited by that Constitution to the States. But the exercise of these powers by the State Courts and Legislatures is in many particulars further re- strained by the State Constitutions, so that there are some things that neither the United States nor a State can do — things reserved to the people, things they do not want done. In other words, the United States may do what it is authorized by the Consti- tution to do, while a State may exercise all appro- priate acts of government except such as belong to the Nation or are reserved by the Constitution of the United States, or of the State, to the people. No question can ever be made as to the consti- tutionality of an Act of the British Parliament, British consti- for that body is invested with gen- tution. ^^^ ^^^ supreme legislative power. Mr. Bryce says : In England and many other modem states there is no difference in authority between one statute and another. All are made by the Legislature ; all can be changed by the Legislature. What are called in England Constitu- tional statutes, such as Magna Charta, the Bill of Rights, the Act of Settlement, the Acts of Union with Scotland THE CONSTITUTION 11 and Ireland, are merely ordinary laws, which could be repealed by Parliament at any moment in exactly the same way as it can repeal a highway act or lower the duty on tobacco. . . . Here therefore we observe two capital differences between England and the United States. The former has left the outlines as well as the details of her system of government to be gathered from a multitude of statutes and cases. The latter has drawn them out in one comprehensive fundamental enactment. The former has placed these so-called Constitutional laws at the mercy of her Legislature, which can abolish when it pleases any institution of the country, the Crown, the House of Lords, the Established Church, the House of Commons, Parliament itself. The latter has placed her Constitution altogether out of the reach of Congress, providing a method of amendment whose diflSculty is shown by the fact that it has been very sparingly used. ' Under our system every Act of Congress or of a State Legislature is subject to be nullified if the courts adjudge it to be in conflict, in the case of a State law, with the Constitution of the State or of the United States, and in the case of an Act of Congress, with the National Constitution. The Constitution of the United States, and the public treaties and Acts of Congress within the Constitutional limits, are superior to and dominate all State Constitutions and laws. It is enough to ■ The American Commonwealth, vol. i, pp. 237, 238. 12 THIS COTTNTRY OF 0TJE8 say here, in a general way, that the powers of the National Government embrace all those things The Supreme necessary or incident to the dignity Law-itsBcope. ^^^ g^f^^y ^^ ^j^e j^ation ; all matters affecting our relations, whether of a commercial or a diplomatic character, with other nations ; all matters relating to commerce between the States and to controversies between States; the public defence ; the public lands ; the Indian tribes ; naturalization of foreigners; the postal service; the granting of copyrights and patents ; the coin- ing of money ; the fixing of a standard of weights and measures, and the power to levy and collect taxes in specified ways for public uses. It will be seen that a long list of powers is re- served by the States. In a general way this list Powers reserved embraces all those matters that re- to the states. j^^^^ ^^ j^^g^j control and government. The local control of local affairs is as essential as the national control of national affairs. The Tenth Amendment to the Constitution is as fol- lows : " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." What the powers " delegated to the United States " are has been stated in a general way. The powers "prohibited by it to the States " are that no State shall enter into any THE CONSTITUTION 13 -treaty, alliance, or confederation, or grant letters of marque and reprisal, or coin money, or issue bills of credit, or " make anything but gold and sil- ver coin a tender in payment of debts," or pass any bill of attainder, or ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility, or, without the consent of Congress, lay any impost on imports or exports, except it be necessary in the execution of its inspection laws, or any tonnage duty, or keep troops or ships of war in time of peace, or enter into any agreement or compact with another State or with a foreign power, or engage in war unless invaded or in im- minent danger of invasion, nor can any State insti- tute slavery, or abridge the privileges or immuni- ties of citizens of the United States, or deprive any person of life, liberty, or property without due proc- ess of law, or deny to any person within its juris- diction the equal protection of the laws, or assume or pay any debt incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of slaves, or abridge the right to vote on account of race, color, or pre- vious condition of servitude. The next thing that it is important to notice is that our Government is not a confederation of States, but as strictly a government of the people as is any state government. The Articles of Con- 14 THIS COTJNTEY OF OTTES federation were declared to be "Articles of Con- federation and Perpetual Union between the States Not a confeaer- of New Hampshire, etc." — naming *''""• each of the States. Bnt the pre- amble of the Constitution is : " We the people of the United States, in order to form a more per- fect union, establish justice, insure domestic tran- quillity, provide for the common defence, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain 'and establish this Constitution for the United States of America." It is true that the vote upon the adoption of the Constitution was, and the vote upon amendments is, by States, in State conven- tions or in State Legislatures ; and that in various other ways the States are recognized and used in the administration of the National Government. It could hardly have been otherwise. But the con- struction of Mr. Calhoun and of the Secessionists that our Constitution is a mere compact between independent States ; that any State may withdraw from the Union for any breach of the conditions of the compact, and that each State is to judge for itself whether the compact has been broken, has no support either in the history of the adoption of the Constitution or in the text of the instrument itself. In the plan of government proposed to the Con- THE CONSTITUTION 15 vention by Mr. Randolph, of Virginia, the Con- gress was to have power " to call forth the force of the Union against any member of the Union failing to fulfil its duty under the articles there- of." 1 The Constitution and laws of the United States take hold of and deal with each individual, not as a citizen of this or that State, but as Laws lay hold of a citizen of the United States. Each "'^ '=''^°- of us owes allegiance to the United States — to obey and support its Constitution and laws ; and no act nor ordinance of any State can absolve us or make it lawful for us to disobey the laws or re- sist the authority of the United States. We owe another allegiance, each to his own State, to sup- port and obey its Constitution and laws, pro- vided these do not conflict with the Constitution and laws of the United States. In the Sixth Article of the Constitution of the United States it is written : " This Constitution, and the laws of the United States which shall be made in pursu- ance thereof, and aU treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any- thing in the Constitution or laws of any State to the contrary notwithstanding." There can be, in » Elliot's Debates, vol. v., p. 128. 16 THIS COUNTRY OF OUKS a proper Constitutional sense, no secession and no war between a State and the United States ; for no State ordinance repudiating the national authority, or organizing resistance to it, can have any legal sanction. This general sketch of the powers of the Na- tional Government will be followed by an examina- tion of the provisions relating to each of its general subdivisions, and by a study of their practical operations. CHAPTEE II THE CONGEESS Cnder thb Confederation, one House— Two under the Con- stitution — Apportionment of Representation — Qualipi- CATIOVS AND PaZ OP SENATORS AND REPRESENTATIVES — Their Terms — Power of Congress over Times and Man- ner OF Choosing— Times op Meeting of Congress — Classi- fication OF Senators — Secret Sessions. The Congress under the Articles of Confedera- tion consisted of a single body. This system was contrary to all the experience of the congressof Confederation a colonists. The Parliament of the single body. mother country consisted of two Houses, and the colonial governments very soon and very gener- ally adopted the bicameral system. Mr. Curtis says : "So fully was the conviction of the prac- tical convenience and utility of two chambers es- tablished in the Anglican mind that, when repre- sentative government came to be established in the British North American Colonies, although the original reason for the division ceased to be applicable, it was retained for its incidental ad van- There were no lords and commoners in Amer- ' Curtis's Constitutional History of the United States, p. 396 . 2 18 THIS COUNTRY OF OURS ica to suggest legislative houses in whicli each should be separately represented, but the Got- emor and Council stood in a more or less strict sense for the King, and the need of the counter- balance of a popular assembly was felt in the Col- onies. The use of the system became a habit of government. When the States came to frame First state Leg- their first Constitutions, all of them, Islatares nearly all ■ n ,-n • bicameral. except Pennsylvania and Georgia, provided a Legislature composed of two Houses. But the use of two Houses presupposes that for the added House there shall be a different method pi selection, or a different tenure of office, or both. It was not easy to provide a second House for the Confederation — for the States were not yet ready to admit the idea of a representation based on population. The representation must be by States, and the votes by States — the smallest State hav- ing the same weight as the largest in determining every question. The delegates were mere State agents, subject to recall at any time, and a second chamber composed in the same way would only have been an encumbrance. And further, the Ar- ticles of Confederation provided for no separate Executive Department, but committed all execu- tive duties to Congress, and for the exercise of executive powers a single body was better than two. When the Constitution came to be framed, THE CONGRESS 19 and concurrence had been reached upon the propo- sition that the Government was to be endowed with full national powers, there would have been practical unanimity for a Legislatui'e of two Houses, but that the old demand that the repre- sentation be by States, in order to save the smaller States from the domination of the larger, stood in the way. The compromise finally hit upon made two Houses essential. A House of Kepi'esentatives whose members were to be chosen upon the basis of population, for a term of two years, and a Senate Two Houses of Cong res s — T h e to be composed of two members from compromise, each State, chosen by the Legislatures, for a term of six years, solved the apparently irreconcilable difference in the Convention. The contention for a vote by States, however, had to be abandoned. Bhode Island has as many Senators as New York, but the roll of the Senators, not of the States, is called on a vote. In the Congress of the Confed- eration if a majority of the representatives of a State voted " yea," the vote of the State was re- corded in the affirmative — no account being taken of the minority who voted " nay." If the vote of the State was equally divided it was not counted. But in the Senate each Senator is called and his vote recorded, and it very often happens that one Sena- tor from a State votes " yea " and the other " nay." 20 THIS COUNTRY OF OURS It is curious to note that the plan of govern- ment proposed by Mr. Eandolph, of Virginia, in the Convention, provided for the election of the Sena- tors by the House of Bepresentatives out of a num- ber of persons nominated by the State Legislatures. The Constitution declares that the " Congress of the United States " shall " consist of a Senate and House of Bepresentatives." The two bodies constitute the Congress. Popularly, only a mem- ber of the House of Bepresentatives is spoken of as a " Congressman " or a " Member of Congress," A Member of ^^^' ^^ isict, those terms are just as congreBs. ^j.^^y descriptive of a Senator as of a member of the House — for a Senator is a member of Congress. The members of the House are elected directly by the people — the Senators indi- rectly. That is, in the election of a member of the House each voter in his proper district puts his own ballot into the ballot-box for the person he desires to have chosen ; while in the choice of a Senator the vote is given for a member of the State Legislature, with more or less infor- mation as to whom the member, if elected, will Election and support for Senator. The members a^u d^ i^prSenta- of the House are chosen every two years, the Senators every six years. The total number of the members of the House is not fixed by the Constitution, but it is limited : THE OONGKESS 21 " The number of Representatives shall not exceed one for every thirty thousand " of population — ex- cept that each State shall be entitled to at least one. A census of the population was required to be taken within three years, after the adoption of the Constitution, and every ten years thereafter, and this census is made the basis of the apportion- ment of the Bepresentatives among the States. But an agreement as to this fair rule of apportion- ment was not reached without diffi- Apportionment culty, owing to the fact that some of ^S"S'*pS- the States had a large slave popula- tion. If only free persons were counted the influ- ence of such States would be greatly reduced, and their delegates, therefore, insisted that the slaves should be enumerated. They were, by the laws of the States where they were held, property — chattels to be bought and sold — and there was no more reason why they should be counted than the mules and oxen they drove to the plough. But the States of the South, where the body of the slave population then was, were insistent, and it was finally agreed that in making the enumeration of the population there should be added " to the whole number of free persons, including those bound to service for a term of years, and exclud- ing Indians not taxed, three-fifths of all other per- sons." These " other persons " were the African 23 THIS COUNTEY OF OTJKS slaves, and the provision meant that three out of every five slaves should be counted just as if they were free persons. It is curious to note in all of the provisions of the Constitution intended to protect property in The Thirteenth, sl^^^s, the careful avoidance of the IZS^AmeSd^ use of the word " slave." It is not ments. found in the instrument until we come to the Thirteenth Amendment, which abol- ishes slavery. The Fourteenth Amendment con- tains important limitations upon the old rule for the apportionment of members of the House of Eepresentatives. It omits the phrase " aU other persons " — for there were no longer " other per- sons " — and drops the word " free " because now all were free. It followed as one of the results of emancipation that two-fifths of the black popu- lation in the old slave States before uncounted were now to be counted, and the representation of those States in the House of Representatives was proportionately increased. But in some of these States, under the power to determine the qualifi- cations of voters, the Legislatures had in one way or another deprived the freedman of the right to vote, and in others he was without law excluded from the ballot-bos. He was counted in the ap- portionment, but not in the balloting. To remedy this miscarriage and injustice it was provided in THE CONGRESS 23 the Fourteenth. Amendment that when the right to vote for Electors for President, Representatives in Congress, or State officers is denied to any of the male inhabitants of the State, of the age of twenty-one years, and citizens of the United States, except for crime, the basis of representation in such State shall be reduced in the proportion that such excluded persons bear to the whole number of male citizens twenty-one years of age. This provision relates to action by the State in denial of the right to vote, and does not cover the case of a denial resulting from the lawless acts of individ- uals. It has never been put into operation in the case of any State. The Fifteenth Amendment provides that neither the United States, nor any State, shall deny or abridge the right of any citizen to vote "on ac- count of race, color, or previous condition of servi- tude." The first House of Eepresentatives was com- posed of sixty-five members. The Apportionment Act of February, 1891, fixes the total First Honee of number of members at three hundred ^p^^^^^"^^- and fifty-six. The delegates from the Territories have no vote and are not included in the appor- tionment ; and if to these are added the represent- ative from the new State of Utah, the total number of members and delegates is now three hundred and 24 THIS COUNTRY 01' OURS sixty. The first apportionment, made by the Con- stitution itself, upon estimates as to the population of the States, furnishes some interesting compari- sons with the apportionment of 1891. Two States have fewer members now than they had in the first Congress — Connecticut then had five, now only four; New Hampshire then had three, now only two. Three States have now each precisely the same number of members they had in the first Congress — namely, Virginia, ten; Maryland, six, and Delaware, one. The representation of Vir- ginia in the first Congress was larger than that of any other State — Pennsylvania and Massachusetts following with eight each, and New York and Mary- land with six each. Now, New York has thirty- four, Pennsylvania thirty, and Maryland its orig- n ^T. „* „™ inal six members. It should be noted, GrowtQ of new ' States. however, that West Virginia has four members, who should be taken into the account as representing districts formerly a part of Virginia. The old thirteen States have now one hundred and thirty-seven members, and the new States two hundred and twenty. Mr. Gerry, a member of the Constitutional Con- vention, foresaw that the seat of empire might take its way westward, and proposed "that, in order to secure the liberties of the States already confederated, the number of representatives in the THE CONGRESS 25 first branch (House of Representatives), of the States which shall hereafter be established, shall never exceed in number the representatives from such of the States as shall accede to this Confed- eration." He feared the new States would " op- press commerce, and drain our wealth into the western country." His amendment was lost by the close vote of four States to five, and this very narrow majority was probably seciured by the confident prediction of Mr. Sherman that the new States would never outnumber the old.' There were fears expressed in the Convention that the number of Kepresentatives would be kept so low that the House would not be a safe and popular body, but experience has shown that the tendency is to unduly enlarge the membership rather than to unduly contract it. It has been said that every public assembly consisting of more than one hundred members is necessarily a mob, and there have been frequent occasions when the casual visitor to the gallery of the House of Kepresentatives would have found in what he saw a verification of the saying. But these are excep- tional incidents, and though the order maintained is often bad, and never quite good, the public business is transacted on the whole with credit and safety. The size of the House, however, re- ' Elliot's Debates, vol. 5, p. 310. 26 THIS COUNTEY OF OUKS quires stringent rules — that speeches be brief and that the Speaker have a severe control of the pro- Euies of House ceedings. The previous question, or aud Senate — clO- . <. ia. . i or j tore. some lorm oi cloture, to cut on de- bate and dilatory motions and bring the House to a prompt vote on the main question, is essential in so large a body, and, indeed, in any legislative body. The Senate has always refused to adopt any form of cl6ture, and debate there runs on with no limit. When filibustering and quorum-breaking ap- pear in any legislative body, its effectiveness and usefulness can only be restored by the cloture and by noting the presence of non-voting members. So long as the dignity and self-respect of the Sena- tors were effective to exclude these evil practices, the corrective rules could be dispensed with. But that day is a memory. The cloture may be made liberal, giving ample time for discussion and am- ple opportunity for amendment — the essential thing is that a vote may at some reasonable time be secured. The qualifications of a member of the House are that he shall have been seven years a citizen of the QnairficationB of United States, shall be twenty-five Eepresentatiyes '' and Senators. years of age, and an inhabitant of the State in which he is chosen. A Senator must have been for nine years a citizen of the United States, THE CONGRESS 27 be thirty years of age, and an inhabitant of the State for which he is chosen. Section 3 of the Fourteenth Amendment to the Constitution provides that no person shall be a Senator or Kepresentative in Congress who, having, as a member of Congress, or as a legislative, execu- tive, or judicial officer of a State, taken an oath to support the Constitution of the United States, afterward engaged in insurrection or rebellion against the same or gave aid or comfort to the enemies thereof. " But Congress may, by a two- thirds vote of each House, remove such disability." The Constitution provides for apportioning the members of the House to the States, but it does not prescribe the qualifications of the Electors of persons who may vote in the States Kep'^^^-"""™'- for such members — further than to say that they " shall have the qualifications requisite for electors of the most numerous branch of the State Legis- lature," and by the Fifteenth Amendment, that the right to vote shall not be denied nor abridged on account of race, color, or previous condition of ser- vitude. The States, of course, determine who shall be permitted to vote for members of the popular branches of the State Legislatures, and by the same act they determine who shall be permitted to vote for members of the National House of Repre- sentatives. If women are by the law of a State 28 THIS COUNTRY OF OUES permitted to vote for members of the popular branch of the State Legislature, they may also vote for Members of Congress. The Constitution also gives to the States the power to prescribe " the times, places, and manner Times, places, of holding elections for Senators and and manner of „ ■■ , , /-< choosing Senators Representatives, but reserves to Con- and Kepresenta- '■ ti''«8. gress the right to " make or alter such regulations, except as to the places of choosing Senators." The Congress may leave all these matters to the respective State Legislatures, or it may take them all into its own hands — except that as the election of Senators is to be by the Legisla- tures, the places of choosing them must be the ordinary places of meeting of the Legislatures— the State capitals. Congress has full power to regulate all other matters connected with the elec- Power of Con- ^^^^ *^^ Senators and Representatives, gess over election j^ ^^^ declare that members of the House shall be elected "at large" in the States — that is, that the whole number assigned to a State shall be voted for by all the voters of the State ; or it may divide the States into districts and pro- vide for the election of one member for each dis- trict. It may provide separate ballot-boxes and National election officers and canvassing boards. But all of these powers have not been exercised by Congress and for the most part the States have THE CONGRESS 29 been aEowed to regulate the manner of choos- ing Eepresentatives. The United States has, however, taken some supervision of Section of the election of the members of the ^°^'"'- National Congress. The law of 1866 provides that the Legislature chosen next before the expira- tion of the term of a Senator shall choose his suc- cessor, and that it shall proceed to do so on the second Tuesday after it assembles. On that day each House of the Legislature must vote separately, viva voce, for a Senator, and enter the result on its Journal ; the two Houses must at 12 M. the next day meet in joint session, and if it appears that the same person has received a majority of the votes in each House he is declared to be elected ; if there has been no election the joint assembly must take a vote, and if anyone receives a majority of the votes — a majority of all the members elected to both Houses being present and voting — ^he is to be declared elected. If there is still no election the joint assembly proceeds with the balloting, and must meet every day at 12 M., and take at least one ballot each day until a Senator is elected. The Governor of the State is required to certify the election, under the seal of the State, to the Presi- dent of the Senate, the certificate to be counter- signed by the Secretary of State of the State. As to the election of members of the House of 30 THIS COUNTRY OF OURS Representatives Congress has fixed the time — the Tuesday after the first Monday in November in Election of Eep- ^^'^^ second year ; has enacted that resentatives. ^-^^ members shall be elected from single districts — that is, one member from a dis- trict; that these districts shall be composed of contiguous territory and contain as nearly as prac- ticable an equal number of inhabitants ; that when an additional member is given to a State he shall be elected from the State at large until the Legis- lature redistricts the State; and that all votes shall be by written or printed ballots. Article 26 of the Revised Statutes, made up of Acts passed by Con- gress from 1865 to 1872, contains elaborate provis- ions for regulating the election of Representatives in Congress. Provision was made for supervising such elections by supervisors to be appointed by the United States Courts, and for securing a free ballot and the peace at the polls by the presence of special deputy marshals. A number of crimes against the ballot were defined and penalties allotted. These provisions were repealed in 1894. It would not be appropriate here to discuss the wisdom of such laws. Generally they were clearly within the Constitutional powers of Congress, and the question is, therefore, one of expediency. If the States provide equal and fair election laws, and these are fairly and firmly enforced, so that each THE CONGRESS 31 legal Toter can deposit his baUot freely and have it counted honestly, there is no call for the enact- ment of Federal election laws. But state Election it should not be forgotten that mem- ^^^' bers of the House of Representatives and Senators are National, not State, officers, and that the States have no inherent or exclusive right to regulate the election of such officers. Election offences com- mitted at an election for members of the National House are National offences — they injure the peo- ple of all the States. It is greatly to be hoped, and much to be preferred, that the States will so vigor- ously and so righteously regulate these elections that there may be no need for the United States to resume its Constitutional powers. But, as Mr. Story says, "Nothing can be more evident than that an exclusive power in the State Legislatures to regulate elections for the National Government would leave the existence of the Union entirely at their mercy."' The ■use of what is called the "Gen-ymander" in order to obtain an imdne party advantage in the election of members of the House ..,j^^ oerry- of Eepresentatives has become a pub- mander." lie reproach. It is the making of unfair Congres- sional districts, not having relation primarily to population and to the geographical relations of the ' Story on the Constitution, vol. 1., Sec. 817. 32 THIS COUNTRY OF OURS counties composing them, as they should, but to party majorities in the counties, with the object of giving to the party making the apportionment an undue advantage. The districts are made up to be Republican or Democratic, as the case may be, and the voters of the minority party in the State are cheated out of a fair representation in the Congressional delegation. This is a grave evU, but it may be doubted whether it would be cured, or even much ameliorated, in the long run, if Con- gress were to take into its hands the making of the Congressional districts. In the first Virginia Act for the election of Mem- bers of Congress, a division of the districts was brought about by Patrick Henry for the purpose of securing a party advantage. Mr. Bancroft says : " He divided the State into districts, cunningly restricting each of them to its own inhabitants in the choice of its representative, and taking care to compose the district in which Madison would be a candidate out of counties which were thought to be unfriendly to federalism. Assured by these iniquitous preparations Monroe, without scruple, took the field against Madison." ^ Happily this very early instance of the " Gerry- mander " failed of its purpose. Mr. Madison en- tered the canvass, and, going before the people, ' Bancroft's History of the Constitution, vol. ii., pp. 354-55. THE CONGRESS 33 defeated the design to exclude liim from the first Congress. When a Tacancy happens in the delegation from a State in the House of Eepresentatives by death or otherwise, it must be fiUed by vacancies in sen- a new election, which it is made the duty of the Governor to call, but if a va- cancy happens in the Senate "during the recess of the Legislature " the Governor of the State may appoint a Senator to hold until the next meeting of the Legislature, when the vacancy must be filled by an election. It has been, and perhaps still is, an unsettled question whether in case a State Legis- lature fails to perform its duty to choose a Senator, the Governor of the State can fiU the vacancy thus caused by appointment. The question is one to be decided by the Senate under its power to judge of the election and qualifications of its members, and perhaps pure legal considerations have not always controlled the action taken. It would seem, however, that this provision for the appointment of Senators was intended to provide for the cases where the L^jislatures could not act, and not for the cases of a refusal or failure to act. Several cases involving this question are now (1897) before the Senate. It is the plan of the Constitution that one-third of the Senators shall be chosen every two years, 3 34 THIS COUNTRY OF OUBS and in order to effect this it is provided that imme- diately after the first meeting of the Senate the senate divided Senators shall be divided into three into three classes, classes— the first ckss to retire at the expiration of two years, the second at the expira- tion of four years and the third at the expiration of six years — the full term. At the first session of Congress this provision was put into effect by this method : Three lists of the names of the Sena- tors were written on papers. One contained the names of six senators, one of seven and the other of six. The names of both the Senators from a State were not in any case placed upon the same list. Three papers of equal size were then placed in a box, and three persons were selected to draw them out. The lot determined the terms for which the Senators on the several lists should serve — one list for two years, one for four years and one for six years. When the successors of the Senators in each of these three classes were elected they were elected to serve a full term, and thereafter one-third of the Senators by the expira- tion of full terms vacated their seats every two years. In the case of a vacancy by death or resignation the election is not for a full term, but for the unexpired term. As each new State is admitted and becomes en- titled to representation in the Senate its Senators THE CONGEESS 35 are so assigned as to preserve the classification, the assignments being determined between them by lot drawn in the presence of the senators from o ml • rn ^^^ States clasBi- benate. There are now ninety Sen- fled, ators when the Senate is full — three classes of thirty each. The Senators from Utah — the last State admitted to the Union (1896) — fell into the two and four year classes, and so serve only for those periods, instead of full terms of six years. Of this provision Story says : " Here, then, is a clause which, without impairing the efficiency of the Senate for the discharge of its high functions, gradually changes its members and introduces a biennial appeal to the States which must forever prohibit any permanent combination for sinister purposes. No person would probably propose a less duration of office for the Senate than double the period of the House. In effect, this provision changes the composition of two-thirds of that body within that period." ^ The Constitution requires Congress to meet every year, and fixes the first Monday in December as the day of meeting, " unless they shall MeetingB and ad- by law appoint a different day." gress. There have been thirty-one sessions of Congress commencing on days other than that named in the Constitution. Thirteen of these (including the First ' Story on the Constitution, toI. i., Sec. 724. 36 THIS COUNTRY OF OUBS Session of the 55th Congress) have been special sessions assembled by proclamation of the Presi- dent on a day fixed by him, and in the other cases a special day of meeting was fixed by law. If Con- gress is assembled before the day named in the Constitution, and does not adjourn sooner, the coming of that day does not interrupt the session. The times of meeting and adjournment may be determined by Congress for itself, subject to these restrictions : It must adjourn without day, when the two years' term of the members of the House expires ; neither House can, during a session, adjourn for more than three days with- out the consent of the other, nor to any other place than that in which the two Houses are sitting ; and in case of disagreement between the two Houses as to the time of adjournment, the Presi- dent may adjourn them to such time as he shall think proper. The Constitution does not fix the place of meet- ing of Congress. It is fixed by law. The only reference in the Constitution to a per- Place of meeting. , . s /-w i • i. n manent seat of Government is found in the clause giving to Congress the exclusive power of legislation " over such District (not ex- ceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United THE CONGRESS 37 States." The first Congress assembled in New York in pursuance of a resolution of the last Con- gress of the Confederation. The permanent seat of GoYemment, as established by the act of 1790, is not the City of Washington, in the restricted sense, but "all that part of the territory of the United States included Avithin the present limits of the District of Columbia." ^ When the prevalence of a contagious disease or other circumstances would make a meeting of Con- gress at the seat of Government dangerous to the health or lives of the members, the law authorizes the President to assemble Congress at some other place.^ The dates for the election of Senators and Rep- resentatives are not fixed by the Constitution — that subject, as we have seen, being regulated by a law of Congress — nor does it declare when the terms of six and two years respectively, of the Senators and Eepresentatives, shall begin. The first Congress was appointed to assemble on the first Wednesday in March, 1789, which happened to be the 4th day of the month, and that date, in every second year, has ever since been recognized as the why terme of Eepresentatives day when the old Congress expu-es begin March 4th. and the new one begins. The Act of 1872 recog- nizes the usage by providing for the election of ' Revised Statutes, Sec. 1795. " Ibid., Sec. Si. 38 THIS COUNTRY OF OURS Eepresentatives " to tbe Congress commencing on the 4th day of March next thereafter." Congress must adjourn sine die on the 3d of March in each second year, but the session of the It is March 3d 3d is usually prolonged until twelve March 4th. o'clock meridian of the 4th. On the 3d of March, 1851, at twelve o'clock midnight, Mr. Mason, a Senator from Virginia, whose term ex- pired on that day and whose credentials for another term were on file, asked to have the oath admin- istered to him, upon the ground that his right to sit under his old credentials expired at that hour. The Senate refused to allow his request, and, by resolu- tion, declared that the session did not expire until twelve o'clock meridian on the 4th. The new Con- gress does not assemble and organize until the first Monday of the following December, unless the President calls it to meet at an earlier date in special session. The terms of the Senators begin at the same time as those of the members of the House — March 4. The term of office of the President is also fixed by law to begin on March 4, so that he always begins his administration with a new House of Eepre- sentatives — chosen at the same time that the Presi- dential electors were chosen. The Senate at the expiration of every Presiden- tial term is called, by a proclamation of the out- THE CONGRESS 39 ;omg President, to meet in special session imme- iiately after the adjournment of Congress, so that the members of the new Cabinet and other impor- ;ant appointments made by the incoming President may be promptly confirmed. As to the pay of Senators and members of the House the Constitution only declares that they shall receive a compensation for their Pay of senators , ■, 1 ■ n 1 T -, *id Eepresenta- services, to be ascertained by law and tives. ;o be paid out of the Treasury of the United States. [Jnder the Articles of Confederation each State maintained its own delegates to the Congress, and n the Constitutional Convention there was a strong sentiment in favor of continuing that plan. A mo- iion that Senators should be paid by their respective states was lost by the narrow vote of five States n the affirmative to six in the negative. The mem- bers of the British Parliament now receive no com- Densation for their services, but in earlier times they lid — the per diem being paid by the shire or bor- )ugh. With us the practice of paying a fixed com- jensation to members of legislative bodies has )een well-nigh universal ; but the rule has been to nake the compensation so small as not to make the jlaces attractive from a mere money point of view. Dhe pay of Senators and members of the House of ilepresentatives has been for many years $5,000 I. year. In 1873 Congress passed a law increasing 40 THIS COUNTRY OF OURS the pay to $7,500 a year, and making the increase relate to the whole term of the members of that The •• Salary Congress, then just expiring— March Grab." g^ jgyg ^ ^^^^^ popular outcry was at once made, and those who had supported the law were denounced as "salary grabbers." The pop- ular feeling was so strong that in the ensuing Jan- uary Congress repealed the law, and restored the old salaries, saving only the increases which the act gave to Justices of the Supreme Court — from $8,500 to $10,500 for the Chief Justice, and from $8,000 to $10,000 for the Associate Justices, and to the Pres- ident from $25,000 to $50,000. General Grant entered upon his second term the day after the passage of the new salary law, and, as the Constitu- tion provides that the salary of the President shall "neither be increased nor diminished during the period for which he shall have been elected," Con- gress could not, as to him, restore the old salary. So the compensation of the justices of the Supreme Court cannot be " diminished during their contin- uance in office, " and Congress was Avithout power to restore the old salaries as to the Justices then.in office. It is quite probable that if the members of the 42d Congress had not made the increase of salary retroactive, in order to participate in their own generosity, the advanced salaries would have been accepted by the country without protest. THE CONGRESS 41 Each Senator, Eepresentative, and delegate re- ceiTes mileage at the rate of twenty cents per mile, " estimated by the nearest route usually travelled in going to and returning from each regular session " of Congress. All of the sessions of the Senate (legislative as weU as executive) were held with closed doors until the second session of the 3d Con- senate at Aret , T . ,, T . held with closed gress — except during the discussion doors, in the first session of that Congress of the con- tested election of Albert Gallatin as Senator from Pennsylvania. On February 20, 1794, the Senate resolved that after the end of that session the gal- leries should be opened during legislative sittings, unless otherwise ordered. The sessions of both Houses are now generally open, and large galleries give the public access to the legislative halls. The Constitu- ^^^^^^^^ „„^ tion requires each House to keep a °^™' journal of its proceedings, and from time to time to publish the same, " excepting such parts as may in their judgment require secrecy." This, of course, implies that either House may transact business in secret session when the public interests require it. In the Senate the use of the secret ses- sion is frequent and familiar. The Senate rules provide that on a motion made and seconded to close the doors on the discussion of any matter the 42 THIS COUNTRY OF OURS doors shall be closed and remain closed during such discussion. So -when Executive nominations or treaties are under consideration the galleries are cleared and the doors closed — only Senators, Senate Execu- ^^^ Certain nccessary officers who are tive Sessions. g^om to secrecj, being allowed in the chamber. There have been .frequent attempts made to abolish the secret sessions of the Senate, but they have been ineffectual. These sessions are called " Executive sessions," because they are almost wholly devoted to Executive business — namely, the consideration of appointments to office and foreign treaties. It seems quite as necessary and appropriate that the consultations in the Senate as to appointments, and especially as to treaties, should be confidential as that the confer- ences between the President and his Cabinet, or between the President and others whom he may consult about the same matters, should be so. The rule of the House, as to secret sessions, is : " Whenever confidential communications are re- ceived from the President of the United States, House. secret or whenever the Speaker or any sessions. member shall inform the House that he has communications which he believes ought to be kept secret for the present, the House shall be cleared of aU persons except the members and officers thereof, and so continue during the read- THE CONGRESS 43 ing of such communications, the debates and pro- ceedings thereon, unless otherwise ordered by the House." Each House is the judge of the election and qualification of its own members. A contest as to which of two persons was elected Contested seats. to a seat m the House of Kepresenta- tiyes cannot be settled by the Courts, but only by a vote of the House. In the 54th Congress there were thirty-three seats contested in the House. The hearing of these cases is primarily by the Committee of Elections, and afterward by the House upon the report of the Committee. It has often happened that a contest was not decided until the very last days of a Congi-ess, and that the sitting member, whose vote may have determined an important question, was then decided never to have been lawfully elected a member of the House. CHAPTEE III THE CONGEESS Organization of each House— Ofpicebs—Ritles— Committees — Quorum— Introduction and Passage op Bills — Petitions — Revenue Bills — Appropriations — Taxing Power — In- ternal AND Foreign Commerce. The Constitution names the presiding officer of the House—" the House of Eepresentatives shall choose their Speaker." He receives a pea er. g^^j^^j.^ ^j |8,000 a year, and his office is one of the first importance and dignity. He may, under the rules, appoint a Speaker pro tem- pore for one day, and, in case of illness, for ten days, ■with the consent of the House. Under the rules ■which generally govern the House, his influence Great power of in promoting or defeating the pas- — appoints com- . mittees. gage of biUs before the House is very great. He appoints all of the committees, and in a body so large as the House of Representatives the fate of most measures is settled in committee. The Committee on E-ules consists of three mem- bers, the Speaker being one, and this committee from time to time reports special orders for the consideration of particular measures, and for bring- 44 THE CONGRESS 45 ing them to a quick vote. It may often happen that a bill is in such a position on the calendar that it is impossible to bring it forward for pas- sage under the standing rules of the House, and that its fate hangs upon the consent or refusal of the Committee on Eules to report a special order for its consideration. The Speaker, being a member of the House, may vote upon all questions, but the rules do not require him to vote except when the vote is by ballot, or when his vote would be decisive of the question. No member can speak until he has been recog- nized by the Speaker, and when two or more members rise at once, the Speaker uecognition of names the member who is to speak. members by. The question, "Which member was first up?" is never put to the House as it sometimes is in the English Parliament. As a result, members arrange with the Speaker in advance for recognition, and it is not thought to be impertinent for the Speaker to inquire what the member desires to call up. There is sometimes much fuming if the Speaker refuses to allow a bill to be called up, but this ancient and necessary rule abides ; for, while each mem- ber would like to get up his own bill, he does not fail to see that utter confusion would result if any member could call up anything at any time. The 46 THIS COUNTEY OF OURS rules are made by the House ; the restraints are self-imposed ; the Speaker is chosen and may be deposed. He must keep a majority with him. Leadership is essential, and liberty is saYed by the reserved power to change leaders. In the British Parliament the Ministry exercises a strong leadership. The House of Commons can change leaders at its pleasure — but there are always leaders. Speaking of the English system, Mr. Bagehot says: " Change your leader if you wUl, take another if you will ; but obey No. 1 while you serve No. 1, and obey No. 2 when you have gone English system. . -,.x ^ m, ■. » over to No. 2. The penalty of not doing so is the penalty of impotence; it is not that you will not be able to do any good, but you will not be able to do anything at all. If every- body does what he thinks right, there will be six hundred and fifty-seven amendments to every motion, and none of them will be carried, or the motion either." ^ The Vice-President is by the Constitution made the " President of the Senate," and in his absence The President of ^ President pro tempore is chosen the Senate. ^j.^^^ among the Senators. The con- trast between the powers and influence of the ' Bagehot's Works, vol. 4, p. 165. THE CONGRESS 47 President of the Senate and those of the Speaker of the House is very great. The Senate appoints its own committees by resolution. A caucus com- mittee of Senators of the majority party arranges an assignment of the Senators of that party on the standing committees, taking, of course, a majority of each committee and the chairmanship, and this is submitted to a party caucus for confirmation. A caucus of the minority party assigns the Sena- tors of that party to their committee places, and when this has been done a resolution of the Sen- ate establishes the committees. The Vice-Presi- dent has no influence in directing the order of business, and no vote except when the Senate is equally divided; then he may give the casting vote. He is not heard in debate — as the Speaker may be. The President of the Senate must recognize the Senator who first addresses him ; he has no dis- cretion, and any inquiry by him as to the purposes of the Senator would be indignantly resented. The constitutional presiding officer of the Senate, the Vice-President, is not chosen by the body, and may belong to the minority party in the Senate. In the nature of things he cannot be a leader, and the powers of a President pro tempore, who is chosen by the body, could not well be made larger than those of the permanent President. The ma- 48 THIS COUNTRY OF OURS jority of the Committee on Kules is of course of the majority party, but there is no previous ques- No cieture in tiou — no cloture of any kind— and Senate. g^ j^^ ^^^ ^j Securing the adoption of a special rule to bring a question to a vote. Any Senator can call up anything at almost any time and speak upon it, and a resolute minority can al- ways thwart the purposes of the majority. This is not a satisfactory condition, and strongly tends to make the Senate unsatisfactory. A majority of each House, under the Constitu- tion, constitutes a quorum for the transaction of What makes a general business. But, when the quorum. House is engaged in electing a Presi- dent of the United States, under Article XII. of the Constitution, a quorum consists of "a mem- ber or members from two-thirds of the States ; " and, when the Senate, under the same article, is engaged in electing a Vice-President, a quorum consists of " two-thirds of the whole number of Senators." There has been much dispute whether a majority of the House was to be taken as mean- ing a majority of all the members who might under the law be elected, or only a majority of the actual members — taking no account of vacancies. The latter view has probably the stronger support in the Congressional precedents. When the House of Eepresentatives is in Committee of the Whole THE CONGEESS 49 one hundred members constitute a quorum. If a quorum is not present, and that fact is disclosed, business must stop until a quorum is secured. But the members present are empowered by the Constitution to adjourn from day to day and " to compel the attendance of absent members, in such manner, and under such penalties as each House may provide." A great deal of business is done in both the Senate and House -when a quorum is not present, the absence of a quorum not having been officially disclosed by a count or a roll-call, and the point of "no quorum" not having been raised. Until the 51st Congress a quorum of the House meant in practice a voting quorum, no account being taken of members present, but not vot- ^^^ .^ ^^^ ing. In that Congress, before rules ^SSuS'S^™ had been adopted, and while the House was proceeding under general parHamentary law, a roU-caU having failed to disclose the presence of a quorum, the Speaker (Mr. Reed) counted the members present but not voting, and decided that these with the voting members constituted a quorum. This just and reasonable practice was incorporated into the rules of the House; and while, in the 52d Congress, there was a return to the old rule, the 53d, 54th and 55th Congresses have adopted the rule of counting members pres- 4 50 THIS COUNTRY OF OURS ent, but not voting, to make a quorum, and that rule is now probably permanently a part of the Not BO in the House procedure. The Senate has Senate. ^^^^ adopted this rule; and in that body voting Senators only are counted. The Su- preme Court has, since the adoption of the prac- tice by the House of counting members present but not voting, held that " when a majority are present the House is ia a position to do business," and that a rule of the House providing for count- ing members present but not voting, and adding the number of such to the number of those voting to determine the presence of a quorum, is valid. It was also held that a quorum being present the act of a majority of the quorum is the act of the House.' One-fifth of the members present, of either House, are empowered by the Constitution to de- Demand of yeas ™and a vote by yeas and nays, and and nays. ^j^^ ^^^^ must be recorded in the jour- nal which each House is required to keep of its proceedings. This journal does not include the debates, which are, however, published in full daily in the " Congressional Record." The Senators and Representatives are privileged from arrest, except for treason, felony, or breach of the peace, while in attendance upon their respective ' United States v. BalUn, 144 U. S., 1. THE CONGRESS 51 Houses, and while going to and returning from the meetings of Congress. A member may be pun- ished by the House to which he belongs for dis- orderly behavior, and by a two-thirds vote of the House may be expelled. In order to remove from Members of Congress the temptation to create oflftces for themselves the Constitution makes them ineligible duriug the term for which they were elected to appointment to any office which was created or the emoluments of which were increased during such term. Senators and Representatives are also ineligible to the office of Elector of Presi- dent and Vice-President. And no person can, while holding an office under the United States, be a member of either House. When a Senator is elected and receives his cer- tificate of election from the Governor he usually causes it to be presented to the Sen- organiziug the ate by his colleague before his own senate. term begins. The certificate is received and filed, if regular in form ; but if objection is made to the certificate, or the election is in any way chal- lenged, the questions arising are referred to the Committee of Privileges and Elections for examina- tion. The Senate is always an organized body. Its presiding officer — the Vice-President — calls the Senate to order at the assembling of a new Congress, and the Secretary, Sergeant-at-Arms, 52 THIS COUNTRY OF OURS and other officers and clerks, who hold office dur- ing the pleasure of the Senate, resume their duties. If the Vice-President is not present when the Senate assembles, the Secretary of the Senate^ or, in his absence, the Chief Clerk, performs the duties of the chair, pending the election of a Pres- ident pro tempore. The President pro tempore is entitled to call any Senator to the chair, but such a designation cannot extend beyond an adjourn- ment, unless unanimous consent is given. If the session is a regular one the presiding officer raps for order and announces that the Senate is in ses- sion pursuant to law. If the session is a called or special one the proclamation of the President con- vening the Congress, or the Senate, as the case may be, is read and entered upon the journal. The Senators-elect are escorted in groups of four (each usually by his own colleague) to the desk, and the oath of office is administered by the Pres- ident of the Senate. The rules of the Senate remain in force from one Congress to another, save as they may from time to time be modified. There is, however, a body of joint rules of the Senate and House of Representatives ; and, as the concurrence of the House is necessary, these must be re-enacted at the beginning of every Congress. In the House the process of organization is THE CONGEESS 63 quite different from that of the Senate. There are no hold-over members or officers, save that cer- tain temporary duties are devolved organizmg the by law upon the clerk of the next °°"^^^- preceding House. The law provides that he shall make a roll of the Eepresentatives-elect, placing thereon the names of those persons whose creden- tials show that they were regularly elected. The practice is that when the hour of assembling ar- rives the clerk of the preceding House calls the roll, made up from the credentials filed with him, and, if a quorum is present, announces that fact, and that the first business in order is the election of a Speaker. Nominations for that office are then made, and, under the supervision of tellers, named by the clerk from among the members, the roll is called by him, and the result announced. The oath of office is administered to the Speaker by a member of the House, the habit being to de- volve that duty upon the member who has had the longest contiuuous service— the " Father of the House," as he is called. The members from each State are then called, and the oath of office is ad- ministered to them by the Speaker. The adoption of a body of rules for the House has not always been an easy matter, and sometimes great delay and much excitement have attended the work. Often, by resolution, the rules of the last House 54 THIS COUNTRY OF OUKS are adopted to govern the proceedings until a new code is prepared and receives the concurrence of the House. If some such expedient is not adopted the House proceeds without any rules, except so far as the general rules of parliamentary law may be applicable. The House then proceeds to elect its other prin- cipal officers, viz., a clerk, a sergeant-at-arms, a Officers of the chaplain, a door-keeper and a post- ^°^^- master. The House, at its first ses- sion (1789), ordered that a suitable symbol of office be provided for the Sergeant-at-Arms, to be borne by him when executing his office. This order was executed by the Speaker by procuring a mace. The staff of the mace is a representation of the Roman fasces and is surmounted by a globe and an eagle in silver. It stands during the sessions of the House at the right of the Speaker, and is carried by the Sergeant-at-Arms when he is called upon to enforce order on the floor. When the two Houses have organized, and a quorum is present, each by resolution directs its secretary or clerk to notify the other of that fact. And in like manner, the Senate, when it chooses a President pro tempore, and the House, when it chooses a Speaker; certifies each to the other, and each to the President of the United States, the name of its presiding officer. A joint committee THE CONGRESS 55 of the two Houses is appointed to wait upon the President, and to inform him that a quorum of each House is assembled, and that Congress is ready to receive any communication that he may be pleased to make. The seats in the Senate are assigned as follows : The Senator who first expresses a preference for a vacant seat, or one to become vacant, , . ' ' AssigDmcnt of gets it. When a seat is thus assigned ^^*'^' the Senator may retain it so long as he remains a member of the Senate. In the House the seats are assigned by lot at the beginning of each Congress. When the committees are constituted the Houses are ready for the transaction of business. Legisla- tive measures are chiefly initiated by the introduc- tion of bills by individual Senators or Kepresenta- tives. In the Senate the presentation of petitions and memorials and the introduction of bills and joint resolutions are two of the orders petitions — in- called by the presiding officer each teodaction of bills, morning, and the Senators, each as he may secure recognition, present such petitions or bills as they may desire. In presenting a petition the Senator states briefly its purport and asks its reference to the appropriate committee. When a bill is offered it is carried by a page to the clerk's desk, the title is read, and an appropriate reference is ordered by the presiding officer — unless the Senate by a vote 56 THIS COUNTRY OF OURS itself directs the reference. This general practice as to the presentation of petitions and the intro- duction of biUs prevailed until recently in the House also. But, for the saving of time, the new rules of the House provide for the delivery to the clerk of petitions and bills of a private nature, the name of the member and the reference desired be- ing endorsed thereon ; and of all other bills, memo- rials, and resolutions to the Speaker, to be by him referred to the appropriate committees. The fact of presentation and the reference made are entered on the journal and published daily in Tlie Record. The reference may, of course, be changed by the House. All bills and resolutions are num- bered, printed, and laid upon the desks of the members. The numbers begin anew in each House with each Congress, thus : " S. 1," or « H. E. 1." When a bUl passed by one House is passed by the other with amendments, and the former does Passing of bills "°^ concur iu the amendments, this -Amenaments. non - Concurrence is announced and a Committee of Conference is asked for. Con- ference committees usually consist of three members from each House. They constitute really two committees, and each votes by a ma- jority. These committees report from time to time their agreements or disagreements to their respective Houses, and take the orders of those THE COWGEESS 57 bodies until an agreement is reached, or a final failure to agree is disclosed. The Houses com- municate their proceedings each to the other by messages delivered by the Secretary or Clerk, thus : The Secretary of the Senate appears in the House, is announced by the doorkeeper, addresses the Speaker, and having been recognized, delivers his message, as : "I am directed by the Senate to inform the House that it has passed Senate bill No. [giving the title] and that the concurrence of the House therein is respectfully requested." The bill is sent to the Speaker's desk and the message is entered in the journal. If the bill is passed by the House it is car- ried back to the Senate by the clerk of the House with a message announcing the action taken. It is then enrolled, signed by the President ' ° -^ . . Signing of bUla. of the Senate, the fact of signing being announced to the Senate and entered on the jour- nal, is carried again to the House, signed by the Speaker, the fact of signing being announced and entered as in the Senate, and is then ready to be sent to the President for his approval. If the Pres- ident approves the biU he notifies the House in which the bill originated of his approval, and the fact is by that House entered on its journal and communicated to the other House. A complete history of the bill is thus preserved in the journals. 58 THIS COUNTRY OF CUES Kevenue bills, such as a general tariff bill, and bills appropriating money for the support of Eevenue wiis- *^^ Government, originate in com- appropriations. ^ittee. The Treasury Department collects from all the other Departments es- timates of the amount of money needed for the next fiscal year, and, adding the estimates for his own Department, the Secretary of the Treasury compiles them in a book of estimates, which is printed and sent to Congress at the beginning of each regular session. These estimates are the basis of the appropriation bills; but the com- mittees do not follow the estimates closely — now refusing to give anything for a specified object, and now giving much less than is asked. If too little has been given a deficiency bill at the next session supplies the lack. In the House the Committee on Ways and Means takes control of all revenue bills, and in the Senate the Finance Committee has them in charge. Until recently the Committees on Appro- priations of the House and Senate had charge of all general appropriation bills, but now in the House that committee has charge only of the appropriations for legislative, executive, and ju- dicial expenses, for sundry civil expenses, for forti- fications and coast defences, for the District of Columbia, for pensions, and for all deficiencies ; THE CONGEESS 59 while the other appropriation bills are prepared by the committees having general charge of the legislation relating to the department appropri- ated for ; thus, the army appropriation bill by the Committee on Military Affairs, the naval appro- priation bill by the Committee on Naval Affairs, etc. In the Senate the Committee on Appropri- ations still has charge of all general appropri- ation bills, except those for rivers and harbors, which are referred to the Committee on Com- merce. A bill not passed by both Houses fails at the end of the Congress, and must be again intro- duced in the next Congress, if its further consid- eration is desired. Only a few of the specified powers of Congress can be mentioned here. A very important ex- clusive function is given to the Revenue bills TT « » 11 1 -n !■ • • ™"^' originate in House : " All bills tor raising rer- the Honse. enue shall originate in the House of Representa- tives ; but the Senate may propose or concur with amendments as on other bills." So runs Section 7 of Article 1. There was much discussion in the Convention over this clause. After much debate the following resolution was adopted by a vote of five States to four : Sesolved, That all bills for raising or appropriating money, and for fixing the salaries of officers of the Gov- 60 THIS COUNTRY OF OTJES eminent of the United States, shall originate in the first branch of the Legislature of the United States, and shall not be altered or amended in the second branch ; and that no money shall be drawn from the public treasury but in pursuance of appropriations to be originated in the first branch. ' This resolution left to the Senate only the power to negative bills for raising revenue, bills making appropriations, and bills fixing salaries. It could not propose the expenditure of the smallest sum from the public treasury, nor the modification of a tariff bill sent to it, in the smallest particular. Its power would have been like that of the Presi- dent, to approve or to veto, save that the veto was absolute, for no bill could become a law that the Senate rejected. Mr. Wilson, of Pennsyl- vania, said in the Convention that, as there were to be two strings to the public purse, one in the hands of the Senate and the other in the House, " of what importance could it be which untied first, which last ? " Subsequently the resolution was reconsidered by a vote of four States to seven. The clause as adopted, it will be observed, gives to the House the exchisive power of originating "bills for raising revenue," but leaves the Senate full powers of amendment. A bill for raising 1 Elliot's Debates, vol. 5, p. 316. THE CONGRESS 61 revenue must first pass the House, but when it reaches the Senate it may be so amended as to be practically a new bill. It will be noticed that as originally proposed the clause embraced all bills appropriating money from the Treasury, and all bills for fixing official salaries, and that these provisions were stricken out. There can be no doubt, I think, ^^^^ „^ that appropriation biUs and bills fix- p"''«<»"'M=- ing salaries may constitutionally originate in the Senate. Many bills appropriating money do, in fact, originate there, such as bills granting pen- sions, for the payment of claims, etc. ; but a prac- tice has grown up that all of the general appro- priation bills, such as the Legislative, Executive, and Judicial, the Army and Navy, the Sundry Civil, the Deficiency, the Indian, etc., shall originate in the House. This practice has become so settled that the House would probably refuse to consider a general appropriation bill sent to it by the Senate. Justice Miller, in his lectures upon the Constitu- tion, remarks upon the singular fact that so little comment is to be found upon this clause of the Constitution, and though himself holding that under our system the origination of appropriation bills is not within the exclusive power of the House, he adds that " this has been the practice now for 62 THIS COUNTRY OF OURS SO long a time that it may be doubted whether it will be seriously questioned." ' Washington scrupulously recognized in his addresses the exclusive power of the House to ■Washington's Originate revenue bills. In his first formofaSdreBs. inaugural address he introduced the statement of his purpose to have the estimates for the pay of the President limited to his actual expenditures by saying that the request " will be most properly addressed to the House of Eepre- sentatives." In his annual addresses also, deliv- ered to a joint assembly of the two Houses, all suggestions as to revenue were introduced by the specific address: "Gentlemen of the House of Representatives." One of the most important and necessary powers of government is the taxing power. It was essen- The taxing ^^^^ *^^* *^® United States should power UmitationB. j^^^g ^^^^ powers, and it was desir- able that its revenues should be as far as possible derived from sources that the States could not fully or at all avail themselves of. Duties on imports are essentially such. It was essential, too, that the regulation of foreign commerce should be single and uniform, and obviously just that the imposts laid upon such commerce should be used for the benefit of all the States. So the excise taxes now ' Miller on the Constitution, p. 204. THE CONGRESS 63 laid on whiskey and tobacco, and formerly upon many other articles, are taxes that are not fully available to the States. They must be uniform in the whole country, so that the manufacturer may not find the burden lighter in one State than in another. In practice, these sources of revenue are adequate for ordinary times. But they might prove inadequate to the national necessities, espe- cially in war times. It was essential that in times of national stress all of the resources of the country should be subject to the taxing power of the nation. Section 8 of Article 1 provides that, " The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States." The scope of the taxing power is limited by a declaration of the purposes for which it may be used, but these are very broadly stated. And there are also several limitations as to the manner of exercising it. It is provided that all duties, imposts, and excises shall be "uniform throughout the United States"; that "no capitation, or other direct, tax shall be laid, unless in proportion to the census or enumera- tion hereinbefore directed to be taken " ; that " no tax or duty shall be laid on articles exported from any State " ; that " no preference shall be given by any regulation of commerce or revenue to the ports 64 THIS COUNTRY OF OUES of one state over those of another ; nor shall ves- sels bound to, or from, one State, be obliged to enter, clear, or pay duties in another." The power to lay imposts or duties on imports or exports, except such as are absolutely necessary for exe- cuting their inspection laws, is expressly denied to the States, unless Congress consents, and then the net revenue derived is to be paid into the United States Treasury. Duties, imposts, and excises must be uniform, but they have no relation to population. A distil- ler of spirits in Indiana cannot be required by the United States to pay a higher tax per gallon than is exacted of a distiller in Illinois ; but it may happen that the aggregate tax collected in Illinois is many times greater than the aggregate collected in Indiana, because of the larger production of spirits in the former State. But as to " capitation or other direct taxes " the Constitution provides that they shall not be laid " unless in proportion to the census or enumeration hereinbefore directed to be taken." The United States, when it resorts to direct taxation, first fixes the amount to be raised, divides that sum by the total population of the United States, to ascertain how much it will be per capita, and then multiplies this per capita by the population of each State. The result deter- mines how much the people of each State must pay. THE CONGRESS 65 The distinction between a direct and an indirect tax is not always easily taken. In the recent In- come Tax case the Supreme Court jj-^.^^^. ^^^ .^^. held that a tax on incomes is a rect taxes. tax on the property from which the income is de- rived, and therefore a direct tax. The power given to Congress " to regulate com- merce with foreign nations, and among the several States, and with the Indian tribes," is one of the broadest and most essential of its enumerated powers. The commerce " among the commerce T oj , )) ,1 ■ > among the several States — the carrying of mer- states. chandise and passengers from one State into an- other, by the railroads and canals, and by river, lake, and coast-wise vessels — has grown to enor- mous proportions, greatly surpassing our foreign commerce. The great bulk of our exports and im- ports becomes part of this interstate commerce, in its transit to or from the great sea-ports. Nearly all railway passenger trains, except the suburban trains — and many of them — are engaged in inter- state commerce. Nearly every freight-train has some cars billed from points in one State to points in another. The tracks, engines, and cars are all instruments of this commerce. And so of all the steam-boats on the Ohio, the Mississippi, and other rivers that traverse more than one State. Ferry-boats become agencies of interstate com- 5 66 THIS COUNTKY OF OUES merce when the waters they traverse di"vide States. The telegraph also is an agency of commerce be- tween the States. The exclusive power reserved to Congress to regulate this commerce and the instruments with which it is conducted is one of ever-widening application. The laws for the inspection of steam-vessels, the licensing of their LawsregniaHng officers, requiring certain safety ap- commerce. pliances, limiting the number of pas- sengers that may be caiTied, requiring air-brakes and automatic couplers on freight-cars, and the Interstate Commerce Law are all exercises of the power of Congress to regulate commerce. A State may regulate fares and freights from one point in the State to another, but it cannot lay any re- straint or regulation upon the carrying of pas- sengers or freights out of the State into another State, or from another State into it. If a railroad is engaged in interstate commerce its tracks in every State in which they are laid are a part of the interstate line, and as such are, in a measure, sub- ject to be regulated by Congress, and may be pro- tected by the National Government. This power over these agencies of commerce is further broadened by the fact that they are also the agencies of the postal service. The statutes of the United States declare all the waters of the United States, during the time the THE CONGRESS 67 mail is carried thereon ; all railroads or parts of railroads which are now or hereafter may be in operation ; all canals and plank-roads, ^J^ ^^^^^^ ^^^ during the time the mail is carried commerce, thereon, to be "established post-roads." The roads of commerce are also " post-roads " ; and the obstructing or retarding of the passage of the mails over such routes is an offence against the laws of the United States, punishable in the Courts of the United States. In like manner the obstruc- tion of the transportation of passengers or mer- chandise from one State to another, is an offence against the United States, and if accompanied with violence is a breach of the peace of the United States. Most of the other great powers of Congress have been alluded to in a preceding chapter. After their enumeration this fm-ther comprehensive grant is made : "To make all laws which shall be neces- sary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." Some limitations are then imposed, but it is not necessary to enumerate them here. CHAPTEE IV THE PEESIDENT A Single Execdtive — Cabinet Ofeiceks — Term of the Presi- dent — Manner of Choosing — Bl.ectoral College — Elec- tions BY House and Senate. The Second Article of the Constitution deals witli the Executive Department of the Govern- ment. It declares that " the Executive power shall be vested in a President of the United States of America," and that "he shall hold his oiEce dur- ing the term of four years." These conclusions were not arrived at in the convention without diffi- culty. Should the Executive be single or plural — A single or °^® President or several ? Some of piarai executive, ^j^^ ^^j^^^ ^^^ ^^ ^^^ Convention wanted a plural Executive. One President too strongly reminded them of the King from whose tyrannical and cruel grasp the Colonies had just escaped. Roger Sherman, of Connecticut, wished that the number should be left to the determina- tion of Congress. Edmund Eandolph, of Virginia, "strenuously opposed a unity in the Executive magistracy." He regarded it as " the foetus of monarchy." And on the final vote three States — 68 THE PRESIDENT 69 New York, Delaware and Maryland — voted against the proposition that the Executive consist of a sin- gle person. Experience has so fully justified the conclusion reached by the convention in this mat- ter, that no change has ever been suggested. The incumbent has never satisfied every one, but the discontented have never sought relief by giving him a double. Executive direction should always be single. When anything is wrongly done, we must be able to put a hand on the man who did it. The sense of responsibility begets carefulness, and that sense is never so perfect as when, after full consultation, the officer must go alone into the chamber of decision. In all of the recent reform city charters this principle is made prominent — by giving the Mayor the power to appoint the city boards and officers, and so making him responsible for the efficiency of the city government. Two presidents or three, with equal powers, would as surely bring disaster as three generals of equal rank and command in a single army. I do not doubt that this sense of single and personal re- sponsibility to the people has strongly held our Presidents to a good conscience, and to a high dis- charge of their great duties. It was proposed in the convention to provide an Executive Council that should exercise a meas- ure of restraint upon the acts of the President; 70 THIS COUNTRY OF DUES but the suggestion was wisely rejected. A many- headed Executive must necessarily lack that vigor An Executive and promptness of action which is Conncil — Cabinet . ,.-,■,• Officers. often a condition oi public safety. A distinguished public man is reported, perhaps er- roneously, to have very recently expressed the opin- ion that each Cabinet officer should be independent in the administration of his department, and not subject to control by the President. The adoption of this view would give us eight Chief Executives, exercising, not a joint, but a separate control of specified subdivisions of the Executive power, and would leave the President, in whom the Constitu- tion says " the Executive power shall be vested," no function save that of appointing these eight Presidents. It would be a farming-out of his Con- stitutional powers. It is not intended to discuss here the true relation between the President and his Cabinet — that subject will be considered in its order — but only to point out that the responsibility under the Constitution for the Executive admin- istration of the Government in all its branches is devolved upon the President. A Cabinet inde- pendent, after appointment, of the Executive, and not subject, as in England, to be voted out by the Legislature, would be an anomaly. Mr. Stevens, in his " Sources of the Constitution of the United States " (p. 168), gives an interesting account of an THE PRESIDENT 71 interview with President Hayes from notes made at the time, in the course of which President Hayes said that In matters of a department, he gave greater weight to the opinion of the Secretary of that department, if the Secretary opposed his own views; president Hayes's but on two occasions, at least, he liad ^'^"'■ decided and carried out matters against the wishes of the Secretary of the department affected. He had done so in the case of his Secretary of the Treasury (Sherman), whose opinion he usually valued. In each case, know- ing the certainty of diverse views from the Secretary, he had not asked those views, but had announced to the Secretary his own policy and decision. As to the term of the Presidential office, the conclusion of the Constitutional convention has been less fully acquiesced in. In the PresidentiaUerm . . 1 Ti 1 r — DiscnssionB in convention, opinions shitted from a convention, long term with a provision making the person chosen ineligible to a re-election, to a short term without any such restriction. On June 1st the convention, in committee of the whole, voted for a term of seven years, and on June -2d a provision was added making the incumbent ineligible to a second term. The vote on the question of a seven-year term stood in the affirmative. New York, New Jersey, Pennsylvania, Delaware and Virginia ; in the negative, North Carolina, South 72 THIS COUNTRY OF OXJBS Carolina, Georgia and Connecticut ; Massachusetts was divided. On the question of making the Exec- utive ineligible after seven years, Massachusetts, New York, Delaware, Maryland, Virginia, North Carolina and South Carolina voted in the affirma- tive; Connecticut and Georgia in the negative, and Pennsylvania was divided. On July 19th, the subject being again before the convention, it was voted, nine States in the affirmative to one (Delaware) in the negative, to make the term six years. On July 26th the original proposition of the committee of the whole " that the Executive be appointed for seven years, and be ineligible a second time," was reinstated and passed. On September 6th, by a final vote, the term was fixed at four years, and no restraint was put upon the eligibility of the President for as many terms as he might be chosen. The fears of those who said that the power of the office was such as to enable an ambitious incumbent to secure an indefinite succession of terms have not been realized. In practice the popular opinion has limited the eligi- bility of the President to one Te-election. But some of our leading and most thoughtful public Six years ana no ^^^ ^^^^ challenged the wisdom of re-election. ^-j^e fouT-year term, and have advo- cated six years, usually accompanied with a prohi- bition of a second term. And unless some method THE PRESIDENT 73 can be devised by which a less considerable part of the four-year term must be given to hearing applicants for office and to making appointments, it would be wise to give the President, by extend- ing the term, a better chance to show what he can do for the country. It must be admitted, also, that ineligibility to a second term will give to the Exec- utive action greater independence. It seems un- likely, however, that any change in the Presi- dential term will be made unless some unexpected event should stir into action a thought that is now of a theoretical rather than a practical cast. Our people are wisely conservative in the matter of amending the Constitution. The provisions of the Constitution relating to the manner of choosing the President are of pe- culiar interest, for the reason that, Manner of chooB- while we still follow the letter of the posed. Constitution, we have practically adopted a new, and to the framers of the Constitution, an un- thought-of method. Various methods of choosing the President were proposed in the convention. Mr. "Wilson, of Pennsylvania, one of the most learned and useful members of the convention, proposed that the States be divided into a certain number of election districts, and that in each the people choose " electors of the Executive magis- tracy." Mr. Eoger Sherman was for an election by 74 THIS COUNTRY OF OURS Congress. Mr. Eutledge suggested an election by the Senate. Mr. Gerry proposed that the Presi- dent should be chosen by the Governors of the States or by electors chosen by them. Mr. Wilson proposed an election by electors to be chosen by lot from the National Legislature. He did not move this as the best mode, but stiU thought the people should elect. As a member of the Penn- sylvania convention, he said, "The convention were perplexed with no part of this so much as with the mode of choosing the President of the United States." It was determined that electors should be chosen in each State, and that they should meet and elect the President and Vice-President. How the electors should be chosen, and how many each State should have, was next a subject of de- bate and division. It was finally determined that " each State shall appoint in such manner as the One elector for Legislature thereof may direct, a Representative. number of electors equal to the whole number of Senators and Bepresentatives to which the State may be entitled in the Congress." In- diana has thirteen Representatives in Congress and two Senators, and chooses, therefore, fifteen electors of President and Vice-President. Rhode Island has two Representatives in Congress and two Senators, and chooses four electors of Presi- dent and Vice-President, and so of the other THE PRESIDENT 75 States. The number of Kepresentatives tliat a State has in Congress is determined, as we have seen, by its population, and the population is as- certained by a census taken every ten years. The unit of representation — that is, the number of people that shall be entitled to a Eep- unit of repre- ... . .^ • /. T 1 Bentation— num- resentative m Congress — is fixed by ber of electors, law every tenth year, after the census returns of population are in. The Constitution provides that the number of Eepresentatives shall not be greater than one for every thirty thousand. Upon the ba- sis of one for every thirty thousand the House of Kepresentatives would now consist of 2,333 mem- bers, estimating our total population at 70,000,000. The Electoral Colleges would, of course, have the same number of electors, plus ninety — the whole number of the Senators. But under the law of February 7, 1891, the whole number of Eepresenta- tives is fixed at three hundred and fifty-six — one for each 175,905 of population — to which is to be added the Eepresentative from Utah, since ad- mitted to the Union. The whole number of the electors of President and Vice-President is now (1897) four hundred and forty- seven— three hun- dred and fifty-seven plus ninety. The assembled electors of a State are not called a " college " in the Constitution, but they have been so designated in the statutes. 76 THIS COUNTKT OF OURS The manner of clioosing the electors is left by the Constitution to the Legislatures of the respec- Manner of ^^^^ States. The method most used choosing electors. ^^ ^^^^ ^^ choose the electors by a popular Tote in the whole State — each voter voting for the whole number of electors to which the State is entitled. The general practice of the political parties is to allow each Congressional district to nominate an elector, who is designated a district elector, and in a State convention to nominate the two electors given for the Sena- tors, usually called electors-at-large or Senatorial electors. In a few of the States the laws require the dis- trict electors to be residents of their respective districts, and in the other States the practice is so. But all of these are put on the State ticket and are voted for throughout the whole State, and usually are all elected, or none ; though, in a few instances, some one elector on a party ticket has been chosen and the others defeated. But this method of choos- ing electors has not been universal. In some States the electors have been chosen by a vote of the Leg- islature, and in Michigan in 1891, the Democratic party being in the ascendency in the Legislature, and the Kepublicans probably having a majority on the popular vote in the whole State, a law was passed giving to each Congressional district the THE PRESIDENT 77 right to choose an elector, and to the whole State the right to choose only the two Senatorial electors. By this method those Congressional districts that had a Democratic majority could choose electors of that party and thus divide the electoral vote of the State. It is greatly to be desired that a uniform method of choosing Presidential a uniform electors should be adopted, so as to ""^tboa leBiraWe. free the selection as much as possible from par- tisan juggling. The purpose of the convention was to provide for the selection of a body of well-in- formed, patriotic men, who should elect as President the man whom they should think best fitted for the high oiSce. Their choice was not to be con- strained by pledges, nor limited by nominating conventions. But while we still use the letter, the spirit of the Constitution was speedily subverted. Presidential candidates are nominated in national party conventions, and the electors of spmt of the , Constitution sub- the party are regarded as honorably verted. bound to vote for the nominee, whatever may be their individual opinion as to his fitness for the office. An elector who failed to vote for the nom- inee of his party would be the object of execration, and in times of very high excitement might be the subject of a lynching. The origin of the Electoral College has been the subject of much speculation. The only American 78 THIS COUNTRY OF OURS precedent is found in the first Constitution of Maryland, where provision was made for the choice of State Senators by electors chosen by popular Origin of Eiecto- ^°*® ^^ Specified districts. In the Mas- rai College. gachusetts convention Mr. Bowdoin said : " This method of choosing the President was probably taken from the manner of choosing Sen- ators under the Constitution of Maryland." An attempt has been made by some to find the sug- gestion of the Electoral College, as we have come to call it, in the method formerly in use of choosing the German Emperor, and by others in the method of choosing a Pope by the College of Cardinals. Sir Henry Maine says : " The American Republican electors are the German Imperial electors, except that they are chosen by the several States." As Maryland, where the electoral system was first used, was a Catholic colony, the suggestion that the idea was derived from the CoUege of Cardinals seems plausible. There is this difference: our electors are not a permanent body, but men chosen every four years. We are in the habit of speaking President chosen °* *^® Presidential election as taking in January. ^i^^^ ^^ ^^^ g^^^ Tuesday after the first Monday of November, in every fourth year, but in fact no vote is given for President and Vice- President at that time at all. The names of the party nominees for President and Vice-President THE PRESIDENT 79 are sometimes printed on the ballots, but no voter votes, or can vote, for them and no account is taken of them on the tally sheets. He votes for certain men whose names are on the ticket as electors ; and, by the Act of Febmary 3, 1887, the electors chosen assemble in each State at the Capital on the second Monday of January following and vote for a President and Vice-President. These votes from each State are sealed and sent in duplicate to the President of the United States Senate, one copy by mail and the other by a special messenger. So that, in fact, our President is elected on the second Mon- day in January in every fourth year, though we are not in doubt, after the November election, as to who will be chosen, because the electors are morally bound by the nomination of their party in convention. The original provision of the Constitution did not allow the electors to vote separately for a President and Vice-President. They p,,,iaent and were required to vote for two per- JS ^lepamte- sons, at least one of whom should ^* be a resident of another State than their own. Either of these persons might become President, for the person having the highest number of votes, when the votes of the States were opened by the President of the Senate and counted, if that num- ber were a majority of all the votes, became Presi- 80 THIS COUNTRY OF OURS dent, and if it happened tliat two persons had a majority and an equal number of votes, as it might, then the House of Bepresentatives was required to choose one of these persons to be President — the Yote being by States — each State, by a majority of its members, casting one vote, and a majority of all the States being necessary to a choice. If no EiectioDsbyHonse person had a majority of the votes of ana Senate, ^j^^ electors, the House was then to choose a President from the five highest on the list. After the choice of the President, the person having the highest number of votes in the Elec- toral College was to be Vice-President ; and if two had an equal number, the Senate was to choose one of them to be Vice-President. It was by this crude and awkward method that Washington, John Adams, and Jefferson (for his first term) were chosen. In 1800 the candidates for President and Vice-President of the Federal Party were Adams and Pinckney ; of the Republican Party, Jefferson and Burr. Jefferson and Burr each received sev- Eiection of Jef- enty-three votes ; Adams received ferson by the - • , , House. sixty-nve, and Pinckney sixty-four. This result necessitated the election of a President by the House of Representatives. The Senate and House met in joint session, and the count having disclosed that there was no elec- tion by reason of the tie between Jefferson and THE PRESIDENT 81 Burr, the House returned to its chamber and, under rules previously adopted, proceeded to vote for a President. Sixteen ballot boxes — one for each State — were provided, and the members from each State, seated together, deposited their ballots in the box assigned to them, and then by tellers of their own counted the ballots. Two other boxes were then carried around to the delegations by the Sergeant-at-Arms, and in each of these a duplicate ballot, showing the choice of the State, was de- posited. If a majority of the members from a State voted for the same person, the vote of the State was cast for him — but, if no person had a majority, duplicate ballots with the word " divided " upon them were deposited. The two boxes were then carried to separate tables and counted by tellers. If the vote in the two boxes agreed, the result was accepted ; otherwise, a new ballot was to be taken. The rules provided that the balloting should proceed without adjournment and without interruption by other business until a President was chosen. It was provided that all questions " incidental to the power of choosing the Presi- dent " should be decided by a vote of the States, but the decision as to whether a particular ques- tion was of that sort was to be by a per capita vote of the whole House. The balloting began February 11 (1801) and continued until February 82 THIS COUNTRY OF OURS 17th, when on the thirty-sixth ballot Jefferson was chosen by the votes of ten States — of which fact the President and the Senate were at once notified. Aaron Burr became Vice-President by the vote of the electors — after Jefferson had been chosen President— and not by a vote of the Senate. The certificate which the Senate directed its President to sign, after reciting that Jefferson and Burr had each received the same number of votes, and a majority of the electors, and that Jefferson had been elected President by the House of Repre- sentatives, concluded thus: "By all of which it appears that Aaron Burr, Esq., of New York, is duly elected Vice-President of the United States of America." In 1803 Congress proposedan amendment to the Constitution, the twelfth, which was adopted in 1804, and has ever since been in force. The votes are now given in the Electoral College for a Presi- Now voted for *^®^* ^^^ Vice-President separately. separately. rjij^g person having the highest num- ber of votes for President, and a majority of all the votes, is elected ; and so of the Vice-President. If no person has a majority of the votes for President then the House of Representatives is required from the three having the largest num- ber of votes to choose a President, the vote being taken by States as before. If a Vice-Presi- THE PRESIDENT 83 dent is not chosen by the electors the Senate elects him "from the two highest numbers on the list." If the House of Eepresentatives, when the choice devolves upon it, does not choose a President before the 4th of March, then the Vice-President acts as President, as in the case of the death, or other constitutional disability, of the President. Since the adoption of 'the Twelfth Amendment there has been one case of the fail- ure of a choice by the electors for President (1825), and one of a failure to elect a Vice-Presi- dent (1837). In 1825, Andrew Jackson, John Quincy Adams, William H. Crawford, and Henry Clay were voted for by the electors for President, and Election of j. Q. Adams by the none of them had a majority. The House count of the votes having been made, the House, under rules almost identical with those used in 1800, proceeded to choose a President. Jackson, Adams, and Crawford, the three persons having the " highest numbers " of the electoral votes, were eligible to be chosen by the House. On the first ballot John Quincy Adams received the votes of thirteen States out of twenty-four, and was elected President. John C. Calhoun had received a ma- jority of the votes of the electors for the office of Vice-President, and had been declared elected on the count. 84 THIS COUNTRY OF OURS In 1837, no one having a majority of the votes for Vice-President, the Senate elected Eich- of K. M. Johnson ^^^ ^'^- Jolmson, the Democratic can- byihesenate. (ji(jate, who had received the high- est electoral vote. CHAPTEB V THE PKESIDENT (Cootintjed) Qualifications — Succession — Notification — Inauguration— Messages. The Constitution requires that the President shall be a natural-born citizen of the United States, or shaU have been a citizen at the time Q^uaeations of of the adoption of the Constitution. r^^^id™'- If there is in the country a foreign-born citizen who was a citizen of the United States in 1789 (and possibly there is such a person), he is eligible to the Presidency ; but, as he must now be at least one hundred and eight years of age, we may read the exception in behalf of that class out of the Constitution. At the time of the adoption of the Constitution there were conspicuous statesmen and patriots, such as Hamilton, who were foreign bom, and whose services in securing oui- freedom and in organizing the Government were such that it would have been ungracious to have made them ineligible to the Presidency. The President must be thirty-five years of age, and have been fourteen years a resident of the United States. In case of 85 86 THIS COUNTRY OF OUES the death, resignation, or inability of the President, or his removal from office, the powers and duties of preeidentiai Sac ^'^^ o^^e devolve upon the Vice-Pres- ceBsion. ident, and in the case of the removal, death, resignation, or inability of both the Presi- dent and Vice-President, Congress is empowered to declare what officer shall act as President — and that officer acts until the disability is removed or a President is elected. The first law passed by Congress fixing the suc- cession was in 1791, and its provisions were that in case of the death, resignation, or disability of both the President and Vice-President, the President pro tempore of the Senate should succeed to the office of President, and, if there was no President of the Senate, then the Speaker of the House of Eepresentatives should take the office. The Presidential and Vice-Presidential offices have never in our history both become vacant dur- ing a Presidential term. Four Presidents have died in office — Harrison, Taylor, Lincoln, and Gar- field, but the Vice-President took up the office and survived the term. Vice-Presidents Clinton, Gerry, King, Wilson, and Hendricks died in office. John C. Calhoun resigned to become Senator from South Carolina. In 1886 a new statute was passed by Congress changing the succession, and now in the event of the death, removal, or disability of both THE PRESIDENT 87 the President and Vice-President, the succession devolves upon the members of the Cabinet in the following order: Secretary of State, Secretary of the Treasury, Secretary of War, Attorney-General, Postmaster-General, Secretary of the Navy, Secre- tary of the Interior. The Constitutional provision for counting the votes after they are sent in to the President of the Senate, and by him opened in the counting electoral presence of the Senate and House ™'*' assembled in joint session, is a little indefinite: "And the votes shall then be counted," says the Constitution. There was no question raised so long as it was only a matter of addition. But there came a time, in 1876, when two returns of electoral votes appeared from the same State and for different persons, and the question then be- came acute and very threatening. Who was to decide which of them was the rightful vote of the State — the President of the Senate, the joint body voting as one body, or the Senate and House vot- ing separately in their own chambers ? And if, so votiag, they differed, what was to be done ? There was then no method of settling in the courts beforehand the question which of the rival bodies of electors was the true one, and as the question whether Mr. Hayes or Mr. Tilden had been elected turned on the question which of certain 88 THIS COUNTRY OF OURS returns were the true ones, a dangerous crisis was precipitated. This was settled by an expedient, Electoral com- VIZ. : an Electoral Commission, or misBion of 1876 — . . r n c< i. Law of 1887. Court, consistmg of five benators, five Eepresentatives, and five Judges of the Su- preme Court, to try the disputed questions, and- this Commission decided in favor of Mr. Hayes. As an outcome of this, February 3, 1887, Congress passed an act containing the following provisions : Section 2 provides that any contest regarding the choice of electors must be decided, as provided by the laws of the State, at least six days before the meeting of the electors on the second Monday in January. Section 3 provides that a certificate of election must be issued by the State Executive in triplicate to the electors and transmitted by them to the President of the Senate vdth their votes for President and Vice-President. Section 4 provides that objection to the reception of any return must be in writing, and signed by one member of each House. "No electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully cer- tified to, according to Section 3 of this Act, from which but one return has been received, shall be rejected, but the two Houses concurrently may re- ject the vote or votes when they agree that such vote or votes have not been so regularly given by THE PRESIDENT 89 electors whose appointment has been so certified. If more than one return, or paper purporting to be a return, from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regu- larly given by the electors who are shown by the determination mentioned in Section 2 of this Act to have been appointed, if the determination in said section provided for shall have been made. . . . But in case there shall arise the question which of two or more of such State authorities de- termining what electors have been appointed, as mentioned in Section 2 of this Act, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is sup- ported by the decision of such State so authorized by its laws. And in such case of more than one return, or paper purporting to be a return, from a State, if there shall have been no such determina- tion of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws 6f the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally ap- 90 THIS COITNTKY OF OURS pointed electors of such State." If tlie two Houses disagree, tlie votes of those electors holding the certificate of the State Executive shall be counted. Washington vf&s orally notified of his first elec- tion to the Presidency by Charles Thomson, who Notification of ^^^d been secretary of the old Con- eieciion. gress. In his address, Mr. Thomson said he had been " honored with the commands of the Senate to wait upon Your Excellency with the information of your being elected to the office of President of the United States of America." He also presented a certificate signed by John Lang- don, who had been " appointed President of the Senate for the sole purpose of receiving, opening, and counting the votes of the electors, " that " His Excellency George Washington, Esq., was unani- mously elected, agreeably to the Constitution, to the office of President of the said United States of America." A practice grew up to notify the President-elect of his election through a com- mittee of Congress, appointed for that purpose ; but the practice has not been uniform and has now fallen into disuse. There hangs in my library a parchment which reads as follows : Be it known, that the Senate and House of Represent- atives of the United States of America, being convened at the city of Washington, on the second Wednesday of THE PRESIDENT 91 February, in the year of our Lord one thousand eight hundred and forty-one, the under-written Vice-Presi- dent of the United States and President of the Senate, did, in the presence of the said Senate and House of Representatives, open all the certificates and count all the votes of the electors for a President and Vice-Presi- dent of the United States : whereupon, it appeared that William Henry Harrison of Ohio, had a majority of the votes of the electors as President ; by which it appears that William Henry Harrison of Ohio, has been duly elected President of the United States, agreeably to the Constitution, for lour years commencing with the fourth day of March, in the year of our Lord one thousand eight hundred and forty-one. In witness whereof, I have hereunto subscribed my name and caused the seal of the Senate to be affixed, this tenth day of February, eighteen hundred and forty- one. Rh. M. Johnson, Vice-President of the United States and President of the Senate. By the Vice-President. AsBURT Dickens, Secretary of the Senate. The President-elect now receives no official no- tice of his election, nor any commission or certifi- cate of the result of the count. He None given now. takes notice himself and presents himself on the 4:th of March to take the oath of office. He usually goes to Washington a few days, 92 THIS COUNTRY OF OURS often as much as a week, before the 4th of March. He may not have conclusively selected all of the members of his Cabinet, and at the The inauguration. ^ ., , , i j' i • Capital he can pursue such nnal in- quiries as he desires to make with more freedom and despatch than at home. He calls upon the President at once, and the latter returns the call within the hour. General Jackson imputed to his predecessor, Mr. Adams, some connection with the circulation of certain offensive campaign stories, and declined to caU. upon him. Mr. Adams re- sented this discourtesy, and declined to attend the inaugural ceremonies. It is said that he was tak- ing a horseback ride in the suburbs when the guns saluted his successor. On the 4th of March, when the time for starting the inaugural escort is near, the President-elect is taken by the committee in charge to the Executive Mansion, where he joins the President, and, enter- ing his carriage, is driven with him to the Capitol. The Constitution requires that before assuming his office the President shall take the following oath or affirmation : I do solemnly swear (or affirm) that I will faithfully execute the office of President of the Oath of office. United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States. THE PEESIDENT 93 The oath is usually administered by the Chief Justice of the United States, in the presence of the people, upon a platform erected on the east front of the Capitol. When Washington was first inaugurated the Supreme Court of the United States had not been organized, and the Chancellor of the State of New York was selected to adminis- ter the oath. When the oath had been taken the Chancellor proclaimed "Long live ,.i^„g,i^e6e„ge George Washington, President of the Washington.- United States." A Bible is used in the adminis- tration of the oath, and the President kisses the open page of the Book. After the administration of the oath the President delivers an address. This address is of a popular character, and in or- dinary times is not a very important state paper. Now and then, however, as on the Inaugural addreBB. first inauguration of Mr. Lincoln, the address is of the highest significance and value, as a forecast of administrative policies. To Wash- ington's first inaugural address each House made a return address, and Washington a reply. The Senate returned " sincere thanks for your excellent speech." Since then there has been no response from either House to the inaugural address of the President. Congress, in the usual course of things, is not in session when the President takes the oath of office, as it was when Washington was 94 THIS COUNTRY OF OURS first inaugurated, and so the form of inaugural ad- dress is " My Fellow-Citizens." When the inaugural ceremonies are completed, the President and the ex-President again take their Eetnm to White P^^ces in the Carriage— the ex-Presi- House-Eeview. ^^^^^ ^^^ ^^ ^-^^ left— and are rapidly driven to the Executive Mansion, where the wife of the President joins him. They are usually re- ceived by the wife of the ex-President, or by the lady who may stand in her place. The ex-President then withdraws, and the President goes to the re- viewing stand which is placed on the avenue in front of the Executive Mansion. The procession is usually several hours in passing, and the expos- ure, especially if the day is raw and wet, as it often is, is not only very uncomfortable, but really perilous to life. The close of the Congress and the be- ginning of the President's term should be changed to May 4th. This would make the " short ses- sion " available for something besides the appro- priation bills, would diminish the chances of a Vice-Presidential succession, and save many use- ful lives — for I do not doubt that the exposure and suffering endured by the parading organizations and by the spectators in 1881, 1889, and 1893, carried many people to premature graves. The Constitution provides that the President " shall from time to time give to the Congress in- THE PRESIDEKT 95 formation of the state of the Union, and recom- mend to their consideration such measures as he shaU judge necessary and expedient." ^^^^^ ^^ Out of this provision, as well as the "^'^'' °'^- obvious necessity of the case, the annual message of the President has come. In the beginning it took the form of an address, delivered by the President orally to the two Houses assembled in joint convention, and during the administrations of Washington and John Adams the Senate and House each made a responsive address to the President, to which he made a reply. Mr. Jefferson sent his first annual message to Congress in writing — a copy to each House — and accompanied it by a letter in dupli- m r . Jefferson scuds ft written cate to the President of the Senate message. and to the Speaker of the House, in which he said that he adopted this course because the circum- stances rendered "inconvenient the mode hereto- fore practised of making by personal address the first communications between the Legislative and Executive branches," and mentioned the fact that communications by written messages had been the practice " on all subsequent occasions through the session." He thought the course he adopted would be more convenient and would relieve the Houses " from the embarrassment of immediate answers on subjects not yet fully before them." The usage 96 THIS COFNTEY OF 0X7ES thus inaugurated by Jefferson of sending the an- nual messages to Congress in writing by a secre- tary — a copy to each House — has become the settled practice, and the practice of making re- sponsive addresses has been abandoned. In the Senate there is now an order to print, and in the House a like order and a reference of Reference of *^® message to the Committee of the MeBsage. -^-jiole on the State of the Union. If any of the recommendations of the message are approved by Congress that approval is expressed by the passage of laws to carry them into effect. Once, when the message was very long, a jocular member of the House suggested a reference to the " Committee on Mileage," When Yice-Presidents Tyler, Johnson, and Ar- thur succeeded to the Presidency, Congress was inaugaration of J^o* ^ sessiou, and the oath of office Yice-PreBidents ^^^ administered without the usual formalities. When President Taylor died Congress was in session, and the following proceedings were taken : Vice-President Fillmore, in a communica- tion addressed to the Senate, announced the death of the President, and that the Vice-President would no longer act as President of the Senate. In another communication, addressed to both Houses, he made the same announcement and added : " I propose, this day, at twelve o'clock, in the Hall of THE PRESIDENT 97 the House of Eepresentatives, in the presence of both Houses of Congress, to take the oath of office prescribed by the Constitution, to enable me to enter on the execution of the office which this event has deyolved on me." The two Houses assembled in joint session at the hour named, and the oath of office was admin- istered. There was no address by Mr. FiUmore. CHAPTER VI THE PRESIDENT (Continued) Enforcement of the Li^ws — The Appointing Power — Sen- ate's Request for Papers — Contbovekst with President Cleveland — Vacation Appointments — Relations op Cab- inet Officers — Usage as to Congressional Influence in Appointments— Senatorial Courtesy — Civil Service. Having considered tlie manner of electing the President, his induction into office, and the manner in which he communicates with Congress, let us now look at some of his larger powers and duties. Enforcement of ^hc most compreheusivc power is theiawB. given in these words: "He shall take care that the laws be faithfully executed." This is the central idea of the office. An executive is one who executes or carries into effect. And in a Republic — a Government by the people, through laws appropriately passed — the thing to be executed is the law, not the will of the ruler as in despotic governments. The President can- not go beyond the law, and he cannot stop short of it. His duty and his oath of office take it all in and leave him no discretion, save as to the means to be employed. Laws do not execute 98 THE PRESIDENT 99 themselves. Somebody must look after them. It is the duty of the President to see that every law- passed by Congress is executed. These relate to a multitude of things — the postal service, the in- ternal revenue and a hundred other things. To enable him to do this, provision is made for the appointment of a large number of subordinate executive officers. At the head of these are the eight Cabinet officers : the Secretary of State, the Secretary of the Treas- ury, the Secretary of War, the Attorney-General, the Postmaster-General, the Secretary of the Navy, the Secretary of the Interior, and the Secre- tary of Agriculture ; and under them an army of subordinates, the number now being about 178,000, not including those in the military and naval service. Of these about 84,000 are in the classi- fied civil service — that is, they are appointed after examination under the Civil Service Law and with- out regard to political influence. The appointing power is expressed in these words : " He shall nominate, and by and with the advice and consent of the Senate, Appointing shall appoint Ambassadors, other power. public Ministers and Consuls, Judges of the Su- preme Court, and all other officers of the United State, whose appointments are not herein other- wise provided for, and which shall be established 100 THIS COUNTRY OF OUES by law; but the Congress may by law vest tlie appointment of such inferior officers, as they think proper, in the President alone, iu the Courts of Law, or in the heads of departments." Under this provision, the appointment of a large number of subordinate officials has been vested in the heads of departments. The process in Presidential appoiatments is for him to send to the Senate the names of the per- NominatioTis— ^°^^ ^^ ^^^ Selected for particular Senate action, offices. These nominations are pub- lic. A list of them for the press usually accom- panies the official communication to the Senate. In the Senate action iipon the nominations is taken in what is called executive or secret session. The nominations are first referred to the appro- priate committees — postmasters to the Committee on Post-Offices and Post Boads, ambassadors and ministers to the Committee on Foreign Affairs, etc. Here the scrutiny generally consists in refer- ring the nominations to particular committee members, who usually inquire of the Senator or Senators from the State from which the nominee comes whether there are any objections. If any representations are received by the committee against the fitness or character of the nominee he is advised of the nature of the charges, and given an opportunity to make his defence, but the name THE PRESIDENT 101 of the person presenting the charges is usually withheld. If on a Yote in the Senate a nomina- tion is rejected the President is notified and the appointment fails. If the nomination is confirmed the President, on notice of the fact, issues to the officer a commission duly signed and sealed. In the consideration of nominations for office the committees of the Senate have been for many years in the habit of sending to the De- eibm of senate to partmentsfor the papers filed there E^^pape'^. in connection with the case, and these requests have generally been complied with. They seem to have had their origin in a suggestion from the Ex- ecutive. In August, 1789, a nomination made by President Washington having been rejected by the Senate, he said, in sending in the name of another person : " Permit me to submit to your considera- tion whether on occasions where the propriety of nominations appears questionable to you it would not be expedient to communicate that circumstance to me, and thereby avail yourselves of the infor- mation which led me to make them, and which I would with pleasure lay before you." The protracted and heated controversy between President Cleveland and the Senate during his first term, as to the right of the Sen- controversy with President Cleve- ate to call upon the Departments for 'and. the papers relating to the suspension of an officer 102 THIS COUNTKT OF OUES under the Tenure of Office Act, as well as for those relating to the appointment of the person nomi- nated to fill the place of the suspended officer, can only be briefly mentioned. On behalf of the Presi- dent it was contended that his power of removal was absolute and not in any way subject to the consent of the Senate ; that the Senate had no right to call for papers relating to a subject as to which it could take no action, and that the papers relat- ing to suspensions were not official but were pri- vate papers, which the President might destroy if he pleased. On behalf of the Senate it was con- tended that the power of removal was not involved; that the suspensions and the appointments under consideration were made under the Tenure of Office Act, and were expressly referred, by the President in the nomination messages, to that law ; that im- der that law the removal of an officer was subject to the approval of the Senate ; that such officer would resume his office, if the Senate took no ac- tion, at the end of the session ; that the removal of an officer and the appointment of a successor were connected subjects, to be considered together; that the right of the Houses of Congress to be in- formed as to the acts of the Executive Department could not be limited as claimed ; and, finally, that the particular resolution called for papers relating to the management of his office by the officer sus- THE PRESIDENT 103 pended, -wliicli was a proper subject of inquiry, even if there liad been no suspension — or if a suc- cessor had already been confirmed. The particular injustice complained of by the Kepublicans was the removal of public officers upon charges, and the denial of the requests of such officers to be advised as to the nature of the charges. The Tenure of Office law was passed in 1867, during the heated controversy between President John- Tenure of office son and the Congress ; and the con- ^^'^' stitutionality of the law was denied by many able lawyers. It prohibited the removal of any officer during his term without the advice and consent of the Senate, but gave the President power to sus- pend until the end of the next session of the Sen- ate. The law was repealed in 1887. The Constitution provides that the President may " fill up all vacancies that may happen during the recess of the Senate, by granting vacation Ap- commissions which shall expire at the po'^t^ents. end of their next session." There are a great many such appointments made, and the commissions all run, in the language of the Constitution, until the expiration of the next session of the Senate. When the Senate meets all of these vacation appoint- ments are sent in for confirmation. If they are confirmed, new commissions, for the full legal terms of the offices, are issued. If they are rejected, new 104 THIS COUNTRY OF OURS nominations should be made, and if, as sometimes happens, the Senate adjourns without taking any action, the vacation appointment expires by its own limitation and must be renewed or another made. The power of removal has been generally regarded as an incident of the power of appointment, and as necessary to enable the President to fulfil his duty to see the laws executed ; but during the sessions of the Senate he cannot put any person into an office until the nomination is confirmed. Of course, the power of removal does not extend to such offi- cers as judges, who are appointed for life and are only removable on impeachment. The sphere of the Cabinet officers is evident from the descriptive titles they bear. Their Departments The Cabinet Were Constituted under the Constitu- offlcers. ^-^^ ^ ^.j^g following Order : The De- partment of Foreign Affairs, organized July 27, 1789, was permanently established as the State De- partment by the Act of Congress passed September 15, 1789. The Treasury Department was constituted September 2, 1789 ; the War Department, August 7, 1789 ; the Post-Office Department, temporarily, September 22, 1789, permanently. May 8, 1794 ; the office of Attorney- General, September 24, 1789 (The Department of Justice, as such, was organized June 22, 1870) ; the Navy Department, April 30, 1798; the Interior Department, March 3, 1849; THE PRESIDENT 106 the Department of Agriculture, February 9, 1889. All of these officers are selected and nominated by the President and confirmed by the Senate. It is the fii'st important act of the Administration. They constitute what is called his official family, and their relations with him are very close and confi- dential. Each of them has charge of a part of the public business defined by law. In all important matters the President is con- sulted by all the Secretaries. He is responsible for all executive action, and almost jjeiation to Presi- everything that is out of the routine '^™'' receives some attention from him. Every impor- tant foreign complication is discussed with him, and the diplomatic note receives his approval. The same thing is true of each of the departments. Routine matters proceed without the knowledge or interference of the President ; but, if any matter of major importance arises the Secretary presents it for the consideration and advice of the President. Only matters of importance affecting the general policy of the administration are discussed in the Cabinet meetings — according to my experience — and votes are of rare occurrence. Any Secretary desiring to have an expression upon any question in his department presents it, and it is discussed ; but usually questions are settled in a conference between the President and the head of the particu- 106 THIS COUNTRY OF OURS lar department. If there is that respect and confi- dence that should prevail between a President and his Cabinet officers this consultation is on equal terms, and the conclusion is one that both support. There should be no question of making a " mere clerk " of the Cabinet officer ; there is a yielding of views, now on one side, now on the other; but it must, of course, follow that when the President has views that he feels he cannot yield, those views must prevail, for the responsibility is his, both in a Constitutional and popular sense. The Cabinet officer is a valued adviser, and it does not often happen that his views and those of the President cannot be reconciled. Professor Burgess says : In the exercise of his powers the President may ask the advice, if he will, of the heads of the Executive Departments, but he is not required to do Not a ministry. so by the Constitution. The words of the Constitution are that the President " may require the opinion, in writing, of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices." . . . What we call the Cabinet is, therefore, a purely voluntary, extra-legal association of the Heads of the Executive Departments with the President, which may be dispensed with at any moment by the President, and whose reso- lutions do not legally bind the President in the slightest degree. They form a privy council, but not a ministry.' ' Political Science and Constitutional Law, 262-263. THE PRESIDENT 107 The liabit is to give an afternoon to each Cabinet officer on a fixed day of the week. These meetings are mainly given up to the considera- ConsQltations. tion of appointments, but if any other matters are pending, and deemed by the Secretary of sufficient importance, they are presented and discussed. The Cabinet officer is chiefly entitled to the credit if his department is well administered, for most things he transacts on his own responsi- bility. His labors are incessant and full of care. His time is largely taken up by callers, and, like the President, he must, out of such fragments of time as he can secure, manage to study and decide the important questions that are daily presented to him. Certain appointments, chiefly of a clerical char- acter, are by law given to the heads of the depart- ments, and with these the President usually refuses to interfere, though often urged to do so ; but he spends many a weary hour explaining to friends why he cannot do so. The Presidential appointments in each depart- ment are the subjects of consultation. All papers sent to the President, relating to such Appointments- " CongreEBiODal m- appointments, are referred to the fluence. proper department, and there a brief is made up, showing the names of the different applicants and the persons by whom they are recommended. It 108 THIS COUNTRY OF OURS has come to be a custom that, in the appointment of officers whose duties relate wholly to a Con- gressional district, or some part of it, the advice of the Congressman — if he is of the President's party — is accepted. This is a mere matter of custom, but it has become so settled a custom that the President finds himself in not a little trouble if he departs from it. In the Congres- sional districts represented by Congressmen of the party opposed to the President the custom is that the Senator or Senators — if of the President's party — make the recommendations for the local appointments ; as they also do for appointments in their States not of a local character. These recom- mendations are followed as a rule, unless some- senatoriai thing against the character or fitness courtesy. ^f ^j^g applicant is alleged. In such case the President exercises his prerogative to make a selection of his own upon such other repre- sentations and recommendations as are made to him. When he does this the confirmation of the ap- pointment, however good and unexceptionable in itself, is often held up in the Senate upon the objection of the Senator whose recommendation has not been followed, and the nomination is sometimes rejected — not upon the merits, but out of "Senatorial courtesy." The power and duty THE PKESIDENT 109 of selection are vested by the Constitution in the President, but appointments are made "by and with the advice and consent of the Senate." It vrould seem that the power vested in the Senate relates only to the competency, fitness, and char- acter of the person appointed, but this view is much varied in practice. Some Senators practi- cally assert the right to select as well as to con- sent. There can be no doubt that the participation of the Senate in the matter of appointments is larger than the Constitution contemplates. But as the President can, in the nature of things, know but little about the applicants for local offices, and must depend upon some one better informed than he to give him the necessary information, it is quite nat- ural that he should give great weight to the advice of the Senator or Representative. It ought, however, to be admitted that as the responsibility rests upon the President he must be satisfied as to the fitness of the appointment. That being satisfactorily es- tablished, the public interests are saved, for the choice between fit men is not very important. If there is any objection to the appointment, growing out of the character or habits of the applicant, it is pretty sure to be brought out ; and on the whole, considering the number of appointments the Presi- dent is required to make without any personal 110 THIS COUNTRY OF OTJES knowledge of the appointees, the public service is well and honestly conducted. At the beginning of every administration Wash- ington fills up with persons who desire some office The office-seek- «i*^e^ "^ *^« ^^^^' ^^ *^« ^^P^'^*" ®"- ments, or in the foreign service. Many of these persons have a very limited purse, and as the days pass on this is exhausted, and im- patience and ill-temper come in. Many of them are deserving and well-fitted to fiU the offices they seek. But it is impossible to find places for all the deserving, and the position of the President is full of trial. The suspense that the office-seek- er suffers is illustrated by the case of a man who thought he had good reason to expect an appoint- ment from President Garfield. After he had been weeks at Washington, and had brought to bear all the influence he could command, a friend met him one day on the street and asked him how he was getting along. His answer was, " Yery well, very well, but there is nothing focal yet." The answer was wonderfiiUy expressive, and a good illustration of the state of uncertainty which accompanies office- seeking. " Nothing focal yet," but a hope that is hard to kill. There are few, if any, offices at Washington the salaries of which enable the incumbent to save any money, and the average experience of those holding THE PEESIDENT 111 places in the departments is, if they would express it, that private business offers better returns and gives a better chance for advancement. The civil service law has given a measure of security to the depart- ment clerk, but even with this protection there is a sense of insecurity and dependence which is not found in private pxxrsuits. But for many persons there is a fascination about the National Capital, and a zest and excitement in life there that will continue to attract many a young man "who could make a much greater career at home. The Civil Service Law has removed a large num- ber of minor offices in the departments at Washing- ton, and in the postal and other ser- '■ _ Civil Service. vices, from the scramble of politics, and has given the President, the Cabinet officers and the Members of Congress great relief ; but it still remains true that in the power of appointment to office the President finds the most exacting, unre- lenting, and distracting of his duties. In the nat- ure of things he begins to make enemies from the start, and has no way of escape — it is fate ; and to a sensitive man involves much distress of mind. His only support is in the good opinion of those who chiefly care that the public business shall be well done, and are not disturbed by the consider- ation whether this man or that man is doing it ; but he hears very little directly from this class. 112 THIS COUNTRY OF OUKS No President can conduct a successful adminis- tration without the support of Congress, and this matter of appointments, do what he will, often weakens that support. It is for him always a sort of compromise between his ideal and the best at- tainable thing. CHAPTEE VII THE PEESIDENT (Contdtoed) Enforcement op Laws — Peace of the United States — As- sault ON Justice Field — Railroad Strikes — Aliens — Use OF Army. A FEW words more about the laws and the en- forcement of them. The execution of the laws usually proceeds along moral and Enforcement of -IT ,, , ,, the laws — United peaceiul lines, tor people generally states marshals, neither -violate the laws nor resist public officers. But provision must be made for the arrest and punishment of those who do, and for the prompt suppression of any organized resistance, in the form of insurrections, mobs or otherwise. All pun- ishment must be by the judgment of a Court. The Executive Department can only suppress violence, and arrest the law-breakers — the trial of the ques- tion of guilt and the fixing of the penalty within the statutory limits, is for the Courts. The United States Marshals and their deputies are the peace officers of the United States. They usually act upon warrants or other orders from the United States Courts ; but they may act in some cases without a writ from the Court. The attempt 8 113 114 THIS COUNTKY OF OURS upon the life of tlie honored and Tenerable Justice Field, of the Supreme Court, by David S. Teny, ABsanitonJns- ^^ an example. Justice Field had tice Field. tried a case in which Terry was inter- ested, and for his judicial action ia that case Terry had made threats against the life of the Justice. The Attorney-General (Mr. Miller) directed the United States Marshal for the Northern District of California to afford the Justice protection, and Deputy Marshal Neagle was detailed to that duty. While the Justice was on his way from Los An- geles, where he had held Court, to San Francisco, where he was again to sit in the Circuit Court, Terry made an assault upon him at a railroad eat- ing-house, and was killed by Deputy Marshal Nea- gle. Some interesting questions arose : If the peace had been broken, was it the peace of the United States or the peace of the State of Cahfor- nia? Could the police of the State arrest and hold the Deputy Marshal, and the courts of the State try and punish him, or was the question whether the officer had committed a crime one to be determined by the laws and the courts of the United States ? The State officers arrested Nea- gle, and a State court indicted him. He was taken on a writ of habeas corpus, issued by the United States Circuit Court, from the State offi- cers, and brought before that Court and dis- THE PRESIDENT 115 charged. Some important and instructive things were said in the decision given in the case by the Supreme Court.* The Attorney- General (Mr. Miller), in his brief, said : Argument certainly cannot be necessary to show the duty of the Executive Department of the Government of the United States to protect the Courts and Judges in the discharge of their duties. Indeed, it is hardly sup- posed that this will be questioned. The President, as the head of that Executive Department, is under the Constitutional obligation to take care that the laws be faithfully executed. To the end that he President may may, in every contingency, discharge this use Army ana duty he is made Commander-in-Chief of the Army and Navy, and of the militia of the several States when called into active service. Justice Miller, in the opinion of the Court, quotes from the opinion of Justice Bradley in Ex parte Siebold, 100 U. S., as follows : "We hold it to be an incontrovertible principle that the Grovernment of the United States may, by means of physical force, exercised through its official agents, exe- cute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent. This power to enforce its laws and to execute its functions in all > 136 U. S., p. 1. 116 THIS COUNTRY OF OURS places does not derogate from the power of the State to execute its laws at the same time and in the same places. The one does not exclude the other, except where both cannot be executed at the same time. In that case the words of the Constitution itself show which is to yield. " This Constitution, and all laws which shall be made in pursuance thereof, . . . shall be the supreme law of the land." . . . Without the concurrent sover- eignty referred to, the National Govern- not an advisory ment would be nothing but an advisory Government. Its executive power would be absolutely nullified. Why do we have marshals at all, if they cannot physically lay their hands on persons and things in the performance of their proper duties? What functions can they perform if they cannot use force? In executing the processes of the Courts, must they call on the nearest constable for protection ? Must they rely on him to use the requisite compulsion, and to keep the peace, whilst they are soliciting and entreating the par- ties and bystandere to allow the law to take its course ? This is the necessary consequence of the positions that are assumed. If we indulge in such impracticable views as these, and keep on refining and re-reflning, we shall drive the National Government out of the United States, and relegate it to the District of Columbia, or perhaps to some foreign soil. We shall bring it back to a condition of greater helplessness than that of the old confederation. . . It must execute its powers, or it is no Govern- ment. It must execute them on the land as well as on the sea, on things as well as on persons. And, to do this, it must necessarily have power to command obedience, preserve order, and keep the peace ; and no person nor THE PRESIDENT 117 power in this land has the right to resist or question its authority so long as it keeps within the bounds of its jurisdiction. Justice Miller then says : Is this duty limited to the enforcement of acts of Con- gress or of treaties of the United States according to their express terms, or does it include the rights, duties, and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the Government under the Constitu- tion f So if the President or the Postmaster-General is advised that the mails of the United States, possibly carrying treasure, are liable to be robbed and the mail- carriers assaulted and murdered in any particular region of country, who can doubt the authority of the Presi- dent or of one of the Executive Departments under him to make an order for the protection of the mail and of the persons and lives of its carriers, by doing exactly what was done in the case of Mr. Justice Field, namely, pro- viding a sufllcient guard, whether it be by soldiers of the army or by Marshals of the United States, with a posse comitatus properly armed and equipped, to secure the safe performance of the duty of carrying the mail wherever it may be intended to go ? And again : That there is a peace of the United States ; that a man assaulting a Judge of the United States while in the 118 THIS COUNTRY OF OURS discharge of his duties violates that peace ; that in such case the Marshal of the United States stands in the same relation to the peace of the United States of the United which the sheriff of the county does to States. ^j^g pg^^g ^j ^j^g g^^^g qj California, are questions too clear to need argument to prove them. The Court held that Justice Field, while travel- ling to the places where he was to discharge judi- cial duties, was as fully entitled to the protection of the United States as while actually sitting upon the bench. The laws that the President must enforce are, of course, only the laws of the United States. With the matter of resistance to the laws of a State he has nothing to do, save as wiU be pres- ently explained. But the power and duty of the President to suppress mob violence happening in the States is broader than the old thought and practice in such matters. During the great rail- „ ., , ^, road strike of 1877 the United States Bailroad etnke ofisTT. troops were not used in any case except where the Governor or Legislature of the State called upon the President for aid, under Section 4 of Axticle 4 of the Constitution, which declares that the United States shall protect the States against invasion; and, "on application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic THE PRESIDENT 119 violence " ; and except, also, to support tlie United States Marshals in making arrests on process from the United States Courts. At some points during the strike of 1877 the strikers thought to evade the interference of the President and of the United States Courts by permitting mail-cars to be run, while cutting off all freight and pas- senger traffic. The question whether the stop- page of passenger and freight traffic between the States was not an offense against the United States was not much considered, if at all. In some cases where particular railroads were in the hands of receivers appointed by the United States Courts, interference with the running of trains on such roads was treated as a contempt of the Court, and some persons were arrested and punished as for contempt. Subsequently a broader view was taken of the powers of the United States Courts and of the President, and a jurisdiction was Highways of m- T, iniin ii teratate commerce exercised by each that had not be- and the mails. fore in like cases been exercised, but was clearly within the scope of their Constitutional powers. It was held that a mail-train was composed not only of postal-cars, but of such other cars as were usually drawn with the postal-cars in the train; that the railroad companies could not be required to run mail-cars, when prevented 120 THIS COUNTRY OF OURS by violence from hauling witK tliem other coaches assigned to the train ; and that any cutting out of cars from a mail-train was an interference with the transportation of the United States mails. It was also held that the stoppage of trains — freight or passenger — running from one State into another — that is, conducting interstate commerce — or the tearing up of or obstructing the tracks over which such interstate commerce was carried, was an offense against the peace of the United States. Such an offense may be enjoined by the Courts, and the Army of the United States may be used by the President to restore order, without waiting for any call from the State Legislature or the Governor for state call for aid. assistance. It is not " domestic vio- Domesticvioience. Iq^^^q^" j^ the sense of the section just quoted, but an attack upon the powers of the National Government, and neither the request nor the consent of the State is needed to give the Presi- dent a right to use the means placed in his hands by the Constitution, to preserve the peace of the United States, and to see that the mails and inter- state commerce are neither stopped nor impeded by violence. A strike of violence affecting a street railway in a city, or a shop or factory or coal mine, or other local interest, or a riot raised for the lynching of a prisoner charged with an offence against the State — all these must be dealt with by THE PRESIDENT 121 the State authorities, save that, as has been seen, the President may be called upon for aid by the Legislature or Governor. There is a class of persons residing in the States to whom the direct protection of the United States is due, though no proper legislation has yet been passed to make it effective. These are citizens of foreign countries who, under the treaties we have with such countries, are domiciled in the States, and to whom such treaties guarantee the protec- tion of the law. As yet Congress Eights of aliens has not legislated to give the United lyncWngs. States Courts jurisdiction of prosecutions for of- fences against such persons, in derogation of their treaty rights. The killing of some Italian sub- jects in New Orleans, in March, 1891, and the de- mand of the Italian Government for the punish- ment of the offenders, and for an indemnity, brought this strange and unsatisfactory condition of things very strongly to the attention of our Government. The United States had made a treaty with Italy giving certain rights to the sub- jects of that kingdom living in this country. Yet, when the demand was made upon the United States that the offenders should be tried and pun- ished, we could only say. We are powerless ; we have left that to the State authorities and can only suggest that proceedings be taken by them. This 122 THIS COUNTRY OF OURS was manifestly unsatisfactory. The United States made the treaty. Italy could not make a treaty ■with Louisiana, nor demand an indemnity of her. In a message to Congress the President said : The lynching at New Orleans in March last of eleven men of Italian nativity by a mob of citizenis was a most deplorable and discreditable incident. It did not, how- ever, have its origin in any general animosity to the Italian people, nor in any disrespect to the Government of Italy with which our relations were of the most friendly character. The fury of the mob was directed against these men as the supposed participants or acces- sories in the murder of a city officer. I do not allude to this as mitigating in any degree this offence against law and humanity, but only as affecting the international questions which grew out of it. It was at once repre- sented by the Italian Minister that several of those whose lives had been taken by the mob were Italian subjects, and a demand was made for the punishment of the par- ticipants, and for an indemnity to the families of those who were killed. . . . The views of this Government as to its obliga- tions to foreigners domiciled here were fully stated in the correspondence, as well as its purpose to make an investigation of the affair, with a view to determine whether there were present any circum- stances that could, under such rules of duty as had been indicated, create an obligation upon the United States. THE PRESIDENT 123 The President further said : ■ Some suggestions growing out of this unhappy inci- dent are worthy the attention of Congress. It would, I believe, be entirely competent for Congress to make offences against the treaty rights of foreigners domiciled in the United States cognizable in the Federal Courts. This has not, however, been done. ... It seems to me to follow, in this state of the law, that the officers of the State charged with police and judicial powers in such cases must, in the consideration of international questions growing out of such incidents, be regarded in such sense as Federal agents as to make this Government answerable for their acts in cases where it would be an- swerable if the United States had used its Constitu- tional power to define and punish crimes against treaty rights. Like incidents have frequently occurred and will occur again, and Congress should so legislate as to give the United States Courts appropriate powers to protect those who are here in the " peace of the United States." We have often heard it said that the United States protects Americans domiciled in a foreign country from injury, sending fleets to Pr otection of . citizens against enforce our demands, but that it fails violence, to give protection to our citizens at home, against unjust or oppressive laws, or the unlawful and vio- lent destruction of their property or lives, or the denial of their political rights. The statement has 124 THIS COUNTRY OF OTJBS a good deal of truth in it. But the explanation is that in the one case the Constitution and laws have given the power to the President to act ; and, in the other, have in a large measure, left to the States the control of elections and the duty to protect citizens from injuries to their persons or property. The Constitution declares that "the President shaU be Commander-in-Chief of the Army and Preeident is Navy of the United States, and of the Commander -in-. ,., in Chief. militia of the several States when called into the actual service of the United States." Undoubtedly he might assume the command in person — take the field and conduct military opera- tions — but he has never done so and is not likely to do so. The other duties laid upon him make it practically impossible that he should do so, at least for any length of time. But he does com- mand through others, and his order to any com- manding olEcer is imperative. Mr. Lincoln fol- lowed the movements of our armies during the Civil War very closely, and often expressed, with rare good judgment, to the commanding officer, views as to the proper use of his troops; but he did this in a suggestive rather than an imperative form. Justice Miller, in his lectures on the Constitu- tion, says : THE PRESIDENT 125 How far President Lincoln actually interposed his own will and his own judgment in the conduct of this war will perhaps never be fully known, though it is well un- derstood that on many important occasions, and in great emergencies, he enforced his judgment in many ways; mainly, however, in displacing commanders of large armies and appointing others, until success established his own confidence and the confidence of the public in a few great military leaders.' The President cannot declare war. Congress must do that. But that the provision of the Con- stitution making him Commander-in- congreBS must Chief was intended to confer upon "J^"'"™™'- the President the power to use military force in executing the laws, and in protecting the property of the United States and its officers in the dis- charge of their duties, there can be no doubt. It would not be appropriate here to discuss the va- rious limitations that Congress has imposed, or at- tempted to impose, upon the power of the Presi- dent to use the army in enforcing the laws. The people are very properly jealous of the interfer- ence of the military in civil affairs, and will justify it only in cases of obvious necessity. This con- sideration, and the liability to impeachment for any improper use of his powers, will always make the use of the army, by the President, to keep the peace, a matter of last resort. ' Miller on the Constitution, p, 164. CHAPTER Vni THE PKESIDENT (Oontdiued) How Bills are dealt with — The Veto — Appkoval op Bills — "Pocket Veto" — "Ridees" — Theory of the Veto — Prac- tice — The Treatt-making Power — Action in Senate — Par- ticipation OP THE House — Abrogation. The President, by the power of the veto, be- comes a very large factor in determining whether a bill shall become a law. Section 7 of Article 1 contains the grant of this power, and reads, in part, as follows : Every bill which shall have passed the House of Rep- resentatives and the Senate, shall, before it become a law, be presented to the President of the United States ; if he approve he shall sign it, but if not he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall like- wise be reconsidered, and if approved by two-thirds of that House, it shall become a law. But in all cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each 126 THE PRESIDEKT 127 House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law. There was much discussion in the Constitutional Convention upon the subject of the veto. Some thought an absolute veto necessary to jjiscuBsion in enable the Executive department to convention, preserve its constitutional powers against the en- croachments of the Legislative department; some thought the justices should be associated with the President in the use of the veto power ; and others were opposed to any Executive check upon the powers of the Legislature. Dr. Franklin contributed to the discussion this remarkable statement: He had had some experience of this check in the Ex- ecutive on the Legislature, under the Proprietary Gov- ernment of Pennsylvania. The negative of the Gov- ernor was constantly made use of to extort money. No good law whatever could be passed without a private bargain with him. An increase of his salary, or some donation, was always made a condition ; till at last it became the regular practice to have orders in his favor, on the Treasury, presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter. ' 'Elliot's Debates, vol. 5, p. 152. 128 THIS COUNTEY OF OUES When a bill has passed both Houses of Congress and has been signed by the President of the Senate HowthePreBident ^nd the Speaker of the House, it is deals with bills, ^^jjgjj^ Y)y the clerk of the Committee on Enrolled Bills, to the Executive Mansion, where [ — , the date of its delivery is stamped upon it. The ! practice is then to send the bill to the head of the I department to which its subject-matter belongs — '^o the War Department, if to army matters ; to the Interior, if to pensions, or public lands, or Indian affairs, etc. — for the examination of the Secretary, and for a report from himXs to any objections that may occur to him. As to the frame of the bill, and as to any Constitutional questions involved, the Attorney-General is often consulted, though the bill does not relate to his department. The President then takes up the bill, with the report from the de- partment, and examines it, and if he approves writes thereon " Approved," giving the date, and signs his name. The bill, now become a law, is then sent to the State Department to be filed and published in the Statutes-at-Large. If the President finds sach objections to the bill as to prevent him from giving it his approval two courses are open to him. He may, at any time within ten days (Sundays not counted) from the time it was brought to him, return the bill to the Senate or to the House — according as the bill was THE PRESIDENT 129 first passed by the one or the other — with a mes- sage stating his objections to it ; or he may suffer the bill to lie upon his table, taking no action whatever upon it. If he takes no action then the fate of the bill turns upon whether Congress remains in session during the ten days — and by this is not meant that both Houses shall be in session every legislative day of the ten. If it does the bill becomes a law ; if it does not, the bill fails — does not become a law. Jn the Statutes-at-Large of the United States many laws are^fqund which do not have the Presidejat's signature. These are usually acts of small moment — relief bills or such like, which he could not approve, but did not deem of sufficient moment to be the subject of a veto , message. ; But, now and then, laws of a general nature and of the highest importance appear without the President's signature. Mr. Cleveland allowed the Tariff Bill of August, 1894 (known as the Wilson Bill), to become a law without his signature. If Congress adjourns before the expiration of the ten days given to the President for the consideration of a bill, and he does not sign it, but retains it without action, it fails, as has been The "pocket said. This is called a "pocket veto." ™'°-" It will be seen, therefore, that as to bills pre- sented to the President during the last ten days of 9 130 THIS COUNTEY OF OUKS a session of Congress his veto is an absolute, not a qualified, one. He has only to do nothing, and the bill fails. The object clearly was to secure to the President proper time for the examination of all bills. If a flood of biUs could be thrown upon him in the last ten days of the session, thus de- priving him of a proper time for examining them, and they were to become laws unless he stated his objections in veto messages, it would practically abrogate, as to many bills, the veto power. In fact, just such a flood of bills is usually A flood of billB. ' . •' passed, many m the very last hours of the session, when the attendance in the Houses is small, the members wearied by night sessions, and many of the leading members absent from their seats, serving on conference committees. Every interval in the consideration of the appro- priation bills is eagerly watched for and utilized by members who have some personal relief bill or some bill of a local character that they want to get through. This hasty legislation needs especial scrutiny, and it is well that when he is in doubt, and has no time to investigate, the President can use the "pocket veto." It sometimes happens that an important appropriation bill is passed in the very last moments of the session, and, indeed, by the true time, after the session is ended — ^for the hands of the clocks in the chambers are sometimes THE PEESIDENT 131 turned back to gain a few moments to complete the passage of a bill. The President, in recent times, generally goes to his reception-room in the Senate wing of the Capitol in the last hours ^f the session, especially if some of the appropriation bills are not yet disposed of, in order to save the time that would otherwise be necessary to carry the bills to the Executive Mansion. A Constitutional Amendment forbidding Con- gress to pass any laws in the last twenty-four hours of a session, save such as might have been re- turned with a veto, was suggested by President Grant. The object of this suggestion was " to / give the Executive an opportunity to examine and v approve or disapprove bills understandingly." But it would be no remedy for hasty legislation ; for the last day would then, as an Irishman might say, " be the day before the last," and the same rush and hurry would characterize it. There is another practice in legislation that greatly restrains the freedom of the President in using the veto power. What are called ^.^^^^ „^ " riders:; are often placed on general p"*""" ™'- appropriation bills — that is, legislation of a general character, having nothing to do with appropriations, is put into an appropriation bill. This is equiva- lent to saying to the President, " Give your ap- proval to this general legislation or go without the 132 THIS COUNTRY OF OURS appropriations necessary to carry on tlie govern- ment." President Hayes resisted attempts by this method to impair the Constitutional powers of the Executive, and vetoed five appropriation bills be- cause general legislation had been incorporated to which he could not give his assent. There are other practical restraints upon the freedom of the President in the exercise of the veto power. Very many laws contain more than one proposition — some a number of such — and the President must deal with them as thus associated. In each of the great appropria- tion bills many hundreds of distinct appropriations are made. Some of these the President may think to be wrong, either as matter of policy, or of Con- stitutional power ; but he cannot single these out ; he must deal with the biU as a whole. In some of the State Constitutions the Governor is given power to veto any item in an appropriation bill. It has been much contended that the veto was given to enable the President to defeat legislative Theories of the attempts to encroach upon his Con- veto-Practice. stitT;itional powers, and to protect those of the Judiciary ; and that he should use the veto only where he finds Constitutional objections to a bill. But the power is not so limited, and from the beginning has been exercised upon the ground of the inexpediency or unwisdom of the THE PRESIDENT 13B legislation proposed, as well as upon Constitutional grounds. The President, however, does not deal with bills submitted for his approval upon the prin- ciple that he should approve only such as he would have voted for if he had been a member of Con- ^ gress. Much deference is due to the Congress, and i vetoes have customarily been used only when the ! fault in the proposed legislation was serious in it- / self, or as a precedent. Washington used the veto ' but twice ; once for Constitutional objections, and once for reasons affecting only the wisdom and ex- pediency of the bill. Mr. Edward Campbell Mason, in his monograph upon the veto power, says : The veto is but an appeal to the sober second thought of the nation, and when that second thought is like the first the appeal can accomplish nothing, ^pp^^ j^ ^^^^ This seeming weakness in the veto is not thought. a defect. The theory of our Government is that in the long run the people are right. The veto would be a hindrance if it could permanently check the strong un- derlying tendencies in the public mind. And in any case, in a Government founded on nearly universal suffrage, a positive check to popular measures is not what is wanted. The most that can safely be done is to hinder the enactment of propositions until the people can determine whether they are really in earnest in their demands ; and this delay the veto power is most admir- ably constructed to accomplish. ' ' Mason : The Veto Power, p. 134 134 THIS COUNTKY OF OUKS When a bill is returned by the President to the House in which it originated, the veto message is Action on the i^^ad, and the question is put : " Shall ^®'°' the bill pass, the objections of the President to the contrary notwithstanding ? " The vote must be taken by yeas and nays, and entered on the journals. The object of this is that the public may know just how each member has voted, and that the record shall show whether or not two-thirds of the members have voted for the pas- sage of the bill. If two-thirds of each House of Congress are recorded in the affirmative the bill becomes a law. This does not mean two-thirds of all the members of each House, but two-thirds of those present and voting — a quorum being present. The treaty-making power is given to the Presi- Treaty-nmking ^®^*' (^ connection with the Senate) power. |jy ^j^g second paragraph of Section 2 of Article 2 of the Constitution, in these words : He shall have power, by and with the advice and eon- sent of the Senate, to make treaties, provided two-thirds of the Senators present concur. It will be noticed that the initiative — the nego- tiations with foreign Governments leading up to an agreement — and the framing of the articles of the treaty, are with the President. The Senate has no part ia the matter until the President com- THE PRESIDENT 135 municates the treaty to it, and asks its concurrence. It may then, however, either concur or reject, or concur with amendments. The high sanction and dignity of treaties is thus declared in Article 6 of the Constitution : This Constitution, and the laws of the United States which shall be made in pursuance thereof ; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. The power to make treaties is explicitly denied to the States by Section 10 of Article 1 of the Constitution : " No State shall enter . , 1 1 IT n n Denied to States. into any treaty, alliance, or conied- eration." And the third clause of the same section declares that " no State shall, without the consent of Congress, . . . enter into any agreement or compact with another State, or with a foreign power." When the Executive has agreed with any foreign power upon a treaty, and it has been duly signed by the Plenipotentiaries for their Action in Senate. respective Governments, it is sent to the Senate for its concurrence, and is considered there in secret session. Whatever may be said as to the wisdom or necessity of secret sessions for 136 THIS COUNTET OF OUKS other purposes it is manifestly often necessary that treaties, and tlie discussion of them, be kept in the confidence of those charged with conclud- ing them, until they are concluded. There was much debate in the Constitutional Convention upon the section relating to the treaty- making power. Mr. Randolph's plan tion. gave to the President, with the advice and approbation of the Senate, the power of mak- ing aU treaties. Mr. Pinckney's plan gave to the Senate "the sole and exclusive power to declare war, and to make treaties." The Committee of Detail recommended that " the Senate of the United States shall have power to make treaties, and to appoint ambassadors," etc. At a later day Mr. Madison proposed that the Senate should have power to conclude treaties of peace without the concurrence of the President. This proposi- tion went upon the theory that the President might, by reason of the increased power and in- fluence that a state of war gave him, be inclined to prolong a war unduly. Nor was the objection that the House of Repre- sentatives was excluded from any participation in Participation of ^^^ making of treaties overlooked. the Souse. -^^ Mason said, while the proposi- tion stood to lodge the treaty-making power in the Senate, that that body " could already sell the THE PRESIDENT 137 whole country by means of treaties " ; and again that the power might be used to " dismember the Union." Mr. Morris proposed that no treaty should be binding unless ratified by law, that is, by both Houses. Mr. Wilson said a treaty might be made " requiring all the rice of South Carolina to be sent to one particular port." When the clause was reported by a committee, in about the form finally agreed upon, Mr. Wilson moved to insert after the word " Senate " the words " and House of Kepresentatiyes," and said that " as trea- ties are to have the operation of laws, they ought to have the sanction of law also " — meaning that the House should concur with the President and Senate in the making of a treaty, as in the making of a law. But, though the attempts in the Convention to give the House of Representatives a direct pai-t in the making of treaties failed, it is itspracScai still true that many important treaty power, stipulations depend for their execution upon the action of the House. If a treaty stipulates for the payment of money by the United States, the money cannot be taken from the Treasury without an appropriation. It may be said that as a treaty is a part of the " supreme law of the land," it is the duty of Congress to appropriate the money necessary to carry it into effect ; and that in the 138 THIS COUNTRY OF OURS making of the appropriation the House has no right to consider the question of the value or pro- priety of the treaty. But, all the same, if the ap- propriation is not made the treaty fails. This question has several times been discussed in con- ference between the Senate and the House, as also the further question whether commercial treaties which modified our revenue laws required legisla- tion to give them effect. In 1816 the Senate passed an act relating to a commercial treaty with England. It was in substance a declaration that any existing laws in conflict with the treaty should be held to be of no effect — upon the theory that the treaty being the later expression, and the " su- preme law of the land," took effect without a re- peal of the conflicting laws, and that only a decla- ration of the fact was necessary. The House took the view that legislation adapting the laws to the treaty was necessary. The conferrees on the part of the House reported : Your committee understood the committee of the Senate to admit the principle contended for by the House, that whilst some treaties might not require, others may require legislative provision to carry them into eflFect; that the decision of the question how far such provision was necessary must be founded upon the peculiar character of the treaty itself. ' ' Introductory note, Treaties and Conventions of the United States with other Powers, original edition, p. 944. THE PRESIDENT 139 So in the case of the treaty with Eussia for the purchase of Alaska the House adopted a resolution that " the stipulations of the treaty cannot be carried into full force and effect, except by legislation to which the consent of both Houses is necessary." ' In spite then of the provisions of the Constitution lodging the treaty-making power in the President and the Senate, and declaring that " all treaties made . . . under the authority of the United States shall be the supreme law of the land," we have come practically to recognize the fact that leg- islation is often necessary to give this part of the " supreme law of the land " any effect. Indeed, most treaties require appropriations for expenses or indemnities, or the Hke, and commercial trea- ties usually modify our revenue laws. If they do not of their own force repeal conflicting laws and carry the necessary appropriations, there must be legislation. Usually appropriations to carry out a treaty have been given freely by the House ; but there is power to withhold them, and so to defeat the treaty. As to treaties involving our revenue laws, the House — having by the Constitution the sole power to originate revenue bills — has claimed the right to act upon a consideration of the wis- dom or unwisdom of the treaty. ' Introductory note, Treaties and Conventions of the United States with other Powers, original edition, p. 944. 140 THIS COUNTKY OF OURS Many treaties contain a provision that either of the high contracting parties may, upon specified Abrogated by later notice, declare them abrogated. "When '*^' no such provision is inserted, and the obligations assumed are not limited as to time, the common impression, perhaps, is that there are only two events— the mutual consent of the par- ties, or a state of war — that can relieve a nation from its solemn treaty covenants. But it is not so, as to the United States, at least, for it has been held that an act of Congress, of later date than the treaty, may abrogate it. The Supreme Court of the United States says (Justice Gray), in the Chinese Exclusion case (149 U. S., 720) : In our jurisprudence, it is well settled that the pro- visions of an act of Congress, passed in the exercise of its Constitutional authority, on this, as on any other subject, if clear and explicit, must be upheld by the Courts, even in contravention of express stipulations in an earlier treaty. As was said by this Court in Chae Chan Ping's case, following previous decisions : "The treaties were of no greater legal obligation than the act of Congress. By the Constitution, laws made in pur- suance thereof and treaties made under the authority of the United States are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. A treaty, it is true, is in its nat- ure a contract between nations, and is often merely THE PRESIDENT 141 promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force, and relates to a subject within the power of Congress, it can be deemed in that partic- ular only the equivalent of a legislative act, to be re- pealed or modified at the pleasure of Congress. In either case the last expression of the sovereign will must control. " " So far as a treaty made by the United States with any foreign nation can become the subject of ju- dicial cognizance in the Courts of this country, it is subject to such acts as Congress may pass for its enforce- ment, modification or repeal." Under this view of tlie law two-thirds of the House and two-thirds of the Senate may, over the objections of the President, abrogate pog, ^^t work a treaty. The unlearned might con- '"'''' ^*^^' elude if, as the Supreme Court says, a treaty and a law are of equal force, and the law overrules the treaty, because it is a later expression of the sovereign vdll that a treaty later in time than the law would override the latter. But things do not always work both ways, and the probability is that this is one of those that do not. For the Court has held that a law abrogates an earlier treaty, and Congress has apparently settled the principle that ,a treaty does not annul an earlier law. CHAPTEE IX THE PRESIDENT (Continued) The Pakdonino Powek— Amnesty — ^Mb. Lincoln's View — At- tempt TO Except Treason — Reprieve — Commutation — Impeachment — The Process — The Penalty — A Rare Pro- ceeding—Some Cases — Andrew Johnson. The pardoning power, one of the great executive powers, is conferred upon the President in these The pardoDtog ^o^^^s : "And he shall have power power. ^Q grant reprieves and pardons for offences against the United States, except in cases of impeachment." A pardon may be granted before trial. Such a course is very unusual, however, in the case of an individual; but it is the usual method when large numbers of persons have become liable to criminal prosecutions for a common or for like offences, and the Executive desires to set them free from the penalties of the law. In such cases the pardon takes the form of a Proclamation of Amnesty-^on- Amnesty, and describes, not indi- ditions. -yiduals, but a class. Instances of this form of pardon are found in the proclamations granting amnesty to those who took part in the 142 THE PRESIDENT 143 rebellion, and to the Mormons for offences against the anti-polygamy laws. These pardons, as well as individual pardons, may be granted on condi- tions stated, and in such case are available only to those who comply with the conditions. In 1862 Congress passed an act which purported to authorize the President to extend pardon and amnesty to persons who had partici- ^r. Lincoln to pated in rebellion. In December, congreeB. 1863, President Lincoln issued such a proclama- tion with conditions, and in his message to Con- gress he said, "The Constitution authorizes the Executive to grant or withhold pardon at his own absolute discretion;" and Chief Justice Chase speaks of the law as "the suggestion of pardon by Congress, for such it was, rather than author- ity." He further said : " To the Executive alone is entrusted the power of pardon ; and it is granted without limit. Pardon includes amnesty. It blots out the offence, pardons and removes all of its penal consequences. It may be granted on con- ditions. . . . Now it is clear that the Legis- lature cannot change the effect of such a pardon any more than the Executive can change a law." ^ There was a strenuous effort in the Constitu- tional Convention to except cases of treason, as well as cases of impeachment, and the attempt 'U. S. 0. Kline, 13 Wal., 147. 144 THIS COUNTRY OF OURS would not unlikely have succeeded but for the difficulty of agreeing as to where the power of Attempt to ex- P^rdou in such cases could be better cept treason. lodged than in the Executive. The pardoning power proceeds upon the grounds that, by reason of the rigidity of the criminal code, of the liability to error of every human tribunal, and of the possible discovery of such errors, or of new evidence, after the courts have ceased to have any power over the case ; or by reason of the existence of extenuating facts which the courts could not notice, or of evidence that a partial execution of the sentence has wrought out the fuU results of just punishment, there should be lodged in some officer or department the power to remit or miti- gate a sentence. An old writer exclaimed, " Happy the nation in which pardons will be considered as dangerous." But a humane and reasonable gov- Arg^neBtB for emmeut wiU always provide a re- power of pardon, g^^.^^ ^^^^^ ^^^^ ^^^ y^^ appealed to to mitigate undue penalties and to rescue those whose innocence has been disclosed. Montaigne says : " In Persia, when the King has condemned a person, it is no longer lawful to mention his name or to intercede in his favor. Even if the Prince were intoxicated, or non compos, the decree must be executed." ' The Supreme Court of the ' The Spirit of Laws, Book 3, chap. 10. THE PRESIDENT 145 United States,* speaking of the pardoning power, says : " Without such a power of clemency, to be exercised by some department or functionary of a gOYemment, it would be most imperfect and de- ficient in its political morality." A reprieve is a temporary suspension of the exe- cution of a sentence. This power is often used for the purpose of giving the President Keprieve-an in- time to examine an application for a cident. pardon, or to enable the condemned to furnish fur- ther evidence in support of such an application. One of our Presidents relates this incident : " An application for a pardon in behalf of a man condemned to death for murder was present- ed to me, and after a careful examination the ap- plication was denied. On the day before the day fixed for the execution I arrived at the house of a friend on a visit, and found that just before my ar- rival a telegram had come asking for a reprieve for the condemned man. The message had been tele- phoned to the house of my host and received by his wife. Her sympathies, and those of the whole household, were at once enlisted for the poor fel- low, and though the gibbet w-as over twelve hun- dred miles away the shadow of it was over the house, and I was the hangman. A telegram to the United States Marshal, granting a short reprieve, ' Ex parte Wells, 18 How., 310. 10 146 THIS COTJNTEY OF OURS was sent, and the day of the execution was again my uncomfortable secret." It is not a pleasant thing to have the power of life and death. No graver or more oppressive responsibility can be laid upon a public officer. The power to pardon includes the power to commute a sentence, that is, commntationof *« ^^duce it. When the sentence is Bentence. death the President may commute it to imprisonment for life, or for any fixed term; and when the sentence is imprisonment for life, or for a fixed term of years, he may reduce the term, and if a fine is imposed he may reduce the amount, or remit it altogether. The course of procedure in an application for a pardon is this : A petition is drawn and signed Appiicationa for by the applicant setting forth the pardon— Proceed- . . ings. grounds of the application. This is usually accompanied by other petitions and letters from citizens urging clemency. The papers should go directly to the Attorney-General, and if sent to the President are referred to the Department of Justice without examination. The first step here is to refer the papers to the Judge and District Attorney who tried the case, for any statement or recommendation they may be inclined to make. In the Department of Justice there is a pardon clerk, to whose desk all papers relating to pardons primarily go. He classifies and makes a brief of THE PRESIDENT 147 them, and then forwards them to the Attorney- General, accompanied by a letter stating his -view of the case. The Attorney-General then takes up the case, and after an examination indicates his recommendation on the jacket inclosing the papers, and sends them to the President. Here the case is decided, after a careful examination of every paper, especially when the sentence is a severe one. The conclusion of the President, " Pardon granted," or " Pardon refused," or " Sentence com- muted to ," is endorsed upon the jacket. Some- times the President states briefly the reasons upon which his conclusion is based. The papers are then returned to the Department of Justice, and the oiEcer having the custody of the prisoner is notified of the conclusion reached. The pardon is prepared at the Department of State, as the Great Seal is there, and sent to the President for his signature. There is an increasing amount of pardon busi- ness coming to the President's desk, and he often has many cases waiting his action, increasing num- Offences against the postal laws, rev- ""ses. enue laws and national banking laws make up the bulk of this business ; but cases of murder from the Territories and the District of Columbia are quite frequent. The Indian Territory has been the abode of lawlessness, and crimes against hu- 148 THIS COUNTRY OF OURS man life have been very common there. Until recently crimes committed by or against white men in that Territory were triable mainly in the United States Court for the Western District of Arkansas, at Fort Smith, and Judge Parker, of that District, has probably sentenced as many men to death as all the other United States judges com- bined. The gibbet was never taken down. The papers in these murder cases are usually voluminous — a full record or an abstract of the evidence making part. If the trial seems to have been fairly conducted, and no new exculpatory evidence is produced, and the sentence does not seem to have been unduly severe, the President refuses to interfere. He cannot weigh the evi- dence as well as the judge and jury. They saw and heard the witnesses, and he has only a writing before him. It happens sometimes that the wife or mother of the condemned man comes in person to plead for mercy, and there is no more trying ordeal than to hear her tearful and sobbing utter- ances, and to feel that a public duty requires that she be denied her prayer. "We have seen how the President gets into office, and we will now briefly look at the Constitutional Impeachment- P^ocess of putting him out of office. ^°^'- Section 4 of Article 2 of the Constitu- tion provides that " The President, Vice-President, THE PRESIDENT 149 and all civil officers of the United States, shall be removed from office on impeachment for, and con- viction of, treason, bribery, or other high crimes and misdemeanors." " The sole power of im- peachment " is given to the House of Eepresenta- tives, that is, the power to resolve that an officer shall be impeached for specified offenses, and to prefer the charges or articles of impeachment, which take the place of an indictment in an ordi- nary criminal trial. " The sole power to try all impeachments '' is given to the Senate, and " When sitting for that purpose, they shall be on oath or affirmation. When the President of the 'United States is tried, the Chief Justice shall preside ; and no person shall be convicted without the concur- rence of two-thirds of the members present." The iudgment, in case of conviction, ousts •• ° > ' Penalty. the officer from the office he is hold- ing by an express provision of the Constitution. The Senate cannot mitigate or change that penalty, but it may or may not add the further penalty of a future disqualification to hold office under the United States. From the penalties imposed upon conviction by the court of impeachment the Presi- dent cannot relieve by pardon. No imprisonment, or fine, can be imposed by the Senate ; but the impeached officer is still liable to be indicted in the courts, and may there be made to suffer death. 150 THIS COUNTRY OF OURS imprisonment, or any other legal penalty for his crime. Whether the Senate can, upon its own mo- can new trial be tion, or upon the request of the House granted? ^£ Representatives, open a judgment of conviction upon impeachment, and set it aside, is an interesting but tmsettled question, as is also the question of the liability to impeachment of a person who has by resignation retired from office. The use of the process of impeachment has been, and is likely to continue to be, very rare. It is Arareandcnm- *^® mOst CUmbrOUS of all judicial toons proceeding, proceedings. The charges may have a political origin or character, and therefore tend to bring party feeling into play, making conviction difficult — a two-thirds vote of the Senate being re- quired to convict. The meaning of the words "other high crimes and misdemeanors " is uncer- tain ; and all this, with the fact that the terms of office of the President and his appointees are short, tends to discourage the frequent use of the process of impeachment. Mr. Bryce says : Impeachment, of which an account has already been given, is the heaviest piece of artillery in the Congres- sional arsenal, but because it is so heavy it is unfit for ordinary use. It is like a hundred-ton gun which needs complex machinery to bring it into position, an enor- mous charge of powder to fire it, and a large mark to THE PRESIDENT 151 aim at. Or to vary the simile, impeachment is what physicians call a heroic medicine, an extreme remedy, proper to be applied against an official guilty of political crimes, but ill adapted for the punishment of small transgressions. ' The Committee of Detail in the Constitutional convention first reported in place of the present provision, which denies to the Presi- Pardoning pow- , p ^^ ^^^^ ^*** extend dent the power to pardon m cases of to impeachment, impeachment, a provision that the President's pardon should not be pleaded in bar of impeach- ment proceedings. " This," says Mr. Curtis, " would have made the power precisely like that of the King of England ; since, by the English law, although the King's pardon cannot be pleaded in bar of an impeach- ment, he may, after conviction, pardon the offender. But as it was intended in the Constitution of the ' United States to limit the judgment in an impeach- ment to a removal from oiSce, and to subsequent disqualification for office, there would not be the same reason for extending to it the executive power of pardon that there is in England, where the judgment is not so limited." " In the Constitutional convention there was some discussion as to whether impeachments ' Bryce : American Commonwealth, vol. i., p. 208. ' Curtis : Constitutional History of the United States, p. 679. 152 THIS COUNTEY OP OURS should be tried by the Supreme Court or by the Senate. Mr. Madison and Mr. Pinckney objected Some propoBi- to the Senate as rendering the Pres- tions In Conven- , _ . tion. ident too dependent on the Legis- lature. Gouvemeur Morris and others thought no other tribunal than the Senate coidd be trusted, and it was finally so agreed, the Chief Justice being designated to preside on the impeachment of the President. When the scheme stood for the trial of impeachments by the Supreme Court it became necessary to provide another tribunal for the case of an impeachment of one of the Su- preme Court Justices, and the Senate was recom- mended. A proposition that the officer impeached should be suspended from office pending the trial was wisely rejected by the convention, and the officer now continues to exercise his office until a judg- ment of conviction is entered. The other rule would have put it in the power of the House of Representatives to suspend the President from office and to cast the office temporarily upon an- other. This would have fatally weakened the Ex- ecutive and offered to partisanship a dangerous temptation. On the whole, no better mode of try- ing impeachments than that provided by the Con- stitution has, even in the light of our experience and development, been suggested. THE PRESIDENT 153 The process of impeachment has been put into exercise seven times. In 1797 William Blount, a Senator from the State of Tennessee, impeachment ■was impeached for high crimes and '^"^^■ misdemeanors. The charge was that he had con- spired to set on foot "within theUnited States a hos- tile expedition against the possessions of Spain in Florida, to excite the Creek and Cherokee Indians to hostilities against the subjects of Spain, and to overturn the authority and influence of the agents of the United States among those Indians. Be- fore the trial of the impeachment he was expelled from the Senate by a resolution of that body, and when arraigned pleaded that he was no longer a Senator, and that he was not, at the time of the commission of the offences, a civil ofScer of the United States. The plea was sustained by the Senate and the accused was acquitted. In 1803 John Pickering, United States District Judge for New Hampshii-e, was impeached for cer- tain malfeasances in ofiice, in connection with which it was also charged that he had been drunk upon the bench, and was guilty of offences degrading to his character as a Judge. The accused did not appear and make any defence, but his son pre- sented a petition alleging the insanity of his father. The accused was convicted and was removed from his office. 154 THIS COUNTEY OF OURS About the same time impeaclimeiit proceedings were begun against Samuel Cbase, a Justice of the Supreme Court. The offence charged against him was misconduct in certain trials. He was acquitted by a majority vote of the Senate upon some of the articles of impeachment, and by a minority vote — but more than one-third of the Senate — ^upon the other articles. In 1830 James H. Peck, Judge of the United States District Court for the District of Missouri, was impeached for malfeasance in office, especially in relation to certain proceedings in contempt against a member of the bar. He was acquitted by a vote of twenty-two for conviction to twenty- one against. In 1862 Judge Humphreys, of the District Court of the United States for the District of Tennessee, was impeached. He had accepted and discharged the duties of a similar judicial position under the Confederate Government without resigning his office under the United States. He was charged with inciting rebellion, with organizing armed rebellion against the United States, etc. The accused did not appear, and was convicted and sentenced to be removed from office and to be disqualified from holding office. The impeachment trial of Andrew Johnson is the most notable in the history of the exercise of THE PRESIDENT 155 tliis power, but it is not possible here to describe at any length the proceedings in the case. They are reported at length in a special vol- ^^^^ j„b„,„^., ume of the " Congressional Eecord." ''^^■ Chief Justice Chase presided with great dignity and impartiality. The managers on the part of the House were John A. Bingham, of Ohio; George S. Boutwell, of Massachusetts ; James F. Wilson, of Iowa; John A. Logan, of Illinois; Thomas Williams, of Pennsylvania; Benjamin F. Butler, of Massachusetts, and Thaddeus Stevens, of Penn- sylvania. The counsel for the President as origi- nally selected were Henry Stanbery, Benjamin R. Curtis, Jeremiah S. Black, William M. Evarts and Thomas A. R. Nelson. On the second day of the trial Judge Black withdrew and was succeeded by William S. Groesbeck. The " Congressional Eec- ord " states : On Monday, the 3d of March (1868), articles of im- peachment were agreed upon by the House of Represent- atives, and on the 5th they were presented to the Senate by the managers on the part of the House, who were accompanied by the House, the grand inquest of the nation, as a committee of the whole on the state of the Union. There were eleven articles in the presentment. They charged the attempted removal of Mr. Stanton as Secretary of War, and the appointment of Adju- 156 THIS COUNTRY OF OURS tant-General Thomas as Acting Secretary of War in violation of the Tenure of Office Act; the attempt to influence General Emery of the Army, in com- mand of the Department of Washington, to violate the law, and to receive orders from the President not issued through the General of the Army, -with the intent to prevent the execution of the Tenure of Office Act. They further charged that the Presi- dent had, in public speeches, attempted to " bring into disgrace, ridicule, hatred, contempt and re- proach the Congress of the United States," and to incite the people to disregard the laws; that he had declared publicly that the Congress "was not a Congress of the United States author- ized by the Constitution to exercise legislative power under the same." These charges were sup- ported by numerous extracts from the public speeches of the President, made during that fa- mous but mortifying tour of his through the country. Benjamin F. Butler, one of the managers on the part of the House, in his book, says of his own part in the case : As to myself, I came to the conclusion to try the case upon the same rules of evidence, and in the same man- ner, as I should try a horse case, and I know how to do that. I therefore was not in trepidation. When I dis- cussed that question with the managers they seemed to THE PEESIDENT 167 be a good deal cut up. They said : ' ' This is the greatest case of the times, and it is to be conducted in the highest possible manner. " " Yes, ' ' I said, ' ' and that is accord- ing to law ; that is the only way I know how to conduct' a ease." Finding me incorrigible, they left me to my own devices.' On May 16tli the vote was taken in the Senate, nineteen Senators voting "not guilty," and thirty- five "guilty" — one less than the necessary two- thirds. Eleven Republican Senators, four of whom had supported Mr. Johnson's administration, voted for acquittal. The other seven were tremendously assailed by their political friends, but adhered firmly to their convictions. Mr. Foster says that " History has already pronounced her verdict that they saved the country from a precedent big with danger and vindicated the wisdom of those who made the Senate a court for the trial of im- peachments." ^ The next and last case occurred in 1876, when William W. Belknap, who was Secretary of War in the Cabinet of President Grant, was „ „ , Belknap's case. impeached. The charge against him was that he had corruptly received money from a post trader who had been appointed by him, Mr. Belknap resigned before he was impeached, and his ' Butler's Book, p. 929. ' Foster ; Commentary on the Constitution, vol i. , p. 564. 158 THIS COUNTRY OF OURS counsel interposed a plea that at the time of the im- peachment Mr. Belknap was not an officer of the United States. The plea was overruled, but by a majority of less than two-thirds of the Senate. The Senators who had voted to sustain the plea, upon the ground that the Senate was without jurisdic- tion, by reason of the resignation, subsequently voted for acquittal, and, being more than one-third of the Senate, the proceedings failed. CHAPTEE X THE PRESIDENT (CoNTiisruED) Official Life at the Executive Mansion — A Home and Office Combined — Historic Desk — Office Foboe — The Mail — Autographs — Begging Letters — Business Receptions — Desk Wokk—Office-seekebs— Social Obsebvances — Wash- ington's Questions— House and Gkounds Public. The " Executive Mansion " is the official desig- nation of the home of the President ; the uniyersal popular designation is the "White . The Executive . Maneion— home House. It IS an office and a home and office, combined ^ — an evil combination. There is no break in the day — no change of atmosphere. The blacksmith, when the allotted hours of work are over, banks his fire, lays aside his leather apron, washes his grimy hands and goes home. And he gets a taste of unsmoked morning air before he resumes his work. There is only a door — one that is never locked — between the President's office and what are not very accurately called his private apartments. There should be an Executive Office building, not too far away, but wholly distinct from the dwelling-house. For every one else in the public service there is an unroofed space be- 159 160 THIS COUNKTY OF OURS tween the bedroom and the desk. The Cabinet room intervenes between the library and the room usually (but not always) used by the President as President's of- ^^ office. Presidents Grant, Hayes, ^''^' and Garfield used the Cabinet-room as an office. President Arthur took the large oval room above the Blue-room, which had before been a library and private sitting-room, for his office ; and during his first term Mr. Cleveland so used it. But the room next east of the Cabinet-room was used by Mr. Lincoln, and generally before his time, as the office, and it is now so used. The Cabinet-room is used as a waiting-room. The President tries to get to his office in time to ex- amine his mail before his callers begin to arrive, but is often anticipated by Senators and Kepre- sentatives who have early committee engagements at the Capitol. The broad flat desk at which he seats himself is an artistic and historic piece of cab- Historic desk . ^ . . ., T met work. It is inscribed : Her Majesty's ship "Resolute," forming part of the expedition sent in search of Sir John Franklin in 1852, was abandoned in latitude 74° 41' north, longitude 101° 22' west, on 15th May, 1854. She was discovered and extricated in September, 1855, in latitude 67° north, by Captain Buddington, of the United States whaler, " George Henry." The ship was purchased, fitted out. THE PRESIDENT 161 and sent to England as a gift to her Majesty, Queen Vic- toria, by the President and people of the United States, as a token of good will and friendship. This table was made from her timbers when she was broken up, and is presented by the Queen of Great Britain and Ireland to the President of the United States as a memorial of the courtesy and loving-kindness which dictated the offer of the gift of the " Resolute." The office force of the White House is not large. The Private Secretary (now Secretary to the President) is at the head of it. ... The office force. His office is an important one, and discretion is the talent most in demand ! He is not a deputy President. There is an Assistant Secretary, who carries and delivers the messages to Congress, and keeps a record of appointments and of bills submitted for the President's approval. There are six clerks, two of whom are executive clerks. One of these is stenographer to the Presi- dent and has charge of the mail. The other is a purchasing and disbursing officer. Of the other clerks, one acts as stenographer to the Private Secretary, one is a telegraph operator, and these, with the remaining clerks, assist in the general office work. There is a doorkeeper for the Presi- dent, and one for the Private Secretary. These, with four messengers, complete the office force proper. 11 162 THIS COXJNTKY OF OURS The mail that comes daily to the Executive Mansion is very large ; in the early months of an administration it is enormous, as many as eight hundred letters being sometimes received in a day. But few of these letters reach the President's desk. The mail is sorted by a trusted and confidential clerk ; family and personal letters are sent unopened to the per- sons to whom they are addressed ; letters relating to appointments are, as a rule, acknowledged by one of the clerks and referred to the proper De- partment ; and only those that relate to the more important appointments and to matters of public interest are sent to the President's desk. No other course is possible, for, if he dealt personally with all his correspondents, the President could do nothing else. As it is, the mail that comes to his desk is large. The information has been spread very widely that the President does not read many letters, and the devices that are em- ployed to make sure that letters will be seen "Personal" ^J ^^^ ^^® various and amusing, and "Private." g^^ ^-^^ Secretary soon learns that the letters marked "personal," or " private," are quite as likely to be applications for office or re- quests for autographs as anything else. Some- times a formal protest against the Private Secre- tary is endorsed on the envelope, as, " This is for THE PRESIDENT 163 the President, not for the one who reads his let- ters." A correspondent who had forwarded many papers, the acknowledgment of all of which had been accompanied by the assurance that the papers had been referred to the appropriate department, rather pathetically wrote : " Your letters are all worded about the same." Very many of the letters addressed to the Presi- dent are trivial, not a few of them impertinent, and some of them angry and threatening. These, if the Private Secretary is a judicious man, the President never hears of, and the malicious intent of the writer is thwarted. The re- AntographB — bed-quilts — lunch- quests for autographs are scarcely oio'iis. numerable. A card, with an engraving of the Executive Mansion upon it, is provided for that use, and a pile of these cards upon his desk, and another of autograph albums, make their mute appeal to the President nearly every morning. Patches for autograph bed-quilts and lunch-cloths add to the burden. Begging letters, for numbers, take the second place in the President's mail. They come from every part of the land, and relate to every possible subject. There are appeals to aid the writer to get an education, or to pay off a mortgage, or to buy a piano or a pony ; and no form of public appeal is absent — to aid the btiild- ing of churches, to endow schools, to build monu- 164 THIS COUNTRY OF OTTKS ments, and to aid every other good purpose for whicli men or women or children associate them- selves. On one day the requests for Begging letters. . - i. i ■ j.1. specific sums aggregated nine thou- sand dollars. These appeals are unavailing, in the nature of things, and self-respect ought to restrain the practice. The President cannot aid every good cause or every needy person. He cannot know whether the person appealing to him is worthy, if he appeals in his own behalf, or properly accred- ited, if he appeals for a cause. A class of " space-writers " makes an especial mark of the President. He is invited to express himself theoretically or to give his experience upon an endless variety of subjects. What laborious in- trospection is invoked by the question : " What was the greatest thought that ever entered your mind?" Many people greatly enlarge the powers of the President, and invoke his interference and protec- tion in all their troubles. " I have six little chil- dren and they want to throw me out of my house. I have nowhere to go. I want protection," was the appeal by wire of a North Carolina woman. An- other begs the President to pass a law " prohibit- ing anybody from hiring a prodagal (sic) boy." How a letter to the President should be ad- dressed is a question that perplexes many an in- THE PKESIDENT 165 telligent person, and has had many amusing solu- tions. Sometimes he is addressed by letter writers as plain "Mister," sometimes as ■^ Proper addiess. "His Majesty," or " His Lordship," and very often as " His Excellency." " The High Government at Washington " was thought to be an appropriate address by one writing from Aus- tria ; and a letter addressed to the " White OfQce " was rightly assigned by the intelligent mail clerk to the White House. The oflScial title of the head of the Executive Department is " The President.'' All propositions to add adorning but superfluous titles were rejected in Washington's time. The correct letter address is, therefore, "To the Presi- dent," and the oral address, " Mr. President." The President does not carry his title with him when he retires from office, as the judicial and military gentlemen do. There may o„,y „„^ p^^^j. be many Judges and Majors, but ^"°'-^°'™"*™'- there cannot be two Presidents. A gentleman who had been President, returning from a hunting expedition in a costume embodying no hint of the dignified position he had held, was approached by an impulsive fellow-traveller with the question: "Is this President ? " " No," said the gentle- man addressed ; " I am Mr. , of ." The countenance of the questioner fell as she begged pardon and returned to her seat. But the rather 166 THIS COUNTRY OF OURS boisterous laughter of some young folks, who had taken in the situation, slowly revealed it to her, and she came forward again to say : " Well, I want to shake hands with you even if you ain't Presi- dent now." Letters can be turned over to clerks, but callers are not to be so disposed of. Unless the President Business recep- is Very early, he will find some callers tions— only five minutes wanted, waiting lor him as he passes through the Cabinet room to his office. The rules, which are displayed on large cards, announce that the President will receive persons having business with him between certain hours, usually from 9:30 or 10 A. M. until 1 p. M., except on Mondays ; but the hours and the exception are very little regarded, and it is a rare piece of good fortune during the early months of an administration if the President gets one wholly uninterrupted hour at his desk each day. His time is so broken into bits that he is often driven to late night work, or to set up a desk in his bedroom, when preparing a message or other paper requiring unbroken attention. Thought- lessness is the root of all this. " I only want five minutes " ; and if he were the only one it could be spared ; but his double is at his heels, and the urgent public business is postponed or done at night with a jaded mind. It may be said that untimely visitors should be excluded, and so they THE PRESIDENT 167 should ; but tlioughtfulness on their part would be a cure without a smart. The President's messenger brings in the cards or announces orally the names of the visitors, and they are admitted singly, or all are ushered, as they arrive, into the President's ofBce, as he may direct. He usually receives them standing near his desk — especially when a number are present — and in the order of their official sta- tion, if they are public officers. Those not engaged with the President stand back, and the conversa- tion with each, as he is received, is conducted in a low tone that secures some degree of privacy. There are many Senators and Representatives, often ac- companied by friends or constituents, either singly or in delegations, sometimes simply to pay their respects, but more often to urge some appoint- ment. In the latter case the President listens, and seems to the applicant to be painfully reticent. He concludes the brief interview by ,p^g saying : " Please jfile your papers in °^<^-'^^^'^- the proper department, and I will consider the matter." This incident is repeated over and over — perhaps a hundred times in the course of a morning. The business has not been much ad- vanced, if at all. The appointment may not come before the President for action for several months, and in the nature of things he can recall little, if 168 THIS COTTKTEY OF OUKS anything, of what was said so long before. He has been told that Mr. A , an applicant for the post-office at , is a dissipated, disreputable man, and that Mr. B , who wants the same place, possesses all of the virtues, and talents of the highest order ; but if the President depended upon his memory these vices and virtues might be wrongly assigned. All this is explained over and over again to applicants and their friends, but the feehng that something is, or may be, gained by a personal interview prevails, and for the first year and a half of an administration the President spends from four to six hours of each day talking about things he will not have to act upon for months, while the things that ought to be done presently are hurtfully postponed. Generally, in the case of home places, the application is for a particular office, but in very many cases, especially as to consular places, the application is general — for a place to be hunted up by the President and fitted to the applicant. Such cases are particularly trying. If the President could make up and publish an appointment docket, and notify all persons having anything to say in a particular case to " draw near " on a fixed day, it would result in a great saving of time ail around, and a great saving of money to the applicants, who could remain at home THE PRESIDENT 169 until summoned to appear. No papers should be received after the submission of the case, and mo- tions for a rehearing and for a new trial should be barred. When the coming of the lunch hour has brought the morning reception to an end, and the Presi- dent is again at his desk, one of the Afternoons ™tii Cabinet officers appears by appoint- <^''''™«' officers. ment, accompanied by a messenger with an arm- ful or a basketful of papers — chiefly made up of petitions and letters relating to appointments- Each case has been briefed and jacketed, and one by one they are presented, the Secretary adding such information as he has, outside the papers. The conclusions reached are noted — to appoint a particular person, or to prosecute a further inquiry. The Postmaster-General brings a large clothes- basketful of papers, and an adjournment to the long Cabinet table is necessary in order to display them. He takes up the papers relating to a post- office and briefly states the case. If the case is decided he fills in the blank on the jacket, " Ap- point ," the President affixes his initials, and the package is thrown back into the basket. A whole afternoon is often consumed in this way. But the conferences' with the heads of depart- ments are by no means limited to the matter of appointments. All large matters, and many small 170 THIS COUNTRY OF OUKS ones where controversies have arisen, are the sub- jects of consultation. The President has a real connection with each department, and is fully in- formed as to the plans of the Secretary. It is almost always the Secretary who asks for the con- sultation. If the matter is difficult, he wants counsel ; if the decision is likely to evoke opposi- tion, he wiU need support. If there is no appointment with a Cabinet officer, or with some other official who has asked for a Desk work-bills Special interview, the President takes and commisBionB. ^^ ^j^g ^^^^ ^^^^ J^Jg ^^^-^^ Theve may be a hundred commissions waiting for his signature. The messenger comes in, takes the sheets as they are signed, and spreads them about on the desk or on the floor to dry ; sometimes the room is carpeted with them. Next a pile of bills passed by Congress and submitted for his approval appeals to him, and one by one they are taken up and read. Usually the reports of the Committees of the House and Senate that reported the bills are attached to them, and also the report of the head of the department to which the proposed legislation relates. These are examined, and, if no objection is found, the President writes, " Ap- proved," with the date, and affixes his signature. If he thinks the bill should be vetoed it is laid aside — until he can prepare the veto message. THE PEESIDENT 171 But the desk is not yet cleared. Here are from five to twenty applications for pardon, and for the remission of forfeited recognizances. Pardons— Eemis- a e 1 11 Bions — Marshals' borne oi the cases are small as to accounts. bulk, and small as to the penalties from which relief is sought. If a bond in the sum of fifty dol- lars for the appearance of a person charged with some petty offence against the United States is for- feited, only the President's signature can relieve the property of the surety from the lien. Many of these cases are of ancient origin, and the Hen is only revealed when the title-searcher prepares an abstract as the basis of a sale or a loan. These cases, like pardon cases, come through the Depart- ment of Justice, accompanied by a favorable or an unfavorable recommendation from the Attorney- General. But the President must examine the papers sufficiently to have at least a general idea of the case, for the act and the responsibility are his. But there are many cases of great bulk, in- volving long terms of imprisonment, and not a few where the death penalty has been pronounced. These involve the conscientious examination of hundreds of pages of evidence, affidavits, and peti- tions. When all of these cases have been decided and the decision properly endorsed and signed, the President has yet another class of papers from the Department of Justice to be disposed of. 172 THIS COUNTEY OF OURS These are the claims of United States Marshals for the allowance of extraordinary expenses incurred by them — in pursuing a mail robber or other criminal, and like matters. The claim may be for no more than ten dollars — they are usually small — but it cannot be paid until the President has approved it. The court has approved it upon a presenta- tion of the vouchers, and the Attorney-General has endorsed his approval ; but this is only pre- liminary and does not authorize its payment. The examination by the President is more or less par- ticular, but there is always some examination. The Interior Department has sent to the deslt some papers that make the President realize that The "Great ^® ^^ ^^^ Only in Indian parlance, Father." but in fact, the " Great Father." An Indian, to whom an allotment of land has been made, desires to sell a part of it, or to exchange it for another tract. His petition to the local court sets out his case, and the court finds that it would be to his interest to make the sale or exchange, but the approval of the " Great Father " must be endorsed upon the deed before it can take efi'ect. In one case the paper that found its sluggish way through the Court, the Indian Office, and the office of the Secretary of the Interior, was the license of an Indian to a white man to take a few perches of stone from the land of the former. Again, the THE PRESIDENT 173 " Great Father '' may be called upon to approve an order allowing a tribe to market some down timber on the reservation, or to consider the ad- visability of allowing certain of his red children to travel with a show. The War and Navy Departments have possibly each contributed a court-martial record — a great manuscript volume — from the pages of which the President is to learn whether the charges have been satisfactorily proved, and whether there are any extenuating cir- cumstances that will justify him in saving the cul- prit from the sentence of dismissal from the ser- vice which has been pronounced upon him. The day would not be a typical one without a call from one or more newspaper men. For rou- tine business items, and for social J 1 -.i, j.1. Newspapermen. news, the reporters deal with the Private Secretary, but when there are rumors of important public transactions — and such rumors are perennial — some of the more prominent of the newspaper men expect to have a few moments with the President. With some of these — gentle- men who have become known to him as men who have not placed their personal honor in the keep- ing of any newspaper proprietor or managing edi- tor, but hold it in estimation and in their own cus- tody — the President sometimes talks with a good 174 THIS COUNTRY OF OUES deal of freedom. Of course, confidential things are not disclosed ; he does not give an interview, and is not quoted ; but erroneous impressions of what has been done or is in contemplation are often corrected. There are many men of fine ability and of the highest personal character among the newspaper writers at Washington. The President's popular receptions begin the next day after his inauguration, and are continued PubUc recep- for a good many days without much ™g- regard to hours. When the great East Eoom fills up he goes down and takes his station near the door of exit. The head usher in- troduces some who are known or who make their names known to him, but generally the visitors make known their own names to the President, or pass with a hand-shake without any introduction — often at the rate of forty or fifty to the minute. In the first three weeks of an administration the President shakes hands with from forty to sixty thousand persons. The physical drain of this is very great, and if the President is not an instruct- ed hand-shaker a lame arm and a swollen hand soon result. This may be largely, or entirely, avoided by using President Hayes's method — take the hand extended to you and grip it before your hand is gripped. It is the passive hand that gets hurt. THE PRESIDENT 175 When the inaugural visitors have disappeared these popular East Room receptions are brought into order and occur usually three times a week, at one o'clock. It has been suggested that a bow should be substituted for the hand-shake; but it would be quite as admissible to suggest a re- vision of the Declaration of Independence. The interest which multitudes attach to a hand-shake with the President is so great that people will en- dure the greatest discomfort and not a little peril to life or limb to attain it. These are not the office-seekers, but the unselfish, honest-hearted, pa- triotic people whose " God bless you " is a prayer and a benediction. They come to Washington for the inauguration, and later with visiting excur- sions, but they are mostly to be found near their own homes. They come out to meet the Presi- dent when he takes a journey, and his contact with them, and their affectionate interest in him, revive his courage and elevate his purposes. Mr. Lincoln is said to have called these popular recep- tions "his public opinion baths." How the President should conduct himself in social matters was a question that even the press- ing and important work of organizing sodai observ- anceB — Washing- the Government could not exclude ton's qnestions. from the early consideration of Washington. Mc- Master says : " While the House was busy debat- 176 THIS COUNTRY OF OURS ing by what name the President should be called, Washington was troubled to know in what man- ner he should behave." To solve his difficulties he framed a set of questions and submitted them to Hamilton and Adams. " Should he keep open house after the manner of the Presidents of Con- gress ; or would it be enough to give a feast on such great days as the Fourth of July, the thirtieth of November, and the fourth of March ? "Would one day in the week be stifficient to receive visits of compliment ? What would be said if he were sometimes to be seen at quiet tea-parties ? When Congress adjourned, should he make a tour ? " Mr. Adams thought that two receptions each week should be held ; that persons desiring to see the President should apply through the Secretary of State ; that the nature of the business should be stated to a " gentleman in waiting," who should decide whether the visitor should be received ; that the time for such visits should be limited to one hour, or two at the most; that his private life should be very much at his own discretion, but that in his official character " he should have no intercourse with society but upon public business or at his levees." Hamilton thought there should be one reception each week, at which the Presi- dent should remain a half hour ; that he should accept no invitations, and give formal entertain- THE PRESIDENT 177 ments not more than four times a year ; that the heads of Departments, and some descriptions of foreign Ministers and Members of the Senate should have access to the President on public business. This latter for the reasons that in Europe peers of the realm had access to the king, and that it " will be satisfactory to the people to know that there is some body of men in the State who have a right of continual communication with the President. It will be considered a safeguard against secret combinations to deceive him." The grounds of the Executive Mansion are now practically a public park ; for, though enclosed by high iron fences, the gates stand ^^^ gronnds- open, save that the gates to the "op^vacy. grounds south of the house are closed and locked at night. The driveway in front is a thoroughfare, and the walks are used as freely as the sidewalks of the city. Until screens were placed in the win- dows of the private dining-room it was not an unusual incident for a carriage to stop in front of them while the occupants took a gTatiiied view of the President and his family at their breakfast or lunch. Some of the department clerks once re- monstrated against the closing of the gates to the grounds south of the house because the walk around the ellipse was a little longer. There is not a square foot of ground, not a bench nor a 13 178 THIS COUNTRY OF OTJKS shade tree, that the President or his f amUy can use in privacy. The Executive Mansion is open to visitors from 10 A.M. to 2 P.M. — the large East Eoom or parlor Most of the to every well-behaved person without Dickens's visit. any card or introduction. The other three parlors, called the Green, Blue, and Eed Parlors, and the conservatories, are shown to those who bring a card from a Senator or Member, or are otherwise introduced. The private dining- room is the only room on the first floor of which the President's family has an exclusive use. Charles Dickens, in his " American Notes," gives an interesting but exaggerated account of the free- dom of the Executive Mansion in 1842. He says : We entered a large hall, and having twice or thi'ice rung a bell which nobody answered, walked without further ceremony through the rooms on the ground floor, as divers other gentlemen (mostly with their hats on and their hands in their pockets) were doing very leisurely. Some of these had ladies with them, to whom they were showing the premises; others were lounging on the chairs and sofas ; others, in a perfect state of ex- haustion from listlessness, were yawning drearily. The greater portion of this assemblage were rather asserting their supremacy than doing anything else, as they had no particular business there, that anybody knew of. A few were closely eying the movables, as if to make quite sure that the President (who was far from popular) had THE PRESIDENT 179 not made away with any of the furniture, or sold the fixtures for his private benefit. Tliis is only an outline of a business day and its surroundings, but it will serve, perhaps, to show that the life of the President is a very busy one. What contrariety and what monotony ! One sig- nature involves the peace of the na- Monotony— a tion, another its financial policy, an- ^""^' other the life of a man, and the next the payment of ten dollars from the National Treasury. What monotony in the appeals for office ! During the war an old contraband, who found employment in the camp of one of our regiments, improvised a banjo from the rim of a cheese-box and an old parchment. The banjo had only one string, and his song only four words, but the picking and the song had the longevity if not the melody of the brook. Hired by some mischievous fellows, the musician would seat himself near the Colonel's tent and begin a serenade more trying to the nerves, more hostile to sleep, than bursting shells. The President cannot call the officer of the guard. The applicants for office are generally respect- able and worthy men, and many of them are the personal friends of the President. They are en- titled to a respectful and kindly hearing, but at the end of one hundred days of this work the Presi- dent should not be judged too harshly if he shows 180 THIS COUNTRY OF OURS a little wear, a little loss of effusiveness, and even a hunted expression in his eyes. It is said that when a friend spoke to Mr. Lincoln of the wear and weariness of so much hand-shaking he repUed that " the tug at the hand was much easier to bear than that upon his heartstrings for all manner of favors beyond his power to grant;" and at an- other time he said that " it sometimes seemed as if every visitor darted at him, and, with thumb and finger, carried off a portion of his vitality." Few Presidents retain the capacity to catch the present, but well-covered, humor of such inter- course. A fresher mind would at least note the transformations from tall to short, and from thick to thin, of the man who first named the President for his high office. CHAPTEE XI THE STATE DEPARTMENT Eight Executivb Departments — The Cabiket Table — Origin OP THE Oppioe — Under the Confederation— Under the Constitdtion — Office Force and Methods — Foreign Cor- respondence — Consultations with the President^Pres- ENTATiON OP Ministers— The Consular Service — Should Leave Politics at Home. The executive and administrative business of the Government is transacted through eight exec- utive departments. The heads of sxecntive de- ■^ . partmentB — the these departments constitute the Cab- cabinet table. inet, and they take rank at the Cabinet table in the following order : On the right of the President is the Secretary of State ; on his left the Secretary of the Treasury ; next to the Secretary of State is the Secretary of War, and opposite to him the Attorney-General. Next to the Secretary of War is the Postmaster-General, and opposite to him the Secretary of the Navy. Until the creation of the Department of Agriculture the Secretary of the Interior had the foot of the table to himself ; now he shares it with the head of the new depart- ment, though the breadth of the table is hardly sufficient to receive two seats. The " cabinet- 181 182 THIS COUNTRY OF OURS maker " who designed the table did not allow for the growth of the official family. Already a far- ther addition is being urged — a Secretary of Com- merce and Manufactures — and if he comes into being a new table must be provided. Perhaps an extension-table may be the th'ing. The Secretary of State is popularly called the head of the Cabinet ; and in affairs of ceremony The head of the ^^^ ^^ ^^^ Order of succession to the Cabinet. presidency — in the event of the death of the President and Vice-President — is such. He is often the ablest and most experienced statesman in the Cabinet, and this personal element, if pres- ent, gives him a natural pre-eminence among his associated advisers at the Cabinet table. But in no other sense is he a head as to any department save his own. He does not select his associates, may not even be consulted as to their selection, nor can he direct anything in their departments. The Secretary of State has been often selected from the list of those who were competitors of the Secretary of state President for the presidential nom- — Selection — Mr. . . Seward. luatiou. In the case of Mr. Lincoln, whose great powers were little understood by the country when he came to the presidency, the choice of his chief competitor, Mr. Seward, for Secretary of State was a very -wise and a very brave act. The choice gave confidence to those THE STATE DEPARTMENT 183 anxious patriots — perhaps a majority of the loyal people, certainly so in the Eastern States — who had yet to learn that this plain man from the West was immatched in wisdom, courage, and in- tellectual force. It was a brave act, because Mr. Lincoln could not fail to know that for a time Mr. Seward would overshadow him in the popular es- timation ; and a wise one because Mr. Seward was in the highest degree qualified for the great and delicate duties of the office. A man who is en- dowed for the presidency will know how to be President, in fact as well as in name, without any fussy self-assertion. The American Colonies, when serious differences with the mother country developed, found it nec- essary to have representatives in London, to pre- sent and support their petitions for the redress of grievances, to observe and oppose threatened parliamentary action, and to keep the Colonial assemblies advised as to all happenings that affected the interests of the Colonies. These "agents," as they were called, were The colonial primarily charged with the commer- cial interests of the Colonies. It became a sort of consolidated diplomatic and consular service. Franklin served several of the Colonies in this capacity. The First Congress, in 1774, made use of these Colonial agents in the presentation of an 184 THIS COUNTRT OF OURS address to the King. In 1775 Congress constituted from its members a committee to conduct the for- Poreign Affairs eigu Correspondence, called the " Se- nnder the Confed- ° . „ eratdon. cret Committee of Correspondence. A little later a " Committee of Foreign Affairs " was organized. All foreign correspondence was conducted through these and other committees, or by the direct action of Congress. The inadequacy and inefficiency of this method — if that can be called a method which is certain and methodical in nothing — became so apparent that in January, 1781, Congress inaugurated measures for the es- tablishment of a Department of Foreign Affairs, and in the following August Robert E. Living- ston, of New York, was chosen as the first " Sec- retary for Foreign Affairs." It must be recalled that the Congress then exercised aU executive powers, and so the rules of the new office required the Secretary to lay all matters before Congress, and to " transmit such communications as Congress shall direct." He was permitted to attend Con- gress "that he may be better informed of the affairs of the United States and have an opportu- nity of explaining his reports." Mr. Livingston took office September 23, 1781. After a brief exercise of the office he submitted to Congress some suggestions for the better conduct of the business, and in February, 1782, Congress adopted THE STATE DEPARTMENT 185 resolutions providing, among other things, that the official designation of the Secretary should be " Secretary of the United States of America for the Department of Foreign Affairs ; " that the letters of the Secretary to the Ministers of the United States and to the Ministers of foreign powers, relating to treaties or other great national subjects, should be submitted to and receive the approbation of Congress before they were sent; that plans of treaties, instructions to our repre- sentatives, and other like papers, the substance of which had been approved by Congress, should, after being reduced to form, be again submitted to the opinion of Congress. The office was not well designated. The Secretary was rather the " Sec- retary of Congress" than the "Secretary of the United States of America ; " but the substitution of a Secretary for the committees that before had our foreign affairs in charge was a step in the direction of the establishment of an Executive De- partment of the Government. In June, 1783, Mr. Livingston resigned to ac- cept the office of Chancellor of the State of New York. We do not wonder that with LiTing8ton--Jay — Inadequate sal- a salary of only $4,000 he should ary. have said he was compelled to draw upon his private fortune to support the office. That has been the fate of all, or practically aU, of his sue- 186 THIS COXJNTET OF OURS cessors ; for, while the salary of a cabinet oiEcer has been for many years just twice that received by Mr. Livingston, the expenditures necessary to maintain the social position which custom has assigned to the oflSce are greatly more than the salary. A Secretary of State who maintains an establishment and en- tertains the foreign Ministers and the general pub- lic with the generous hospitality now expected of him, will owe much gratitude to his major-domo if, at the end of a four-years' term, he has not con- tributed from his private fortune to the support of his office a sum much greater than the salary he has received. This is an evil, for it may happen that the man best fitted for the office may refuse it — ^or leave it as Livingston did — rather than sacrifice a small private fortune to social demands. Dinners were, in Livingston's time, as now, diplomatic agencies, as well as imperative social events. John Jay was Livingston's successor in office, and entered upon his duties December 21, 1784. He continued in office — though never reappointed by Washington — for some time after the adoption of the Constitution, and though commissioned as Chief-Justice of the Supreme Court, September 26, 1789, discharged his duties in the State Department until February, 1790, when Thomas Jefferson, who had been appointed Secretary of State while in Europe, returned and took the office. THE STATE DEPARTMENT 187 The first act under tlie Constitution establishing the department was approved July 27, 1789. It was called "The Department of For- The department . jv. . „ , .. • ■ 1 «. ™^er the Consti- eign Anairs, and its principal ofbcer tution. "The Secretary for the Department of Foreign Affairs." On September 15th following another act was passed changing the designation of the de- partment to "The Department of State," and that of its principal officer to " The Secretary of State." It seems that the dropping of the word " foreign " from the designation of the department was sig- nificant of a purpose to charge the Secretary with some domestic duties and powers. For we find that legislation followed very soon Many domestic providing for the filing of applica- '^""^^• tions for patents in the State Department, and the keeping of the patent records therein. The de- partment was also made the repository for copy- righted boots, had the supervision of the census and of the publication of the census reports, and in a measure the supervision of the Territories. All of these domestic functions were, in 1849, trans- ferred to the Interior Department. The matter of copyrights, at a later period, was transferred from the Interior Department to the Librarian of Con- gress. The office force of the Secretary of State consists of three assistant secretaries, one chief clerk, six 188 THIS COTJNTEY OF OURS chiefs of bureaus, one translator, one private sec- retary to the Secretary, fifty-seven clerks of the various classes, three despatch agents The office force. , .^ , i -vt -it- i — one at London, one at JNew xork, and one at Saii Francisco — and four messengers. Forty-five laborers, watchmen, firemen, elevator men, and charwomen, in addition, make a total office force of about one hundred and twenty-two ; the aggregate of their annual salaries being (1896) 1144,980. A solicitor is assigned to the depart- ment, as its law officer, from the Department of Justice. A bureau is, in American usage, a subordinate department, to which particular matters are as- The bnreans— signed with a view to a prompt and methods o£ bnsi- . , -, • • , , • mi nesB. orderly administration. The names of the bureaus in the State Department will suffi- ciently show, in a general way, how the work of the department is conducted. They are the Bureau of Indexes and Archives, the Diplomatic Bureau, the Consular Bureau, the Bureau of Bolls and Li- brary, the Bureau of Statistics, and the Bureau of Accounts. When it will farther facilitate the work divisions are organized, over each of which there is a division chief. Thus in the Diplomatic Bu- reau, to Division A is assigned the correspondence with specified nations ; to Division B that with certain others, and so on. This correspondence THE STATE DEPARTMENT 189 goes first to the Bureau of Indexes and Archives, where it is opened and an index of it made ; then to the chief clerk, who sends it either to the Sec- retary or to one of the assistant secretaries, or di- rectly to the Diplomatic Bureau, as the nature of it requires. The Diplomatic Bureau either origi- nates the necessary answers or prepares them under instructions. These answers are sent to the Sec- retary, and, if approved by him, are signed and sent to the Bureau of Indexes and Archives to be indexed, and thence again to the Diplomatic Bu- reau to be mailed. This is what is called "red tape ; " it is, in fact, necessary method, for it is essential that the action of the department shall be recorded, and that an index shall furnish a ready reference to such action. Perhaps this sample of routine is enough — more might be tiresome. Important despatches, relating to international differences or declaring a national policy, are pre- pared by the Secretary, are some- consuitationB times the subject of a Cabinet dis- Zr^^ff^'^S'/prac- cussion, and are always the subject *^' of a conference with the President. That this was so from the beginning appears from such notes as these addressed by Mr. Jefferson (Secretary of State) to Washington : Mr. Jefferson has the honour of enelosmg for the pe- rusal of the President, rough drafts of the letters he sup- 190 THIS COUNTRY OF OURS poses it proper to send to the court of France on the present occasion. He will have that of waiting on him in person immediately to make any changes in them the President will be so good as to direct, and to communi- cate to him two letters just received from Mr. Short (chargi d'affaires to France). And, again : He sends some letters for the President's perusal, pray- ing him to alter freely anything in them which he thinks may need it. It may happen that the President will himself prepare a draft of the proposed despatch, and that PreBident eome- after a Consultation this may be ac- times drafts de- n i i (~i Bpatch. cepted by the Secretary ; or the de- spatch sent may be a modification of the draft pro- posed by one or the other. The note is always signed by the Secretary, and no record discloses its actual composer. So, some writings signed by the President, and ceremonious speeches read by him, are not the product of his pen. Such are not infrequently, as has been said, the formal re- sponses made by the President on the presentation of foreign Ministers. The State Department, in Addresses to ^^iticipation of the presentation, hav- Tfank^s^g^ivYnl ^"^ ^ ^'^P^ °^ *^® Minister's proposed proclamations. address, frames what, in the opinion of the Secretary or of one of the assistant secre- taries, would be a suitable response, and the draft, THE STATE DEPARTMENT 191 or a modification of it, is often used by the Presi- dent. When the President wishes to say some- thing that is not formal he rejects this draft and writes his own address. So, too, it is the practice of the State Department to send to the President drafts of his Thanksgiving proclamations. My memory is that two of the four Thanksgiving proc- lamations issued by me were written in the State Department and only slightly modified by me, and that the other two were written wholly by me. So, also, the congratulatory letters signed by the President, in response to the official announce- ment of the birth of some prince or Eoyai infentB— , J, .,. congratulatory let- prmcess to one ot the roj^al lamiiies, ters. is a State Department composition. Whenever a prince or princess is born the head of the foreign office at once notifies all other governments of the happy event. All this is natural as between mon- archs ; for it is important to have the royalty of the babe officially certified, and the list is useful when a prince or princess is in search of a wife or husband. But it seems almost incongruous to notify a Eepublican Government like ours of such an event. The form in use for an answer to such communications was possibly prepared by Jeffer- son. It assures the happy parents of the great joy felt by the President and by the people of the United States over the event. The language in 192 THIS COUNTRY OF OUKS use was so tropical that when such a congratula- tory letter was presented for his signature one of our Presidents felt compelled to use the blue pen- cil with vigor. Perhaps if we were to notify " our great and good friends," the kings and queens of the earth, of the birth of every " heir possible " to the presidency, they would break off the corre- spondence ! The ceremonies observed in receiving the Am- bassador or Minister of a foreign country are dig- Eeceptionofthe nified, though quite simple. France first foreign Min- t i ister. sent the first diplomatic representa- tive to this country (1778) in the person of M. Gerard. He came as Minister Plenipotentiary and Consul-General, and Congress at once consti- tuted a committee to arrange an order of cere- monies for his reception. Some of the orders pre- scribed for this first reception are still used. The address of the Minister was to be presented to Congress in advance, as otherwise there could not be an immediate response, the President of Con- gress not being authorized to speak until Congress had taken action on the address. The full force of this reason does not apply to a reception by the President of the United States ; but it is stUl ap- propriate and measurably necessary that the Pres- ident should see the address in advance, especially as the rule prescribed in 1778, and ever since fol- THE STATE DEPARTMENT 193 lowed, allows the address of the Minister to be given in the language of his country — with which the President may be wholly unacquainted. M. Gerard was escorted to the hall of Congress by two members of that body. Now the Secretary of State escorts the Minister. Then the Minister might attend the sessions of Congress and confer with that body in Committee of the Whole. Now the Minister confers with the Secretary of State, either on a particular day of the week, called " Diplomatic Day," or at other times especially ap- pointed. After the reception the direct intercourse between the President and a foreign Minister is wholly social — all business being transacted with or through the Secretary of State. The President would deny and even resent any attempt on the part of a foreign representative to communicate directly with him. But it has happened that the President, at the request of the Secretary of State, has met a foreign Minister, and discussed with him an important international controversy which seemed to be blocked. A question of social precedence that has since greatly shaken Washington society was settled for the time by the rules adopted by How presented „ . ,„rro • 1 now— a social Congress in 1778, m these words : question. "After the audience the members of Congress shall be first visited by the Minister Plenipoten- 13 194 THIS COUNTEY OF OUES tiary or Envoy." Then, however, Congress was the body that received the Minister's credentials and conducted all business with him. The cere- mony observed in receiving a Minister now is briefly this : On a day appointed by the President the new Minister drives with his secretaries and attaches to the State Department, and is thence escorted by the Secretary of State to the Executive Mansion and conducted to the Blue Koom. The Secretary then goes to the President's office and advises him that the Minister is in waiting. The President, on the arm of the Secretary, then pro- ceeds to the Blue Boom, and, the Minister and his suite standing, the Secretary introduces the Min- ister, who, after bowing, proceeds to read his ad- dress, and at the proper time hands to the Presi- dent his letters of credence, which are immediately passed to the Secretary of State. "When the ad- dress of the Minister has been read the President reads his reply, and after a few moments spent in informal conversation retires with the Secretary, who, returning, conducts the Minister from the Executive Mansion. Until 1893 the highest rank given by our laws to our representatives at the great European courts AmbasBadors """^^ *^^^* °* Envoy Extraordinary and since 1893. Minister Plenipotentiary; and the diplomatic usage forbade the giving of a higher THE STATE DEPARTMENT 195 rank to their representatives at our capital. No foreign representative at Washington felt the in- convenience of this system, for he held as high a rank as any other foreign representative at our capital, and so was not inconvenienced in the transaction of business, nor subordinated at social functions. But our Minister at London, for in- stance, found in the diplomatic corps there Ambas- sadors, and some of them from very small powers ; and these, on social occasions, and in the order of their reception for the transaction of business at the Foreign Office, took precedence of our Minister, because of their superior diplomatic rank. This was not infrequently the occasion of very consider- able mortification to our Minister and of some detriment to the business in his charge. In 1893 the rank of our representatives at the courts of France, Germany, Great Britain, Eussia, and Italy was raised to that of Ambassador ; and at once the representatives of those powers at Washington were raised to the same grade. The correspondence between our State Depart- ment and the foreign office of another nation may be conducted in either of two ways : How correepond- The Secretary of State may use the ence ib conducted. Ambassador or Minister of the foreign country at Washington as the medium of communication, delivering his notes to him to be communicated to 196 THIS COUNTRY OF OURS his home office ; or he may use our Minister at the foreign court to conduct the correspondence under instructions. The government that has the initia- tive in the controversy is very apt to conduct the negotiations at its own capital, for greater con- venience in consulting with the Executive, and for Salaries and greater Certainty in stating its case. expenses. q^j, ^.mbassadors to the four great Powers of Europe each receives an annual salary of $17,500, and our Ambassador to Italy $10,000, Out of his salary the Ambassador must provide his own residence and meet all official and social de- mands. Several of the Powers have provided houses for their legations at Washington, but this Government has never thus provided for any of its representatives abroad. The diplomatic service has sometimes been assailed in Congress as a purely ornamental one ; and while the evident necessity of maintaining the service is such as ought to save it from the destructionists, it is quite true that our diplomatic relations with some of the Powers are more ceremonious than practical. But we must be equipped for emergencies, and every now and then, even at the smallest and most re- mote courts, there is a critical need of an Amer- ican representative to protect American citizens or American interests. The consular service is the business side of our THE STATE DEPARTMENT 197 foreign establishment. There are more than twelve hundred persons employed in this service. They are located in the important commer- ,j^^ consular ser- cial cities and towns of the world, vice-duties, and are described as consuls-general, consuls, com- mercial agents, interpreters, marshals, and clerks. The duties of a consul are multifarious. He is the protector and guardian of American commerce ; provides for destitute American sailors and sends them home ; takes charge of the effects of Ameri- can citizens dying in his jurisdiction and having no legal representative; receives the declarations or protests of our citizens in any matter affecting their rights ; keeps a record of the arrival and de- parture of American ships and of their cargoes, and looks after vessels wrecked ; reports any new inventions or improvements in manufacturing proc- esses that he may observe, and all useful infor- mation relating to manufactures, population, scien- tific discoveries, or progress in the useful arts, and all events or facts that may affect the trade of the United States, and authenticates invoices and statements of the market value of merchandise to be shipped to the United States. Every consulate is a commercial outpost ; and if the service could be, given permanence of tenure, and a corps of men of competent equipment, it would become a power- ful agency in extending our commerce. 198 THIS COUNTKY OF OURS The need of a better consular service has been getting a strong hold upon the public mind. The Better service practice has been to make frequent neefled. changes in these offices — indeed, an almost complete change upon the coming in of an administration of a different party. An acquaint- ance with the language of the country in which he serves is so important as to be nearly indispen- sable to the full discharge of a consul's duties. For he should be able to go into the shops aud offices of commerce, familiarize himself with all new processes, and discover any openings that may present themselves for the extension of our trade. It is remarked that changes in the home admin- istration in other countries, such as England and France, do not involve changes in the ambassadors or ministers or consuls, as they do with us. The Eng- lish Ambassador at Washington holds on wheth- er the Liberals or the Tories are in power. He represents his country, not a party, and carries out his instructions from the home Government loyally. Ambassadors "^^ ^^ never heard to make speeches stonid leave thii? attacking the policy of the governing politics at liome. i -j.* ■ ■ i.- i party — or criticising his own people. Perhaps one of the chief difficulties in the way of our getting a permanent diplomatic and consular service grows out of the fact that the tariff ques- THE STATE DEPARTMENT 199 tion is one that is always acute in our politics, and the reports of our consuls and the speeches of our ministers too often express the views held by them upon this question. We cannot have a permanent diplomatic and consular service until we can find diplomats and consuls who will leave their party politics at home. If these are to be aired or exer- cised abroad, then it follows that they must be in harmony with the party in power at home. There is no other way as to officers whose work and ex- pressions affect public or political policies — how- ever much we may wish there were. The Secretary of State is the custodian of " The Great Seal of the United States of America." When the civil list became so large The ■• Great Seal " and its that it was impracticable to use the nse. Great Seal to certify the President's signature to all commissions, Congress authorized the use of the seals of the Post-office Department, of the Interior Department, and of the Department of Justice re- spectively, in certifying the commissions of all officers under those departments. The law of 1789 provides " that the said Seal shall not be affixed to any commission before the same shall have been signed by the President of the United States, nor to any instrument or act without the special warrant of the President therefor." 200 THIS COUNTRY OF OUKS A description of the devices proposed, or of the Seal as adopted, cannot be fully understood by those unversed in heraldry. The following was the interpretation of the Seal as adopted by Con- gress : The Escutcheon is composed of the Chief and Pale, the two most honorable ordinaries. The pieces, paly, represent the several States all joined in one solid, com- pact entire, supporting a Chief, which unites the whole and represents Congress. The Motto alludes to this Union. The pales in the arms are kept closely united by the chief and the chief depends on that Union and the strength resulting from it for its support, to denote the confederacy of the United States of America and the preservation of their Union through Congress. The colors of the pales are those used in the flag of the United States of America ; White signifies purity and innocence, Eed, hardiness and valor, and Blue, the color of the Chief, signifies vigilance perseverance and justice. The Olive branch and arrows denote the power of peace and war which is exclusively vested in Congress. The Constellation denotes a new State taking its place and rank among other sovereign powers. The Escutcheon is borne on the breast of an American eagle without any other supporters, to denote that the United States ought to rely on their own Virtue. Reverse. The pyramid signifies Strength and Dura- tion : The Eye over it and the motto allude to the many signal interpositions of Providence in favor of the Amer- ican cause. The date underneath is that of the Declara- tion of Independence and the words under it signify the THE STATE DEPAKTMENT 201 beginning of the new American era, which commences from that date. The reverse, or pyramid side, of "The Great Seal of the United States of America " has never been cut. CHAPTER Xn THE TREASURY DEPARTMENT It 18 THE Steam-plant — Tkansactions Affect Monet Mar- ket — OuE Mixed Cukrenct System — Gold Redemption AND Reserve — Established under Constitution — Hamil- ton THE First Secretary — Organization op Department — Principal Officers and their Duties. The first need that confronted the Government under the Constitution was a revenue. Indepen- A public revenue ^^^^ national life is impossible with- eBsentiai. ^^^ ^^_ rpjjg security and convenience of the citizen come at a cost, and he must pay it. Taxes, a treasury, and a law authorizing the use of the public money for public purposes are pri- mary things. Without these the mails would choke the deposit boxes ; the courts would hold no terms, and criminals would be neither apprehended nor tried; all public officers would abandon their posts ; the unpaid and unfed soldiers would desert the colors ; the sailors would leave the decks of our smokeless war-ships ; the Indian tribes would collect their annuities in the old way from the defenceless settlers, and our Government would be like a great mill filled with perfect machinery, but without fuel or a fire-box. 302 THE TREASURY DEPARTMENT 203 The Treasury Department is the steam-plant from which all the other departments get their power. In the ordinary operations of Treasury the Government it is only a collecting Bteam-pWt and disbursing agency — collecting such taxes as Congress has authorized, and paying out the money as directed by law. It would be an ideal condition of things if the Treasury Department received each morning just the sum of money it had to pay out that day — no surplus money out of use in its vaults, no deficit to be met by loans. But things cannot be so nicely adjusted. Wars make burdens that a single generation cannot bear, and they must, in part, be put over upon other generations, by the sale of time bonds bearing interest. Out of the devices adopted to meet the great expenditure for the suppression of the Eebellion of 1861 it has come to pass that the Government furnishes, either directly or through the national banks, all of the money used by the people. The Treasury Department is now a great bank, and no longer a mere public collecting and disbursing agency. It prints paper money, pays it out for public uses, receives it in payment of cus- toms duties and internal taxes, and pays it out again for salaries, supplies, and public works. It is also required to redeem the greenbacks and treasury notes — to give coin in exchange for them if demanded. 204 THIS COUNTRY OF OURS It would be out of place here to discuss the money question. It is enough to say that ever Out currency sinco the resumption of specie pay- fi'Si!'^" ™^' ments, in 1879, the Treasury has paid gold for greenbacks when gold was demanded, and has redeemed, in the same way, the notes issued under the Sherman Law. The Secretary of the Treasury has never exercised the discretion given him to redeem the latter notes in silver — hold- ing that his discretion was limited to such a use of silver as would not destroy the parity of the gold and silver dollars, which the law says shall be maintained, and that the refusal to give the holder of these notes gold, when he demanded it, would destroy that parity. No one is bound to pay gold to the Government for any tax or other debt due to it. So that practically the situation is this: The Treasury holds itseU bound to give gold to everyone presenting a United States note, and has no way of compelling anyone to pay gold to it. Such gold as it gets comes from persons who choose to take paper money for gold deposited at the mints, assay offices, or sub-treasuries, or to pay in gold coin some Government tax. Formerly all duties upon imports were payable only in gold. Now when the gold reserve gets low it can only be restored by the sale of bonds, under the powers given to the Secretary in the legislation relating to THE TREASURY DEPARTMENT 205 the resumption of specie payments. This legisla- tion does not permit the sale of bonds payable in gold, and Congress has refused to give the Sec- retary power to sell a gold bond. The situation would be absurd if it were not so serious. The money operations of the Treasury Depart- ment are very large. For the fiscal year ending June 30, 1896, the receipts were operations affect $409,475,408.78, and the disburse- ''^'^"■ ments $434,678,654.48. The taking in and the paying out of such enormous sums must directly and strongly affect the money market, and so the general business of the country. And when the Treasury buys or sells bonds its influence on the market is greatly increased. If the revenues are largely in excess of expenditures the surplus is taken out of use in commerce and locked up in the Treasury vaults, and the money market is tightened. If the surplus is used to buy Govern- ment bonds not yet due the market is eased. The gold reserve, too, as it is diminished by exporta- tions of gold, or increased by bond sales, power- fully affects every business interest. What is the Treasury going to do ? is the query heard in every bank, and counting-room, and store. It is unfort- unate, I think, that this should be so — and the mending of existing conditions will be a task for the wisest and strongest statesmanship. 206 THIS COUNTRY OF OUKS But, while the Secretary of the Treasury has a large discretion in a few directions, and may by its Discretion of exercise largely influence the money ecretary. market, he is, in the main, conduct- ing a great bank on undeviating and unelastio rules, and with Congress for his board of directors. He is not chosen by the board, and is rather more often than not, out of harmony with it. The managers of the Bank of England may, by some small allowances in the way of interest or ex- change, draw gold to its vaults from New York; but if fifty dollars would suffice to hold fifty mill- ions of dollars of gold in the United States Treas- ury the Secretary could not expend that small sum. He must stand by until the gold is gone, and then sell bonds to bring it back. The result is that the banks and the brokers are able often to make play of the Treasury. A financial institu- tion whose board transacts its business in public and airs all its disagreements, is at a disadvantage. The finances of our country were, like its for- eign affairs, at the beginning, conducted by Con- Treasury De- grass through a committee — a method partment under confederadon. even less adapted to the keeping of money accounts than to diplomatic action. Accu- racy and safety in money matters require the ac- countability of one man as a treasurer, a system of auditing and book-keeping, and a permanent office. THE TEEASUKY DEPARTMENT 207 The office came first, and tlien a Comptroller, an Auditor, and two Chambers of Accounts were pro- vided by Congress. In February, 1779, the office of Secretary of the Treasury was created, but in the following July the system was changed and a Board of Treasury substituted. Two years later a Super- intendent of Finance was provided for, and after three years more Congress again returned to the system of a Treasury Board. Our fathers were ex- perimenting, and the truest and most creditable thing that we can say of them is that they profited by experience, and allowed the doctrine of evolution, as applied to civil institutions, to have its sure way. Those who, as Committeemen, Boards of Treas- ury, or Superintendents, had charge of our finances before the adoption of the Constitu- pinanderB had tion, had, of all men connected with *" •'"^^^' p"'- the Revolutionary struggle, the hardest part. For who would not rather be shot at, with the privilege of returning the fire, than be ceaselessly dunned by importunate and suffering creditors? The Treasury got only such money as it could borrow, and such as the States voluntarily contributed. Nobody owed the Treasury anything, the collection of which could be enforced, and the Treasury owed nearly everybody something that could not be paid. The Army was half -clothed, and half-fed, and wholly unpaid. A soldier does not, however, much mind 208 THIS COUNTRY OF OTJKS his own diet or discomfort. Parched com will do, and bare feet and bullet wounds do not altogether take the heart out of him — but a starving wife and baby do. Until by the adoption of the Constitu- tion the Congress was given power to lay and col- lect taxes the state of the Treasury was not only lamentable but disgraceful. Kobert Morris, who had made a great name and a great fortune in mercantile pursuits, was ap- Eobert Moms, pointed Superintendent of Finance Superintendent of ■*■ Finance. on February 20, 1781, but did not accept untn May ; and it was several months later before he assumed full control of the office. Ham- ilton, pending Morris's acceptance, wrote to him as follows : I am happy in believing you will not easily be dis- couraged from undertaking an office, by which you ren- der America and the world no less a service than the establishment of American independence. 'Tis by in- troducing order into our finances, by restoring public credit, not by gaining battles, that we are finally to gain our object. 'Tis by putting ourselves in a condition to continue the war, not by temporary, violent and unnat- ural efforts to bring it to a decisive issue, that we shall ui reality bring it to a speedy and successful one. In the frankness of truth, I believe, sir, you are the man best capable of performing this great work. It seems that Morris had also a high estimation of Hamilton's ability as a financier, for it is said THE TKEASUKY DEPARTMENT 209 that, in a conversation witli Washington, and in response to the question, " What are we to do with this heavy debt ? " he said : " There is but one man in the United States who can tell you — that is Alexander Hamilton." The "Act to establish the Treasury Depart- ment " was approved by Washington, September 2, 1789, and on the eleventh day of the ^rea^^ under same month Alexander Hamilton HamMon 'fi?sl was commissioned as Secretary. A *'^'®'*^- funding scheme prepared by Hamilton having been adopted, the liberties wrested by arms from the British crown were made secm-e, and the credit of the Government passed from collapse into con- valescence. Of Hamilton's great work in the Treasury De- partment Webster said : " He smote the rock of the National resources, and abundant streams of rev- enue gushed forth. He touched the dead corpse of Public Credit, and it sprung upon its feet." The interest-bearing debt of the United States was about $75,000,000 when Government under the Constitution was inaugurated, p^^,.^ ^g,,j .^ It had grown to $86,000,000 by 1804, *" ^^''■ had fallen to $45,000,000 in 1812; and the debt that many, at the close of the war of independence, believed to be as permanent as the Constitution, was paid in 1835. 14 210 THIS COUNTRY OF OURS The organization prescribed by the law of 1789 was a Secretary, to be the head of the Treas- The Department ^U Department; a Comptroller, an orgamzation. Auditor, a Eegister, and an assistant to the Secretary. This general organization is stiU in use, though there are now three Assistant Secretaries and six Auditors. Until recently there were two Comptrollers of the Treasury, but the Act of July, 1894, abolished the office of Sec- ond Comptroller, and there is now but one. Other principal officers have been added as new func- tions or the increasing work called for them, such as a Treasurer, Directors of the Mint, and of the Bureau of Engraving and Printing ; Superintend- ents of the Life-Saving Service, and of the Coast Survey ; a Supervising Architect, a -Supervising Inspector - General of Steam Vessels, a Light- House Board, a Supervising Surgeon-General of Marine Hospitals, a Comptroller of the Currency, Commissioners of Internal Revenue, of Navigation, and of Immigration ; and Chiefs of the Secret Ser- vice and of the Bureau of Statistics. The general duties of the Secretary, as prescribed in the law of September 2, 1789, have not been materially modi- fied. They were : To collect the public revenues and to digest and prepare plans for the improve- ment and management thereof, and for the support of the public credit ; to make estimates of receipts THE TREASURY DEPARTMENT 211 and expenditures; to grant warrants for moneys appropriated ; to provide for the keeping of proper accounts, and to make reports and give information to Congress, in person or in writing, as required. The Treasury Department receives all moneys due to the Government, pays out all moneys due from it, and keeps a book-account of collecting and . disbursing agen- all these transactions. Money is cov- cy- ered into the Treasury by warrants, upon which the Treasurer endorses his receipt, and is paid out upon warrants drawn upon him. The appropria- tion bills passed by Congress furnish the only au- thority for paying out money from the Treasury. The assistant secretaries have assigned to them the general supervision of the work and corre- spondence of specified bureaus and divisions. One of them may be designated by the Secretary to sign in his stead warrants for covering money into the Treasury, and for the disbursement of money upon accounts properly audited and settled, and, in the absence of the Secretary, to act as the head of the department. The officer immediately in charge of and respon- sible for the public moneys is called the Treas- urer, and the rooms and vaults in the Treasury Buildiag at Washington used by him, and such other apartments as are provided for the deposit of public money, are 212 THIS COUNTRY OF OURS called the " Treasury of the United States." The Treasurer is charged, not only with the moneys in his vaults at Washington, but with those in other authorized depositories. He is required to pay the interest on the public debt, to receive the United States notes, and to issue new notes for notes returned, and destroyed by him. He redeems the notes of the national banks presented to him out of a fimd the banks are required to keep with him. He is the custodian of the United States bonds deposited to secure the circulating notes of the banks, and to secure public money deposited with the banks. A Eegister of the Treasury was provided for in the first organization of the Treasury Department. Register of ^^ ^^^' T^i^til recently, a sort of gen- TreaBnry. ^^.^j book-keeper for the department, and received and filed all adjusted accounts and vouchers, recorded and certified warrants for the receipt and expenditure of money, etc. The Act of July, 1894, established a Division of Book- keeping and Warrants, which is now required to keep an account of all the receipts and expendi- tures of the Government, except those relating to the Post-Office Department. The Register signs and issues United States bonds, registers those that are made payable to particular persons — as distinguished from the coupon bonds that are pay- THE TREASURY DEPARTMENT 213 able to bearer — and furnishes to the Secretary a list of the persons to whom interest on the regis- tered bonds is due. He signs transfers of money from the Treasury to any depository. He receives, arranges, and registers United States notes. Treas- ury notes, gold and silver certificates, interest cou- pons, and other securities redeemed and destroyed, and also all condemned customs, internal revenue, and postage-stamps. A comptroller is one who controls. The Comp- troller of the Treasurj"^ is a superior supervising officer of accounts. A First Comp- comptroller of troUer once said, pleasantly but Treasury, proudly, to the President : " No one can overrule me — not the Secretary, not even you, Mr. Presi- dent." " No," said the President, " I cannot over- rule your decisions, but I can make a new Comp- troller." The Comptroller of the Treasury is no longer required to supervise and settle all of the accounts acted upon by the auditors, but only such as may be appealed to him — the claimant, the head of the department, or of the board or com- mission, not under a department, to which the accounti appertains, or the Comptroller himself, having the right to bring the case up for review. Upon the request of the head of a department, or of any officer charged with the duty of paying out public moneys, the Comptroller must, in advance, 214 THIS COUNTRY OF OURS give his opinion as to the rightfulness of a pro- posed payment, and the opinion given governs in adjusting the account. When an original con- struction of a law is made by one of the auditors, or a construction before adopted is modified, the Comptroller must pass upon the question. The decisions of the Comptroller are binding upon all executive officers, including the Secretary of the Treasury. But he may be reviewed by the courts if the matter is taken there, and the Secretary may suspend payment of an account and order a re- examination. All warrants for the disbursement of money must be countersigned by the Comp- troller. There is still another comptroller in the Treas- ury Department, but his sphere is limited. His Comptroller of burcHU was established in 1863, and the Currency. ^j^^ j^^g^^ ^f jj -g gj,yjg^ ^^^ » (.^^p_ troUer of the Currency." He is charged " with the execution of all laws passed by Congress relating to the issue and regulation of a national currency secured by United States bonds," and is to per- form his duties "under the general direction of the Secretary of the Treasury." Those duties are to supervise the national banks and to see that the law is complied with in every particular in the organization of such banks. His certificate is necessary before a bank can open for business. THE TREASURY DEPARTMENT 215 Eegular reports are made to him by every bank, showing the state of its business, and he may call for special reports from all or any of them. He has under him bank examiners, who visit the banks and examine their accounts. In case of the failure of a bank he may take charge by an agent or receiver, and wind it up and distribute its assets to its creditors. He causes the bank- notes to be printed, and delivers the same to the banks as they may be entitled to them. There are six auditors in the Treasury Depart- ment, and all the accounts of the Government are examined and passed upon by them. Every public officer who pays out money must submit an account with proper vouch- ers, and he does not get credit against the moneys charged to him until his account has been audited and passed as correct. The auditors were, until very recently, designated by numbers — first to sixth inclusive; but, under the law of 1894, they are designated as auditors for the various depart- ments — ^ Auditor for the Treasury Department, Auditor for the War Department, etc. The old Fifth Auditor is now " Auditor for the State and other departments." The accounts allowed by the auditors are certified directly to the Division of Book-keeping and Warrants in the office of the Secretary of the Treasury, and a copy is sent to 216 THIS COUNTRY OF OUKS the head of the department in which the account originated. Until the breaking out of the Civil War a per- manent system of internal taxation was unneces- sary. The customs duties, the pro- Intemal Revenue. ceeds of the public lands, and some smaller incidental sources of revenue, were relied upon to meet the current expenses, and if there was a temporary deficiency it was covered by loans, or by a temporary exercise of the internal taxing power — as in the unsatisfactory attempt to collect a tax on whiskey in 1791. But the gigantic struggle for the defence of the nation against secession not only called into exercise every taxing power given by the Constitution, but put every such power upon a high tension. Many of my readers are too young to remem- ber how long and how greedy was the hand of the Treasury as it reached out into all parts of the laud, and into the business concerns of every man and woman, to gather the revenues needed to carry on the war. Constitutional questions were judged liberally in those days, for it was not thought worth while to preserve the Constitution as a book and let the nation die. An Internal Revenue Bureau came naturally into being in 1862, as the managing agency of these internal taxes, and has probably become a fixture in the Treasury THE TEEASUEY DEPAETMEKT 217 Department. The head of the bureau is called the Commissioner of Internal Revenue, and his duty is, under the Secretary of the Treas- commissioner of ury, to superintend the collection of i-^t^™*! K«™nue. internal taxes. These taxes are now chiefly those laid on distilled spirits, beer, tobacco, and oleo- margarine. The Commissioner, through an army of store-keepers and gaugers, watches over the production of all distilled spirits, gauges every package and collects the tax upon each gallon. The receipts from internal revenue for the fiscal year ending June 30, 1896, were $146,762,864.74, being only about thirteen millions less than the receipts from customs. Very naturally the national coinage is under the direction of the Secretary of the Treasury ; and so there is a Bureau of the Mint, and M^ctorof the the head of it is called the Director ™°'- of the Mint. He has the supervision of all the mints and assay ofiices. So, too, as all our paper money, including national bank-notes, is made, cer- tified, and issued by the Treasury Department, the work of engraving the plates for all these circulat- ing notes, for the United States bonds, and for our revenue and postage-stamps, and of printing the notes, bonds, and stamps, is done through a bureau of the department called the Bureau of Engraving and Printing. In the business of making coins 218 THIS COTTNTRY OF OURS and notes to be used as money of the United States the Treasury Department has an exclusive fran- chise, and is so jealous of it that it pursues venge- fuUy all persons who attempt to make such coins or notes. To make this pursuit effective there is a Secret Service Division, with a chief and a corps of skilled detectives, whose business it is to im- cover and arrest all counterfeiters of the coins or securities of the United States. But the Treasury Department is more than a mere counting-office. Hidden away among its prosaic books of record, its piles of sUver dollars, and the sedate men and women who foot the col- umns of the books and tell the tale of the dollars, are some workers who have to do with reports of heroic adventure, and of succor to the suffering or imperilled, and some sketches and models that are at least suggestive of art. The Supervising Architect is an official of the Treasury Department, and his business is to pre- supervismg Ar- P^re the plaus for public buUdings, chitect. ^^^ Iq superintend the erection of them. Some effort has been made to secure com- petitive designs from our best architects for the great buildings we are to erect, and it is to be hoped that by this means the monotony and unsighthness that have too much prevailed may be broken up. THE TREASURY DEPARTMENT 219 The Marine Hospitals, where our sick seamen are received and cared for, are man- Marine Hospi- , ~ . . ^ _. talB and Coast aged by a supervising burgeon-Gen- survey, eral, under the direction of the Secretary of the Treasury. The Coast and Geodetic Survey is another most interesting and useful work which is supervised by the Secretary, though the Superintendent of it and his office force are not housed in the Treasury Building. The work of the bureau is highly scien- tific, and at the same time eminently practical and useful. It is to make a survey of our entire coast for a, distance of twenty leagues from shore, and of all our harbors ; to locate all shoals, rocks, and other dangers to navigation ; to take soundings, and to chart all of these results for the use of sailing- mas- ters. The geodetic work is the making of an accu- rate survey of land lines across the continent with a view to a more exact knowledge of the form of the earth. The surveys and calculations are made in part by officers of the Navy, detailed for that service, and in part by scientific men selected from civil life. When the Coast Survey has revealed and charted the dangers and the safe paths of com- merce, then the Light-House Board, ught-Honee of which the Secretary of the Treas- ^°"*- ury is ex-officio President, takes up the work of marking by suitable buoys and lights these ascer- 220 THIS COUNTRY OF OURS tained dangers and paths. The coasts of the oceans and the lakes are divided into districts, and an in- spector (a Naval officer) and an engineer (from the Engineer Corps of the Army) are assigned to the care of each district. But, spite of chart and light, now and then the storm king drives, or the treacherous fog lures, a Life-saTing 'vessel upon rock or shoal, and the Service. Treasury Department has a last duty to the seamen, which the Life-saving Service dis- charges. All along our sea and lake coasts, and especially on the dangerous stretches, there are stations, and between these all night long the patrols pass to and fro in the stormy months, look- ing for the signals of vessels in distress, and sum- moning their comrades for the rescue when such signals are seen. CHAPTEE XIII DEPARTMENTS OF WAR AND JUSTICE War Depaktment Okqanized — Duties op Secretary — ^Princi- pal Officers— Heads of Staff Corps— Making Bio Guns — Coast Defences — The Military Academy — Attorney- General's Office— Department of Justice Created— Duties of Attorney-General — Organization of His De- partment. Military affairs under the Confederation were first conducted by a Committee of Congress, then by a Board of War, and after 1781 •' Organized in 1789. by a Secretary of War. The War Department was established under the Constitution by an Act of Congress of date August 7, 1789, and General Henry Knox, who had been holding the office since 1785, was made Secretary by Presi- dent Washington. In 1890 Congress provided an Assistant Secretary. Before that there had been none. The larger duties of the Secre- jj^j.^^ tary of War are not very particularly °f secretary. described in the statutes. The law reads : He " shall perform such duties as shall from time to time be enjoined on or entrusted to him by the President relative to military commissions, the 221 222 THIS COUNTKT OF OURS military forces, the warlike stores of the United States, or to other matters respecting military affairs ; and he shall conduct the business of the department in such manner as the President shall direct." The law defining the duties of the Secretary of the Navy runs much in the same terms. The thought of the law-makers seems to have been that as th«se departments had to do with the organiza- tion, equipment, and subsistence of the land and naval forces of the United States, and the move- ment of troops and ships, and as the President is by the Constitution the Commander-in-Chief of such forces, the action of the heads of these depart- ments must proceed, theoretically, at least, upon the President's direction. " By order of the Secre- tary of War " is the equivalent of " by order of the President," and perhaps War Department orders should take the latter form. It would obviate in great measure the not infrequent differences be- tween the Secretary and the General commanding the Army. In fact, the Secretary acts in great part upon his own judgment, and only consults the President and takes his directions in important matters. All of the principal officers of the War Depart- ment, except the Secretary and the Assistant Secretary, are army officers, the heads of the sev- DEPARTMENTS OF WAR AND JUSTICE 223 eral staff corps, thus : the Adjutant-General, the Inspector-General, the Judge Advocate-General, the Chief Signal Officer, the Quartermas- Principal officers ° . — HeaSs of BtafE ter-General, the Commissary-General, corps, the Chief of Engineers, the Paymaster-General, the Surgeon-General, and the Chief of Ordnance. Each of these officers has the army rank and pay of a brigadier-general, and conducts his office under the Secretary of War. The titles they bear, perhaps, sufficiently indi- cate their general duties. The Adjutant-General's office has to do with the muster of . . !■ 1 1 » Their duties. troops, the organization ot the Army, the preservation of the muster in and out rolls, and the various regimental, company, and post re- turns and reports required by the army regula- tions ; and it is through this office that orders are issued directing the movements of officers and troops. The Inspector-General visits and inspects all military posts, detachments, and prisons, and the Military Academy ; reports upon matters relat- ing to the equipment and discipline of the troops, the sanitary condition of the posts and prisons, and examines the accounts of disbursing and issu- ing officers. The Judge Advocate-General is the military law officer of the department. He receives and reviews the records of army courts -martial, and gives to the Secretary opinions upon law 224 THIS COUNTRY OF OURS questions submitted to him. The Chief Signal Officer is the head of the Signal Corps of the Army, and his military duties relate to army signalling, either Avith the flag (what the soldiers used to call " wig-wag ") or the heliograph, and to the construction and use of field telegraph lines. There was added to these military duties a meteor- ological service, designed to observe and report storms, freshets, and changes in temperature that involve danger to the mariner or to the farmer. This service has now been transferred to the Agricultural Department. The Quartermaster- General is charged with providing practically all army supplies, except arms, rations, and medicines, and these are supplied respectively by the Chief of Ordnance, the Commissary-General, and the Sur- geon-General. Upon the engineer officers of the Army important civil duties have been devolved, in addition to those of a military nature. The military duties of the corps embrace the location and construction of fortifications, military bridges, pontoons, etc. The officers of the corps are also employed in the location and construction of light- houses, and in the important and very extensive works undertaken by the Government for the im- provement of harbors and navigable rivers. The arms, large and small, used by the Army, are generally manufactured and repaired at arsenals DEPAETMENTS OF WAR AND JUSTICE 225 which are under the control of the War Department The most important of these are located at Spring- field, Mass., Eock Island, 111., and Arsenaia-Big West Troy, N. Y. The first two are s-ms and mortars. chiefly equipped for the making of rifles and carbines, and the last for the making of large guns — rifled cannon and mortars. Just now the guns, large and small, heretofore used by the Army, are being exchanged for the long range quick- firing breech-loading modern gun; and the old forts, with their stone walls, are giving way to earth parapets and holes in the ground. Large rifled cannon, carrying projectiles weighing as much as 1,000 pounds, and having a range of thirteen miles, are now being mounted in our new coast-defence works, upon disappearing carriages or platforms, and behind parapets not much above the sur- rounding surfaces. The range is found and the gun pointed while it is in a pit below the natural surface. The touch of a lever lifts the gun above the surface ; it is fired and sinks again into the pit. The old mortar had no accuracy of fire. For a sure mark it needed a city not below the third class. But the new rifled mortar will find a ship's deck, when the ranges have ■■^ ° Coast defence. been carefully established. The long neglected work of coast defence is at last be- gun, and the skill of our accomplished officers 15 226 THIS COUNTEY OF OUKS of ordnance and of engineers will very soon make secure against hostile fleets the harbors of our great cities. With our coast cities well defended by large guns on shore, and a good fleet in each of the great oceans, the defence of our country will be made good. No hostile army that can be brought to our shores from Europe can penetrate far into our territory. No invader will ever tarry to reap a grain crop. Our commerce will be at risk, but the larger commerce of our adver- sary will be staked against it. With every port blockaded, om- people and our Army would lack for nothing. We should not be dependent on block- ade-runners. All these preparations and condi- tions will promote arbitration, and. Arbitration; -n i better stul, the direct adjustment of international differences. What is won in a law- suit is neither given with grace nor accepted with gratitude. A volimtary surrender of the brutal privilege of killing pregnant and nursing seals for their skins would be a better evidence of good- will than the most touching banquet utterances. It has never been the policy of the United States to maintain a large standing army. At the close strength of our °^ ^^^ Ecvolutionary War, when it *™^- might have been supposed the Army would have been held in high and grateful appre- ciation by the people, the popular jealousy and DEPARTMENTS OF WAR AND JUSTICE 227 apprehension of the national troops was absurdly intense. Congress refused to authorize the enlist- ment of -eight hundred men to garrison the frontier posts about to be surrendered by Great Britain. McMaster says : " The history of Greece, the his- tory of Rome, and the history of England were then ransacked for examples of the ills of a stand- ing army." * The Army of the general Government was disbanded — only eighty men being retained to protect the public stores at Fort Pitt and at West Point. The Army is now limited by law to twenty- five thousand enlisted men. There are five regi- ments of artillery, of twelve batteries each; ten regiments of cavalry, of twelve troops each, and twenty-five regiments of infantry, of ten companies each. The enlisted men of two regiments of cav- alry and two of infantry are colored men, and they have attained a high record for efficiency. The War Department maintains a bureau of in- formation with a view to the collection of all the data necessary to the understanding Bureau of and solution of every military prob- mtormaaon. lem. Arms, rations, transportation, topography, the concentration of troops, the strength and arma- ment of forts, are taken account of, not only as they relate to our own forces and territory but to "McMaster: History of the People of the United States, rol. i., p. 186. 228 THIS COUNTBY OF OURS those of a possible enemy. An army and a naval officer are attached to the legations of the United States at the important European capitals for the purpose of observing and reporting things that our military departments should know of new arms or construction or tactics. The officers of the Army are chiefly graduates of the West Point Military Academy, though a door is open for the promotion of merito- Military Academy. . t ■,■ ^ nous soldiers who, as non-commis- sioned officers, have made a good record and have passed an examination as to their qualifications; and now and then, when there happen to be an un- usual number of vacancies, appointments to the grade of second lieutenant are made from civil life. The graduates of the Academy are assigned to vacant second lieutenancies, and, if there are not enough such vacancies, are borne on the rolls as additional second lieutenants until vacancies occur. The corps of cadets at the Academy is composed of one from each Congressional district, one from each Territory, one from the District of Columbia, and ten from the United States at large, f and all save these ten must be residents of the . districts or territories from which they purport to be appointed. They are all appointed by the President, but those from the Congressional dis- tricts and the Territories have by custom for many DEPARTMENTS OF WAR AND JUSTICE 229 years been selected by the representatives and del- egates in Congress — each naming the cadet from his district. The cadets receive $540 a year. Our Army is small, in fact, and minute, when compared with any of the armies of the other great Powers, but under the operation of High«!i.r« - , i i . , . Baird, who was at the time Assistant Secretary of the Smithsonian Institution, and who became Secretary on the death of Professor Henry. Professor Baird's " scientific and practical " knowl- edge of fishes was such as to win him medals and decorations. A talk with him upon the sub- ject was a delightful experience. In 1888 the requirement that the commissioner should be an officer or emploj^ee of the Government was re- pealed, and provision made for the appointment of a commissioner at an annual salary of $5,000. The detail of officers and men of the Bevenue Marine for Fish Commission work was authorized, and from time to time appropriations have been made for the construction of vessels for the special service of the Commission. The general work of the Commission is to study the habits of the food INDEPENDENT BOARDS AND COMMISSIONS 299 fishes, and to devise measures for maintaining the supply. Hatcheries have been established at many places, and every year millions of the fry of shad, salmon, trout, and other food fishes are placed in the rivers of the country. The carp a blunder. The only serious mistake of the Com- mission was the introduction of the carp, under the mistaken impression that it could be made an American food fish. CHAPTEE XX THE JUDICIABY A Supreme Independent JtJDiciART — Judicial Powers Under Confederation — Constitutionality op Laws op Congress — Op the States— Court Tries Actual Cases — Washing- ton's Questions — Suit Against a State — Eleventh Amend- ment — Washington's Estimation op Supreme Court — No End to Constitutional Questions— Political Questions. A SUPBEME independent judiciary is an indispen- sable element of every government that engages to A supreme in- protect the property rights and liber- «ependent jndi- , .• • ciary. ties oi its citizens ; tor protection in- volves ascertainment — a judgment — and a mandate. An orderly and peaceful community is impossible without a court to adjudge the inevitable disputes between the individuals who compose it, and to ascertain and punish infractions of the public peace. These duties cannot be intrusted to a foreign tribunal. The government that enacts laws must have its own courts to intei-pret and apply them. The Constitution of the United States is the su- preme law, and every law of Congress, every State Constitution, and every State law must be brought to the test of this supreme law, and is valid or in- 300 THE JUDICIARY 301 valid as it stands, or fails to stand, that test. The interpretation and enforcement of the National Constitution and laws could not, for constitution the several obvious reasons, be left to ^"P^'-'e law. the State courts. Uniformity of interpretation would be impossible if the Supreme Appellate CoTii'ts of the States could, each for itself, and finally for the people of the particular State, construe the National Constitution and laws. And especially questions affecting the conflicting powers of a State and of the National Government could not be left to the decision of the State court. If the powers given to the National Government were to be maintained, and uniformly and beneficially exercised, it was essential that the final judicial determination of the scope and limits of those pow- ers should be confided to national courts. It would not have done in 1861 to submit the ques- tion of the right of a State to secede from the Union to the Supreme Court of South Carohna, or perhaps to any court. The Articles of Confederation gave to Congress the power to appoint courts for the trial of pira- cies and felonies committed on the judicial powers . . under Confedera- high seas, and of appeals in prize tion. cases ; and Congress was made the court of final appeal in all disputes between States concerning boundaries, jurisdiction, and other matters, and of 302 THIS COUNTRY OF OUES conflicting claims to lands held or claimed under grants from different States. This was a very lim- ited and inadequate jurisdiction, and was very feebly exercised. The State courts showed little more deference to the Judicial Department of the Confederation than the State Legislatures did to Congress. A Pennsylvania court refused to rec- ognize the appellate jurisdiction in a prize case, and Congress, recognizing the crude and ineflScient character of the judicial powers of the Confedera- tion, sometimes directed Federal cases to be tried in the State Courts. The Confederacy had no court authorized to construe and enforce the laws of Congress, or to punish offences other than felonies on the seas. Hamilton spoke of this as the crowning defect of the Articles of Confed- eration. The framers of the Constitution, instructed by the defects of the Articles of Confederation, saw state laws tested t^^t questions ES to the vaUdity of by Constitution, g^^^^ ^^^^ ^^^^ ^^^ Certain su- preme powers were to be given to the United States, and certain other powers prohibited to the States. There must be a veto power somewhere upon any State laws that invaded the powers of the United States or used the powers prohibited to the States. Mr. Madison proposed that Con- gress should have the power to veto a State law, THE JUDICIARY 303 but the Convention was led to a wiser solution of the difficulty. To the Supreme Court of the United States, an independent judicial tribunal of the highest dig- nity, removed as far as men can be ,j^g supreme removed from the sway of human '^'"^' passions and prejudices, and placed under the sanc- tion of the highest obligation that can be imposed upon men to exercise justice without fear or favor, the safe-keeping of the ark of our civil covenant was committed. The power to bring laws to the test of the Constitution is not limited to the laws of the States, but includes the laws of Congress. This power must be exercised by some body or tribunal, if the " supreme law " is to be supreme. Gouverneur Morris said : " Such power in judges is dangerous ; but unless it exists somewhere the time employed in framing a bUl of rights and form of Government was merely thrown away." The first decision of the Supreme Court holding a law of Congress to be unconstitutional was given in 1803 (Marbury vs. Madison, 1 a law of con- ereBS unconstitu- Cranch, 187), the opinion being de- fionaJ. livered by Chief-Justice Marshall. In the course of the opinion he said : " So if a law be in opposi- tion to the Constitution ; if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably 304 THIS COUNTRY OF OUKS to the law, disregarding the Constitution, or con- formably to the Constitution, disregarding the law, the court must determine which of these conflicting rules governs the case." Nothing can be added to this luminous statement. We have a higher law and a lower law. When they both apply to a case be- fore the court, the higher law must prevail — is the law of the case ; and the courts must follow the law. The manner in which this high power is exercised has greatly tended to promote its effec- tiveness and to avoid the initations that would otherwise have been excited. The laws of Congress and of the States are not laid before the Supreme Court to be marked " Constitutional" or " Uncon- stitutional," as the case may be, and returned to the Legislative bodies. The court takes no notice of statutes until they are brought to its attention in a " case " — a real controversy between persons. It will not answer abstract questions nor hear Court tries "mootcases." In 1793 Washington, cases. Washing- . tons questions, being greatly perplexed by some questions of international law growing out of the ob- streperous conduct of the representative of France, propounded to the Supreme Court twenty-niue questions : as to the right of France to fit out ves- sels of war in our ports, to set up prize courts in our territory; whether free bottoms made free cargoes, etc. The Court respectfully declined to THE JUDICIARY 305 answer the questions — holding that it could only- give opinions in cases properly brought before it. In some of the States provision is made for sub- mitting abstract questions to their supreme courts. In the civil crisis that occurred in Maine under Gov- ernor Garcelon this method of getting a judicial expression was used with good effect, but, on the whole, it is better that all questions requiring a judicial determination should be brought before the courts in suits between individuals. The Supreme Appellate Courts of the States exercise the power to declare acts of the State Legislatures to be invalid if they conflict with the Constitutions of the States. Under the English Constitution — where an Act of Parliament is the highest written law — the courts are not called up- on to decide between an Act of Par- No question o( T 1 -I ^ . . , . . rr,i conatitutionality liament and a Constitution. The mEngiaM. English courts, however, must interpret Acts of Parliament when they affect cases before the courts. But if a law is interpreted in a sense other than that intended by Parliament, it is in the power of that body to pass another act that will carry out the original intention. That may .also be done here if the question is only one of interpretation. But if a law, as to its general purpose, is held by the Supreme Court to be invalid because it conflicts with the Constitution, 20 306 THIS COUNTRY OF OURS Congress is without any further constitutional power in the matter. The decision is strictly final only between the parties to the case in which it was rendered. As to other persons it is only final in the sense that if they assert any right under the same statute they may expect their cases to be decided in the same way. But the Consti- tution has not left the people without an orderly way of making the Constitution what they desire it to be, if the Supreme Court should construe it to be something else. That method is by amend- ments proposed to the States, either by a vote of two-thirds of both Houses of Congress, or by a convention requested by the Legislatures of two- thirds of the States, and adopted by the Legislat- ures of three-fourths of the States, or by conven- tions in such States. There is an instance of such a use of the power of amendment. The Second Section of Article Three of the Constitution de- clares that " the judicial power shall extend . . . to controversies . . . between a State and citi- zens of another State." In the " Federalist " Hamilton argued that the jurisdiction thus given did not extend to suits Suit against a brought by individuals as plaintifis ^*^- against States. But in 1793 the Su- preme Court, in an opinion by Chief -Justice Jay, held that the jurisdiction did extend to such cases, THE JUDICIARY 307 and entertained a suit by one Chisholm, a citizen of South Carolina, against the State of Georgia, for the recovery of a debt. Great popular ex- citement followed the decision, for it seemed to be in derogation of the dignity of a State that it should be drawn into court at the suit of a citizen of another State. Belief was sought and obtained — ^not by packing the court, but by the adoption, the following year, of the Eleventh Amendment, which declares that the judicial power " shaU not be construed " to Eleventh Amend- extend to suits by citizens of another '"®°'' State or of a foreign country, against a State. In the exercise of this extreme but necessary power to declare a law of Congress or of a State to be invalid, the Supreme Court has acted with great consei-vatism, but also with great courage. The services of that court, in defining and defending the national powers, can hardly be over-estimated, and are popularly very much under-estimated. Washington has left on record many expressions of his estimate of the value of the Washington's , , , estimation of the national judiciary as an element in Supreme comt. our system of Government. They have a present application. In transmitting his commission as Chief-Justice to John Jay, of New York, he took occasion to say : " It gives me singular pleasure to address 308 THIS COUNTRY OF OURS you as the head of that great department which must be considered the keystone of our political fabric." And to James Wilson he wrote : " Considering the judicial system as the chief pillar upon which our Government must rest, I have thought it my duty to nominate for the high offices in that de- partment such men as I conceived would give dignity and lustre to our national character." These expressions of Washington are impressive and ought to be pondered by those who are in- clined to disparage the judiciary, and by those who would destroy the "independence of the Su- preme Court by threats of reconstructing it when their views of constitutional construction are not followed. Mr. Webster's statement that " the Constitution without it would be no Constitution — the Govern- ment no Government," is not an overstatement. Among the men who framed the National Con- stitution there were many of eminent legal ability, No end to con- and some who - possessed in a high stitntioual ques- , ,i p n p l tions. degree the faculty oi accurate expres- sion ; yet from the hour that Government under the Constitution was instituted until this hour a great procession of questions as to the meaning of this section or this phrase of that instrument has been moving into the Supreme Court-room for THE JUDICIARY 309 solution. The door has not yet closed upon the last of them and probably never will. These ques- tions relate not only to the text — to the express powers granted to the national Government — but every express power may carry one or many inci- dental powers — that is, powers necessary to carry into effect the expre'Ss or specific power. The power or direction to do a particular thing implies the power or direction to do all other things that must be done to execute the power or carry out the direction. To the lay mind it Provisions gen- - eral. New con- may seem to be puzzling and not a ditions. little discouraging that a century has not sufficed to interpret the Constitution ; but the explanation is largely in the fact that constitutional provisions are general and not particular, and the court is re- quired constantly to apply them to particulars and to new conditions. What does the interstate com- merce clause mean as applied to railroads and the telegraph — things the writer of that clause never dreamed of ? How are the limitations of the Con- stitution to be applied to a state of civil war ? How is the guarantee of a republican form of govern- ment to the States to be made good in- the case of an attempted secession? Is an Executive proc- lamation effective to emancipate the slaves in time of civil war? It would not have- been safe to try to be specific, even if all these things could 310 THIS COUNTRY OF OUES have been anticipated by the members of the Con- vention. And it may be that if every future appli- cation of the general propositions adopted had been foreseen some of the most important of them would have been negatived. The makers of our Constitution, instructed by the experience of the Colonies, by the State Con- DiviBionof stitutious already adopted, and by powers. earlier lessons from British history, found an easy agreement upon the general princi- ple that the judicial power of the United States should be vested in a separate and independent department. The division of powers will be made plainer by bringing together the opening sentences of the first three Articles of the Constitution : Article 1. All Legislative powers herein granted shall be vested in a Congress of the United States. Article 2. The Executive power shall be vested in a President of the United States of America. Article 3. The Judicial power of the United States shall be vested in one Supreme Court, and in such infe- rior Courts as the Congress may from time to time or- dain and establish. Upon this threefold frame the other provisions of the Constitution are hung. The limitations upon the powers of the United States Courts will be more clearly understood if what has been be- fore said in another connection is recalled here — THE JUDICIAEY 311 namely, that the powers of Government in this country are divided between the nation and the States upon the principle that certain powers are set off to the United States, and all other powers, save a few that are prohibited, are retained by the States. The Constitution enumerates the powers which the people have given to the Thejua-oiai nation. " The judicial power of the ''°"^''' United States " is, therefore, such power of a judi- cial nature as the Constitution gives to the United States — no more. The residue of the judicial power the people have reserved, and have given the whole, or such part of this reserved power as pleased them, to the State Courts. But as to the subjects or cases given to be judged by the United States Courts the power is complete and supreme. The decision ^„e8tionsofjuriB- of the Supreme Court of the United Miction included. States in any case of which it has jurisdiction is final ; and the question whether it has jurisdiction of the case it must, of course, settle for itself. No other court can intercept its mandates. The final interpretation of the Constitution of the United States as affecting the question of the court's ju- risdiction to receive a case, as well as to the prin- ciples upon which the case is to be judged, is, and must in the nature of things be, with the Supreme Court of the United States. A power in a State 312 THIS COUNTRY OF OUKS Court to determine finally a question of the con- struction of the Constitution of the United States, as affecting the jurisdiction of the United States Courts, would subordinate and practically destroy the Federal judiciary. The grant of the power to hear and determine suits involving specific subjects, or between par- ticular persons, carries the power to determine whether those subjects are involved in the case presented, and whether the parties are of the classes described. It is expressly written that " the judges in every State " shall be bound by the Constitution and the laws made in pursuance of it, " anything in the Constitution or laws of any State to the contrary notwithstanding." Briefly and generally, then, this is the " judicial power of the United States " — to hear and determine finally such cases, and only such, as the Constitution com- mits to the courts of the United States, and ex ne- cessitate, to decide whether each case as it is pre- sented is within the grant of judicial power. Political questions are left by the Constitution to the political departments — namely, the Congress will not try po- ^^^ *^® President ; and the Supreme liticai questions, q^^^ ^jij ^^j. consider them. Chief- Justice Marshall said : " Questions in their nature political, or which are by the Constitution and laws submitted to the Executive, can never be THE JUDICIARY 813 made in this court." Political questions are such as the recognition of the sovereignty of another nation and of its territorial limits, the recognition of a particular organization as the true Govern- ment of a State, or the determination by the Pres- ident when called upon to aid in suppressing a domestic insurrection in a State, as to which is the lawful Government, etc. CHAPTEE XXI THE JUDICIARY (Continued) Ckeation of Supreme Court — Number of Justices— Jat and Marshall — Tenure— Gowns and Wigs — Scope op Federal Jurisdiction- Rule in Construction of State Laws — Original Jurisdiction of Supreme Court — Circuit and District Courts — Circuit Courts of Appeals — Court OF Claims — High Character op Federal Judges. Befoee proceeding to particularize as to the jurisdiction of the courts, let us see how they are Creation of su- Constituted. The Constitution estab- preme Court, ygj^^g ^^^ ^^^j.^ only— namely, the Supreme Court — and that not fully, for it does not fix the number of justices that shall compose the court. That is left to Congress — unwisely, for it weakens the stability and detracts from the inde- pendence of the Court. If political interests are in- volved in a decision, and the decision is adverse to the party in power, the suggestion that a reversal Number, of Ja8- ""^y be secured by increasing the ''"^^^ number of the justices is very tempt- ing to partisans, but its frequent use will be de- structive, fatally so, to our constitutional union. It may be said that the Convention could not anticipate the increase of the business to come be- 314 THE JUDICIARY 315 fore tlie Court and provide a bench for all time. But it would have been always practicable to pro- vide for an increased amount of litigation by limit- ing the appeals and creating inferior appellate courts to decide cases of lesser importance, as has now been done, or by increasing the number of justices by an amendment to the Constitution. If it be said that the latter method is slow and difficult it may be answered that all changes in the consti- tution of the Supreme Court ought to be slow and diiScult. It is to be borne in mind, also, that an increase in the number of justices only a little ex- pedites business. No case ought to come to the Court that is not of sufficient importance to de- mand the attention of all the justices. And if all the justices sit in all cases and participate in the decision of them, as they have always done, and should do, an added justice only becomes an aid in despatching business when the opinion is to be written ; and much of this gain in time may have been lost in more protracted discussion in the con- sultation-room. The Judiciary Act of 1789, which gave the Court its organization, provided for a Chief-Justice and five Associate Justices. John Jay j„aieiaryActof was the first Chief-Justice, and his 1^89. siz Justices. associates, as first named and confirmed, were John Kutledge, James Wilson, William Cushing, Eobert 316 THIS COUNTRY OF OUBS H, Harrison, and John Blair. Harrison was, about the same time, chosen Chancellor of Maryland. He accepted the latter office and returned his com- mission as Associate Justice. James Iredell was appointed in his place. The Court was first opened for the transaction of business February 2, 1790. Of John Jay, Mr. Webster said : " When the ^ ,. ^ „ spotless ermine of the judicial robe Jay and Marsnall. '■ * fell upon John Jay it touched noth- ing less spotless than itself." The most distinguished of Jay's successors as Chief-Justice was John Marshall. Of him, Mr. Bryce says : Yet one man was so singularly fitted for the office of Chief-Justice, and rendered such incomparable services in it, that the Americans have been wont to regard him as a special gift of favoring Providence. This was John Marshall, who presided over the Supreme Court from 1801 till his death in 1835, at the age of seventy-seven, and whose fame overtops that of all other American judges more than Papinian overtops the jurists of Rome, or Lord Mansfield the jurists of England. No other man did half so much either to develop the Constitution by expounding it, or to secure for the judiciary its rightful place in the Government as the living voice of the Con- stitution. No one vindicated more strenuously the duty of the Court to establish the authority of the fundamen- tal law of the land, no one abstained more scrupulously THE JUDICIARY 317 from trespassing on the field of executive administration or political controversy. The admiration and respect which he and his colleagues won for the Court remain its bulwark : the traditions which were formed under him and them have continued in general to guide the action and elevate the sentiments of their successors. ' And again : He grasped with extraordinary force and clearness the cardinal idea that the creation of a National Government implies the grant of all such subsidiary powers as are requisite to the effectuation of its main powers and pur- poses, but he developed and applied this idea with so much prudence and sobriety, never treading on purely political ground, never indulging the temptation to the- orize, but content to follow out as a lawyer the conse- quences of legal principles, that the Constitution seemed not so much to rise under his hands to its full stature, as to be gradually unveiled by him till it stood revealed in the harmonious perfection of the form which its framers had designed. ' The Court is now composed of nine Justices. The Chief-Justice presides, and receives a salary of $10,500 per annum. The Associate ^^^^ ^^^ j^^^ Justices receive $10,000. Tt'he jus- *^'^^' tices are appointed by the President and con- firmed by the Senate, as are all the judges of the inferior United States Courts. In the Con- vention the Virginia plan was that Congress ' Bryce : The American Commonwealth, vol. i., p. 261. "Ibid., p. 375. 318 THIS COUNTRY OF OURS should appoint them. Mr. Madison suggested that the Senate should appoint, and Mr. Wilson was for their appointment by the President. The Convention finally agreed unanimously to the pro- vision as it stands. The justices of the Supreme Court and all the judges of the lovrer United States Courts hold Tenme and retire- t^i^ir offices, as we commonly Say, "*"'• for Ufe. The Constitution says: "Shall hold their offices during good behavior." They can be removed from office only by the process of impeachment. In England a judge of the Supreme Court of Judicature may be removed by the Crown upon the request of both houses of Parliament. There is no age limit of service, and Congress has no power to prescribe one. But in view of the fact that age does incapacitate, that its incapacity extends to all active labor, and that a judge might hold on to his office after he was in- capacitated by age if no provision were made by law for his support, Congress passed a law provid- ing that any justice or judge who has served ten years, and has reached the age of seventy, may voluntarily retire, and shall receive the full salary of the office during life. There has been much discussion as to the proper tenure for the judicial office, and the tendency, as expressed in the later State Constitutions, has been THE JUDICIARY 319 in favor of limited terms. The earlier State Con- stitutions generally gave the appointment of the judges to the Governor or to the Leg- j^^.,;,, j,,^^ .^ islature,but along with the demand for "^ ^'***^" limited terms for the judges, came another for their election by the people, and in a majority of the States they are now nominated in the party conven- tions and elected by popular vote, just as a governor or sheriff is chosen. Neither of these changes is a reform. Limited terms, if they are long, may be supported by many considerations ; but short terms, combined with popular elections, have not secured as high a judicial standard as prevailed before. A judge who must go at short intervals before a political convention for a nomination, and before the people for an election, cannot have the same sense of independence and security that he would have if his term were long or during good behavior. The judicial office should be so organ- ized that men of the best abihties and attainments will enter it as a career, and give their lives and their ambitions whoUy to it. When the constitutional organization of the Court had been settled and the high duty of select- ing the justices had been performed n 1 Gowns and wigB. by "Washington, the smaller, but not wholly unimportant, question of a court-dress loomed up, and much agitated and divided the 320 THIS COUNTRY OF OURS minds of our public men. Shall the justices ■wear gowns ? And if yea, the gown of the scholar, of the Eoman senator, or of the priest? Shall they wear the wig of the English judges? Jefferson and Hamilton, who had differed so widely in their views as to the frame of the Government, were again in opposition upon these questions relating to millinery and hair-dressing. Jefferson was against any needless ofBcial apparel, but if the gown was to carry, he said : " For Heaven's sake discard the monstrous wig which makes the Eng- lish judges look like rats peeping through bunches of oakum." Hamilton was for the English wig with the English gown. Burr was for the English gown but against the " inverted wool-sack termed a wig." The English gown was taken and the wig left, and all who see the Court in session will agree that the flowing black silk gowns worn by the jus- tices help to preserve in the court-room that de- corum and sense of solemnity which should always characterize the place of judgment. It would not be profitable to go into great detail as to the jurisdiction of the United States Courts. CaBes. of Federal ^7 readers wiU only desire to know iurisdiction. ^j^^^ general classes of cases are tried in the United States Courts, and to have a general view of the lines that separate between the United States Courts and the courts of the States. THE JUDICIARY 821 Section 2 of Article 3 of the Constitution de- clares that the "judicial power," vested by the preceding section in the Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish, " shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting Ambassadors, other public Ministers and Consuls ; to all cases of admiralty and maritime jurisdiction ; to con- troversies to which the United States shall be a party ; to controversies between two or more States ; between a State and citizens of another State ; between citizens of different States ; be- tween citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects." If you will give this section a second reading you will see that these general principles control : First, the construction and application of the Constitution and laws of the United States must, for the rea- sons already suggested, be left to the courts of the United States. Second, as the representatives of foreign powers are accredited to the United States and may not treat with the State authorities in any way, and as the United States must be answerable 31 322 THIS COUNTRY OF OUES for any injury or indignity to such representatives, cases affecting them must be tried by the courts of the United States. Third, as the regulation of foreign commerce and commerce between the States is given to Congress, and as maritime and admiralty cases may affect international relations, and the decisions in such cases should be stable and uniform, only the courts of the United States can appropriately deal with such questions. Fourth, the United States cannot permit the courts of an- other sovereignty to try cases for or against it — its own courts must obviously determine such cases. Fifth, in cases where the State courts might be, or might be supposed to be, subject to bias by reason of the interest of the State or of its citi- zens in the controversy, to the possible prejudice of another State or of its citizens, or of a foreign State or its citizens, the courts of the United States can give a hearing with greater assurance of impartiality, and, therefore, such persons should have the privilege, if they choose to exercise it, to bring their suits, if they are plaintiffs, in the United States Courts, or to remove them to those courts, if they are sued in the State courts. A citizen of New York may sue a citizen of Ohio in the State courts of Ohio, but if he prefers, may sue in the United States Court for the proper Ohio district. The election is with him, if the THE JUDICIARY 323 jurisdiction of the United States Court depends solely upon the fact that he is a citizen of one State and the defendant of another. But Diverse citizen- •!• 1 • n 1 1-1 T 1 Bhip. Federal if what IS called a " Federal ques- question. tion " is involved — that is, a question arising under the Constitution or laws of the United States — then the citizenship of the parties does not mat- ter, for the subject of the suit gives the United States Courts jurisdiction. If the parties do not in the beginning of such a suit, or by the removal of it after it is brought, seek the proper United States Court, the State court may proceed to try the " Federal question," but after the Supreme Court of the State has passed upon it the case may be taken by writ of error to the Supreme Court of the United States for a final determination. The United States Courts, in the trial of cases, must often construe and apply the consti- Must construe . \^ , state laws— The tution and statutes of a State ; and ™ie. out of this power some conflict has occurred. The rule adopted by the United States Courts, with its exceptions, is comprehensively stated by Justice Bradley, in Burgess v. Seligman (107 U. S., 20), thus : The Federal courts have an independent jurisdiction in the administration of State laws, co-ordinate with, and not subordinate to, that of the State courts, and are bound to exercise their own judgment as to the 324 THIS COUNTRY OF OUES meaning and effect of those laws. The existence of two co-ordinate jurisdictions in the same territory is pe- culiar, and the results would be anomalous and incon- venient, but for the exercise of mutual respect and deference. Since the ordinary administration of the law is carried on by the State courts, it necessarily hap- pens that by the course of their decisions certain rules are established which become rules of property and action in the State, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate, and the con- struction of State constitutions and statutes. Such es- tab) ished rules are always regarded by the Federal courts, no less than by the State courts themselves, as author- itative declarations of what the law is. But when the law has not been thus settled, it is the right and duty of the federal courts to exercise their own judgment ; as they also always do in reference to the doctrines of com- mercial law and general jurisprudence. So, when con- tracts and transactions have been entered into, and rights have accrued thereon under a particular state of the decisions, or when there has been no decision, of the State tribunals, the Federal courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpreta- tion may be adopted by the State courts, after such rights have accrued. But even in such cases, for the sake of harmony and to avoid confusion, the Federal courts will lean toward an agreement of views with the State courts if the question seems to them balanced with doubt. In a case involving the constitutionality of a tax law of Ohio, under the State Constitution, the THE JUDICIARY 325 United States Court for the Sixth Circuit held the law unconstitutional. Afterward the Supreme Court of the State upheld the law, and the United States Court reversed its ruling and followed the State court. No contract rights were involved. The Supreme Court has original jurisdiction of " all eases affecting Ambassadors, other public Ministers and Consuls, and those in original juris- which a State shall be a party." That preme court, is, these cases may be begun in the Supreme Court. Other cases that reach the Supreme Court come, by appeal or writ of error, from one of the inferior courts of the United States or from the Supreme Court of a State. The Constitution gives to Congress, as we have seen, the power to institute such " inferior " courts as may be necessary. The general Circuit and ma- system adopted by Congress estab- '™' ^°'"'^- lishes the District Courts, the Circuit Courts, and the Circuit Courts of Appeals, the latter having been recently created. There are other special courts, such as the Court of Claims, the Courts of the District of Columbia, etc. The District Court is composed of a single judge, and the district of the whole or a specified part of a State. There is generally one district judge for each district, but to this rule there is an exception or two, there being now sixty-eight districts and sixty-five dis- 326 THIS COUNTRY OF OURS trict judges. When the courts were first insti- tuted (1789) there were thirteen districts. In 1801 provision was made for dividing the districts into six circuits, and for the appointment of three cir- cuit judges each for five of them. In the follow- ing year this law was repealed, and a law enacted establishing six circuits, the courts to be held by one of the justices of the Supreme Court and the District Judge. Ill 1837 the number of the associate justices of the Supreme Court was increased from five (the Changes in Original number) to eight, and nine ticeB. Circuits were established — one for each associate justice and one for the Chief- Justice. In 1863 an additional associate justice was pro- vided for, and ten circuits were established, the policy having generally been to have as many cir- cuits as there were justices of the Supreme Court — the Chief -Justice and each associate justice being assigned to a particular circuit — and to have the justices sit in the Circuit Courts when their other duties would permit. In 1866 the number of as- sociate justices was reduced to six, and in 1869 was increased to eight. There were no circuit judges until 1869, when one was provided for each circuit ; the Circuit Court being before held by the district judges, and an associate justice of the Supreme Court when he could be present. And THE JUDICIAEY 327 even now a large part of the business of the Cir- cuit Courts is transacted by the district judges sitting alone. The exact division in jurisdiction between the District and Circuit Courts of the United States cannot be briefly stated, but it will be enough to say that the Circuit Court has juris- diction generally of cases in law and equity, cogniz- able in the United States Courts, where the amount involved, exclusive of interest and costs, is $2,000. It also has a criminal jurisdiction. The jurisdic- tion of the District Courts chiefly embraces criminal cases, admiralty cases, bankruptcy proceedings, suits for penalties, and the like. In 1891 Circuit Courts of Appeals were estab- lished. The law provides for the appointment of an additional circuit judge in each q^^^jj courts judicial circuit, and creates a Court «' Appeals. of Appeals, to consist of three judges. The Jus- tice of the Supreme Court assigned to each circuit, and the Circuit and District Judges of each circuit are made competent to sit as judges in the new court, the Justice presiding, or in his absence the senior Circuit Judge. The judge who tried the case below is made incompetent to sit in the hearing of the appeal. This court was insti- tuted to relieve the Supreme Court of the United States from an accumulation of business that rendered the prompt decision of cases impossible. 328 THIS COUNTRY OF OURS An appeal or writ of error direct from the Circuit Court or District Court to the Supreme Court is reserved in cases involving the jurisdiction of the court, final sentences in prize cases, convictions of a capital or other infamous crime, cases involving the construction or application of the Constitution of the United States, or in which the constitu- tionality of a law of the United States, or of a treaty, is drawn in question, and cases in which the Constitution or laws of a State are claimed to be in contravention of the Constitution of the United States. The Circuit Court of Appeals is given jurisdiction of other appeals. Decisions of the Circuit Court of Appeals are made final in cer- tain cases, in others an appeal is allowed to the Supreme Court of the United States, and the Su- preme Court may order any case pending in the Court of Appeals to be certified to it for a hearing. The Court of Claims was established in 1855, and consists of a chief-justice and four judges. The Court of "'■* ^^*^ ^* Washington and holds one ciaimB. term each year, beginning on the first Monday of December and continuing as long as the business may require. The judges receive an annual salary of $4,500, and hold ofiice durrug good behavior. The jurisdiction of the court, speaking generally, extends to the hearing of claims against the United States — pension claims, war claims, and THE JUDICIARY 329 claims before rejected, being excluded — in cases not sounding in tort, -where the party would be en- titled to redress against the United States, either in a court of law, equity, or admiralty — " if the United States were suable." The United States is not " suable " unless by law it consents to be sued. Before the establishment of the Court of Claims, Congress was burdened by the necessary consideration of vast numbers of private claims for the settlement and payment of which by the de- partments no provision had been made. In some cases the Court of Claims is authorized to enter a judgment — after finding the facts specially — and in other cases, referred to the Court by Congress or by one of the departments, a finding of facts only is made. Judgments of the court cannot, of course, be paid until Congress appropriates money for their payment. The French Spoliation claims, and the Indian Depredation claims — each class involving very numerous claims and very large sums of money in the aggregate — have been sent to the Court of Claims for adjudication. Appeals are allowed to the Supreme Court from the deci- sions of the Court of Claims. The judges of the United States Courts have, with rare exception, been men of excellent legal ability and of high character. The bar has some- times complained that judges were arbitrary, and 330 THIS COUNTRY OF OURS not always as suave and respectful in their treat- ment of the members of the bar as they ought to High character of ^^- Perhaps there has been, in par- Federal judges, ^-g^g^j. gg^ggg^ gTouud for such com- plaints, but the cases have been few. Manifesta- tions of rudeness and passion are inexcusable in a judge. He must be deferential if he expects def- erence. He should be patient and even-tempered, for the case is sure to go his way in his own court. And, on the other hand, the bar should always give its powerful aid to support the influence of the courts, for the Judicial Department is the " keystone " of our Government, and assaults upon it threaten the whole structure of the stately arch. APPENDIX CONSTITUTION OF THE UNITED STATES We the People of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our pos- terity, do ordain and establish this Constitution for the United States of America. ARTICLE I. Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the sev- eral States, and the electors in each State shall have the quali- fications requisite for electors of the most numerous branch of the State Legislature. No person shall be a Representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be deter- mined by adding to the whole number of free persons, includ- ing those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative ; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose 331 332 APPENDIX three; Massachusetts eight; Rhode Island and Providence Plan- tations one; Connecticut five; New York six; New Jersey four; Pennsylvania eight; Delaware one; Maryland six; Virginia ten; North Carolina live ; South Carolina five, and Georgia three. When vacancies happen in the representation from any State, the Executive Authority thereof shall issue writs of election to fill such vacancies. The House of Representatives shall choose their Speaker and other officers ; and shall have the sole power of impeachment. Section 3. The Senate of the United States shall be com- posed of two Senators from each State, chosen by the Legis- lature thereof, for six years ; and each Senator shall have one vote. Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen eveiy second jear ; and if vacancies happen by resignation, or otherwise, during the recess of the Legislature of any State, the Executive tliereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies. No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabi- tant of that State for which he shall be chosen. The Vice-President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided. The Senate shall choose their other oflBcers, and also a President pro tempore, in the absence of the Vice-President, or when he shall exercise the oifice of President of the United States. The Senate shall have the sole power to try all impeach- ments. When silling for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside ; and no person shall be convicted without the concurrence of two-thirds of the mem- bers present. Judgment in cases of impeachment shall not extend further than to removal from oifice, and disqualification to hold and enjoy any office of honor, trust or profit under the United States ; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. APPENDIX 333 Section 4. The times, places and manner of holding elec- tions for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day. Section 5. Each House shall be the judge of the elections, returns and qualifications of its own members, and a ma- jority of each shall constitute a quorum to do business ; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy ; and the yeas and nays of the members of either House on any question shall, at the desire of one-fifth of those present, be entered on the Journal. Neither House, during tlie session of Congress, shall, with- out the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting. Section 6. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same ; and for any speech or debate in either House, they shall not be questioned in any other place. No Senator or Representative shall, during the time for which lie was elected, be appointed to any civil ofBce under the authority of the United States, which shall have been created, or the emoluments whereof shall have been in- creased during such time; and no person holding any oiflce under the United States, shall be a member of either House during his continuance in ofiSce. Section 7. All bills for raising revenue shall originate in the House of Representatives ; but the Senate may propose or concur with amendments as on other bills. Every bill which shall have passed the House of Represent- atives and the Senate, shall, before it become a law, be pre- 334 APPENDIX sented to the President of the United States ; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall like- wise be reconsidered, and if approved by two-thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the hill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sun- days excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, la which case it shall not be a law. Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States ; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations pre- scribed in the case of a bill. Section 8. The Congress shall have power to lay and col- lect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States ; but all duties, imposts and excises shall be uniform throughout the United States ; To borrow money on the credit of the United States ; To regulate commerce with foreign nations, and among the several States, and with the Indian tribes ; To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States ; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures ; To provide for the punishment of counterfeiting the securi- ties and current coin of the United States ; To establish post-offices and post-roads ; To promote the progress of science and useful arts, by secur- ing for limited times to authors and inventors the exclusive right to their respective writings and discoveries ; To constitute tribunals inferior to the Supreme Court ; To define and punish piracies and felonies committed on the high seas, and offences against the law of nations ; APPENDIX 335 To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water ; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years ; To provide and maintain a navy ; To make rules for the government and regulation of the land and naval forces ; To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions ; To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be em- ployed in the service of the United States, reserving to the States respectively, the appointment of the ofiScers, and the authority of training the militia according to the discipline pre- scribed by Congress ; To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by ces- sion of particular States, and the acceptance of Congress, be- come the seat of the Government of the United States, and to exercise like authoiity over all places purchased by the con- sent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dry-docks, and other needful buildings ; — And To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. Section 9. The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thou- sand eight liundred and eight, but a tax or duty may be im- posed on such importation, not exceeding ten dollars for each person. The privilege of the writ of habeas corpus shall not be sus- pended, unless when in cases of rebellion or invasion the pub- lic safety may require it. No bill of attainder or ex post facto law shall be passed. No capitation, or other direct, tax shall be laid, unless in pro- portion to the census or enumeration hereinbefore directed to be taken. No tax or duty shall be laid on articles exported from any State. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another ; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another. No money shall be drawn from the Treasury, but in con- 336 APPENDIX sequence of appropriations made by law ; and a regular state- ment and account of the receipts and expenditures of all public money shall be published from time to time. No title of nobility shall be granted by the United States. And no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any pres- ent, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. Section 10. No State shall enter into any treaty, alliance, or confederation ; grant letters of marque and reprisal ; coin money ; emit bills of credit ; make anything but gold and silver coin a tender in payment of debts ; pass any bill of at- tainder, fiE 'post facto law, or law impairing the obligation of contracts, or grant any title of nobility. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws ; and the net produce of all duties and imposts, laid by any State on im- ports or exports, shall be for the use of the Treasury of the United States ; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually in- vaded, or in such imminent danger as will not admit of delay. ARTICLE II. Section 1. The executive power shall be vested in a Presi- dent of the United States of America. He shall hold his office during the term of four years, and, together with the Vice- President, chosen for the same term, be elected, as follows : Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress ; but no Senator or Represent- ative, or person holding an office of trust or profit under the United States, shall be appointed an elector. [The electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the num- ber of votes for each, which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. The President APPENDIX 337 of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electoi's appointed, and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President ; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote ; a quorum for this purpose shall consist of a member or members from two- thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice-President.] * The Congress may determine the time of choosing the elec- tors, and the day on which they shall give their votes ; which day shall be the same throughout the United States. No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitu- tion, shall he eligible to the office of President ; neithel: shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resi- dent within the United States. In case of the removal of the President from oflSce, or of his death, resignation, or inability to discharge the powers and du- ties of the said office, the same shall devolve on the Vice- President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the Presi- dent and Vice-President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall he elected. The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor dimin- ished during the period for which he shall have been elected, and he shall not receive within that period any other emolu- ment from the United States, or any of them. Before he enter on the execution of his office, he shall take the following oath or affirmation : " I do solemnly swear (or affirm) that I will faithfully exe- cute the office of President of the United States, and will to • This clause is EuperBeded by Article XII., Amendments. 338 APPENDIX the best of my ability, preseTve, protect and defend the Con- stitution of the United States." Section 2. The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States ; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of Impeachment. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Sena- tors present concur ; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassa- dors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appoint- ments are not herein otherwise provided for, and which shall be established by law ; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of de- partments. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting com- missions which shall expire at the end of their next session. Section 3. He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient ; he may, on extraordinary occasions, convene both Houses, or either of them, and, in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper ; he shall receive ambassadors and other public ministers ; he shall take care that the laws be faithfully executed, and shall commis- sion all the officers of the United States. Section 4. The President, Vice-President, and all civil offi- cers of the United States, shall be removed from office on Impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. ARTICLE ni. Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated APPENDIX 339 times, receive for their services, a compensation, whicli shall not be diminished during their continuance in office. Section 3. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting ambassadors, other public ministers and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States ; between a State and citizens of another State ; be- tween citizens of different States ; between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before-mentioned, the Supreme Court shall have appellate juris- diction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeacliment, shall be by jurjr ; and such trial shall be held in the State where the said crimes shall have been committed ; but when not com- mitted within any State, the trial shall be at such place or places as the Congress may by law have directed. Section 3. Treason against the United States, shall con- sist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person at- tainted. ARTICLE IV. Section 1. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. Section 2. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found m another State, shall, on demand of the executive authority of the State 340 APPENDIX from ■which he fled, be delivered up to be removed to the State having jurisdiction of the crime. No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. Section 3. New States may be admitted by the Congress into this Union ; but no new State shall be formed or erected within the .-jurisdiction of any other State ; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned as well sis of the Congress. The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States ; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. Section 4. The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion ; and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence. ARTICLE V. The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitu- tion, or, on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing amend- ments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by con- ventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress ; Provided that no amendment which may be made prior to the year one thou- sand eight hundred and eight shall in any manner affect the first and fourth clauses in the Ninth Section of the First Arti- cle ; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. ARTICLE VL All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Con- federation. APPENDIX 341 This Constitution, and- the laws of the United States which shall be made in pursuance thereof ; and aill treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ; and the judges in every Slate shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all execu- tive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation, to support this Constitution ; but no religious test shall ever be required as a qualification to any office or public trust under the United States. ARTICLE VIL The ratification of the Conventions of nine States, shall be sufficient for the establishment of this Constitution between the States so ratifying the same. AMENDMENTS TO THE CONSTITUTION ARTICLE I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ; or abridging the freedom of speech, or of the press ; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. ARTICLE II. A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed. ARTICLE III. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribted bj'^ law. 342 APPENDIX ARTICLE IV. The right of the people to be secure In their persons, houses, papers, and effects, against unreasonable searches and seiz- ures, shall not be violated, and no wan-ants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the per- sons or things to be seized. ARTICLE V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ; nor shall be compelled in any .criminal case to be a witness against him- self, nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use, without just compensation. ARTICLE VI. In all criminal prosecutions, the ^accused shall enjoy the right to a speedy and public trial, .by an impartial jury of the State and district wherein the crime shall have been com- mitted, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the ac- cusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. ARTICLE VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise. re- examined in any. court of the United States, than according