a HI CORNELL UNIVERSITY LIBRARY BOUGHT WITH THE INCOME OF THE SAGE ENDOWMENT FUND GIVEN IN 1891 BY HENRY WILLIAMS SAGE DATE DUE PT'iBliiiii '^' ■ *'~--' ■-■■*»- j« . t L. U ■ nmmrnqj CAVLOKO PRINTCOINU.B A. Cornell University Library JK241 .F75 Commentaries on «he Constitution of ^^^^ olin 3 1924 030 454 957 W ^ Cornell University WJ/3 Library The original of tiiis 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/cu31924030454957 COMMENTARIES ON THE Constitution of the United States HISTOEICAL AND JURIDICAL OBSERVATIONS UPON THE ORDINARY PROVISIONS OF STATE CONSTITUTIONS AND A COMPARISON WITH THE CONSTITUTIONS OF OTHER COUNTRIES. BY ROGER FOSTER, OF THE KEW TOBK BAB, Author of A Tkeatise on Federal Practice, Trial by Newspaper, &c. AND Lecturer on Federal Jurisprudence at the Law School of Yale University. Volume I. BOSTON: THE BOSTON BOOK COMPANY. 1895. s ^7^ CJOPYRIGHT, 1895, BY EoGEB Foster. The, right oftramslation and all other rights reserved. Typography and Presawarje BT Carl H. Heistzemakn, Bostoh, Mass. TO THE HONORABLE MELVILLE W. FULLER Chiep-Jtjsticb of the United States AS A SLIGHT TRIBUTE TO HIS LEARNING, PATIENCE AND COURTESY THIS BOOK IS BY HIS PERMISSION EESPECTFULLY DEDICATED CONTENTS. CHAPTEE I. INTBODTJOTION. § 1- § 2. § 3. § 4- § 5- § 6. § 7. § 8. § 9. §10. Paper Constitutions Hostility to the Federal Constitution . Anarchy preceding the Federal Convention . Previous Attempts at Union Preliminaries to the Federal Convention Originality of the Work of the Federal Convention Prototypes of the Federal Constitution Models of the Federal Constitution Compromises of the Constitution .... Result of the Federal Convention . Appendix to Chapter I. John Lllburne and the Agreement of the People . Page 1 3 6 12 19 22 27 38 41 45 CHAPTER II. NATUBE OP THE CONSTITUTION AND THE PKEAMBLB. § 11. Nature of the Constitution of the United States . § 12. Sovereignty of the States before the Federal Constitution . § 13. The Constitution was formed by the Thirteen States . § 14. Form of Eatifications of the Constitution .... § 15. Legality of an Indissoluble Union between Sovereign States § 16, The Constitution is not a Legal Compact .... § 17. Proceedings in Federal Convention as to the Determination of the Form of the New Government § 18. History of the Preamble § 19. Significance of the Phrase'*'We the people of the United States ' § 20. Signiflcancfi of the Phrase "to form a more perfect Union." § 21. Significance of the Phrase "to Establish Justice " § 22. Significance of the Phrase " to Insure domestic Tranquillity " § 23. Significance of the Phrase "to provide for the Common Defense ' § 24. Significance of the Phrase "to promote the general welfare' § 25. Significance of the Phrase "to secure the Blessings of Liberty" §26. Signifleanee of the Phrase "Ordain and Establish" . § 27. Significance of the Word " Constitution " §28. Significance of the Phrase Signiflcancfi of the Phrase ' Significance of the Phrase ' Significance of the Phrase ' Significance of the Phrase ' Significance of the Phrase ' Significance of the Phrase ' Signifleanee of the Phrase ' Significance of the Word ' Testimony of Contemporary Statesmen on the Nature of the Consti- tution 104 61 63 70 70 73 75 80 92 94 96 97 98 99 99 100 100 103 n COXTE^TS. § 29. Judicial Decisions as to tlie Nature of the Constitution § 30. Justification for Belief in Legality of Secession . § 31. Early Assertions of the Eight of Secession . § 32. Virginia and Kentucky Kesolutions § 33. The Doctrine of NuUiflcation ... § 34. History of Nullification ... • • § 35. Constitutional Aspects of Slavery .... § 36. History of Secession § 37. Constitution^ History of the Southern Confederacy § 38. Eeconstruction § 39. Seat of Sovereignty in the United States § 40. Sovereign Powers of the United States in General § 41. State Sovereignty and State Eights Page . 108 . 110 . 116 . 119 . 125 . 145 . 158 . 163 . 186 . 205 . 269 . 270 . 273 Appendix to Chaptee n. An Act Concerning Aliens 279 The Sedition Law ... 281 Virginia Eesolutions of 1798 282 Kentucky Eesolutions of 1798 285 Kentucky Eesolutions of 1799 291 First Ordinance of Nullification 293 Second Ordinance of Nullification . 296 CHAPTEE in. THE THBEE DEPARTMENTS. § 42. The three Departments of the Government of the United States . 297 § 43. History of the Classification of Governmental Powers . . . 299 § 44. Eeasons for the Separation of the Three Powers 302 § 45. Equilibrium of the Three Departments in the United States . . 303 CHAPTEE IV. CONGRESS IS GENERA!/. § 46. Limited Powers of Congress . 306 § 47. Origin of Congress 307 § 48. Proceedings in Convention as to the Composition of Congress . . 312 CHAPTEE V. TERM OP MEMBERS OF THE HOrSE OP KEPEESENTATIV^. § 49. Term of Members of the House of Eepresentatives .... 316 CHAPTEE VI. THE BIGHT OP SUFPBAGE. § 50. Provisions in the Federal Constitution concerning the Eight of Suffrage gj^ § 51. History of Constitutional Provisions as to the Eight of Suffrage . 319 § 52. The Fifteenth Amendment 325 § 53. The Power of Congress over the Eight of Suffrage .... 330 CONTENTS. vn Page § 54. Limitations of the Federal Constitution on the Power of the States over the Bight of Suffrage 332 § 55. Usual Provisions of State Constitutions as to the Eight of Suffrage . 336 § 56. Constitutionality of Registration Laws 340 § 57. Minority Representation 343 § 58. The Ballot 344 § 59. General Observations upon the Eight of Suffrage .... 347 CHAPTEB VII. NEOBSSABT QTTAIiIEICATIONS FOB SENATOBS AND EEPEESENTATIYBS. § 60. Constitutional Provisions concerning Qualifications of Members of Congress 355 § 61. History of Provisions concerning Qualifications of Members of Con- gress 356 § 62. Congressional Decisions on Qualifications of Senators and Represen- tatives 362 CHAPTER VIII. APPOETIONMBNT OF EEPEESBNTATIVES AND DIEBCT TAXES. § 63. Constitutional Provisions concerning Apportionment of Representa- tives and Direct Taxes 369 § 64. History of the Clause concerning the Apportionment of Representa- tives and Direct Taxes 370 § 65. Manner of Apportionment ■ . . . . 393 § 66. Revision of Apportionments by the Courts 398 § 67. The Census 410 § 68. History of the Apportionment of Direct Taxes under the Constitution 413 § 69. Direct Taxes ^ 415 Appendix to Chapteb VIII. Jefferson's Opinion on the Apportionment of 1792 .... 424 Webster's Report to the Senate on the Apportionment of 1832 . . 430 CHAPTEB IX. vacancies in the house of bbpeesentatives and besignations fbom congbbss. § 70. Vacancies in the House of Bepresentatives 447 § 71. Besignations from Congress 448 CHAPTEB X. SPEAKBE AND OTHBB OFFIOBBS OP THE HOITSE OF BEPBESENTATIVES. § 72. The Speaker of the House 451 § 73. Other Officers of the House 455 CHAPTEE XI. THE SENATE. § 74. Constitutional Provisions concerning the Senate 457 § 75. Origin of the Senate *59 VIU CONTENTS. § 76. Proceedings in the Federal Convention concerning the Composition of the Senate § 77. Senatorial Elections § 78. Classification of the Senate . § 79. Filling Vacancies in the Senate § 80. General Observations on the Senate Page 466 . 472 . 483 . 484 . 491 CHAPTER XII. THE PEBSIDENCY AND OFFICBBS OP THE SENATE. § 81. Constitutional Provisions Concerning the Presidency and Officers of the Senate 499 § 82. History of the Provisions as to the Presidency and Officers of the Senate 499 § 83. Powers of the Vice-President over the Senate . ... 500 § 84. The President pro tempore of the Senate . .... 502 § 85. Other Officers of the Senate 504 CHAPTER XIII. IMPEACHMENT. §86. §87. §88. §89. §90. §91. §92. §93. §94. §95. §96. §97. §98. §99. §100. §101. §102. §103. §104. §105. §106. § 107. §108. §109. §110. § Ill- Provisions of the Constitution concerning Impeachment Origin of Impeachments Proceedings in the Convention as to Impeachment . Reasons for the Trial of Impeachments by the Senate History of Impeachments before the Senate of the United Persons Subject to Impeachment. Impeachment after Expiration of Official Term . Impeachable Offences Convictions upon Impeachment in the United States Causes for which Public Officers may be Removed Removal of Judges Preliminary Proceedings on Impeachments Articles of Impeachment Service of Process on Impeachment Managers of Impeachment and Counsel for Prosecution Swearing of the Senate . . ... Appearance of the Accused . ... Pleadings of the Respondent .... Replication Proceedings on the Trial of an Impeachment Evidence upon Impeachment Trials Arguments of Counsel Decision upon Impeachment .... Imposition of Penalty upon Conviction Pardons to Impeachments Concluding Observations on Impeachments States 505 506 508 512 529 566 574 581 600 602 605 606 607 610 612 612 613 614 616 616 619 621 622 626 628 630 APPENDIX TO VOL. I. State Impeachment Trials . . 633 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, HISTOEICAL AND JURIDICAL. CHAPTER I. INTRODUCTION. § 1. Paper Constitutions. Paper constitutions have been the target for the ridicule of most writers during the present century who have thought themselves political philosophers. Unstable as watei-, they can- not excel, has been the judgment upon them by historians.-' " Have you a copy of the French Constitution?" was asked of a bookseller during the second French Republic. " We do not deal in periodical literature," was the reply.^ In the United States, and only in the United States, has a written constitution survived a hundred years, while during the same time the forms of the gov- ernments of all other nations have changed more often and more radically than have their respective boundaries. What are the § 1. 1 As late as 1814, even Gouver- means, will only render It more out- neur Morris was sceptical. He wrote, rageous. The idea of binding legis- in a letter to Timothy Picliering, Dec. lators by oaths is puerile. Having 22, 1814 : — sworn to exei-cise the powers granted, "But, after all, what does it sig- according to their true intent and nify that men should have a written meaning, they will, when they feel a constitution, containing unequivocal desire to go farther, avoid the shame, provisions and limitations ? The leg- if not the guilt, of perjury, by swear- islative lion will not be entangled in Ing the true intent and meaning to the meshes of a logical net. The leg- be, according to their comprehension, islature vdll always make the power that which suits their purpose." which it wishes to exercise, unless it ^ In the preceding century a similar be so organized as to contain within question was answered by the offer of Itself the sufficient cheoli. Attempts the Almanach Eoyal. to restrain it from outrage, by other 1 2 INTKODUCTIOX. [CHAP. I- reasons for this phenomenon ? How man}' of them are to be found in preceding history? How many in geographical position ? How has the Constitution been affected by the origin of the colonists ? How much by the subsequent immigration from all parts of the Old World ? To what extent has the Constitution been altered, besides the acknowledged changes contained in the fifteen amendments ? What are the advantages of this form of government? What benefits has it secured? What abuses has it perpetuated? What evils has it prevented? How far is it suitable to other countries ? Why have its imitations failed in South and Central America ? The answers to these questions should be of use to our own countrymen in order to show them what rules must be observed to preserve the stability of our institutions. In the constant re- making of the constitutions of Europe, South America, and even Asia, Africa, and the Pacific islands, they should teach statesmen the pitfalls to avoid and the patlis to seek for the permanent security of both liberty and property. These can be found only by an exhaustive study of the precedents which are landmarks of the progress in the development of the Constitution of the United States before as well as since its adoption. They lead from the forests of Germany in the time of Tacitus, over the island of Runnymede and the rock at Plymouth, beyond the apple-tree at Appomatox into the old Senate Chamber at Washington, where Chief Justice Fuller sits with liis associates. They were the result of conflicts with the sword, the pen, and the tongue, in the field, the press, the senate, and the court. Amongst their builders are enrolled the names of Simon de Montfort, Coke, Eliot, Hamp- den, Lilburne, Milton, Shaftesbury, Locke, Wilkes, Jefferson, Hamilton, Marshall, Webster, and Lincoln. They present the spectacle of the struggles of a people to obtain civil and religious liberty for themselves, to extend them to those of another and despised race, and now to combine them with the rights to un- governed labor and complete security for private property. Dry as the account must be in a summary wliich omits a description of the battles, and does not contain the periods of eloquence and passion used by the combatants on either side of the disputes thus decided, the facte cannot fail to be of interest to all who take the pleasure of the antiquary in tracing the origin of present § 2.] HOSTILITY TO THE FEDERAL CONSTITUTION. 3 customs, or who desire from the study of the past to shape the future for the advance of man. § 2, Hostility to the Federal Constitution. It was well said by John Quincy Adams that the Constitution was " extorted from the grinding necessity of a reluctant nation." ^ It was accepted by a small majority as the only alternative to dis- ruption and anarchy. Its ratification was the success of the men who were interested in the security of property, the maintenance of order, and the enforcement of obligations against those who desired communism, lawlessness and repudiation. It was a con- flict between the cities and the backwoodsj between -the moun- tains and the plains.^ And the opposition was led by those cliques and families who had learned to control for their private in- terests the state patronage of which the new government must necessarily deprive them.^ The battle was waged on the stump and by pamphleteering, and gave birth to that great repository of political science. The Federalist.* Two States refused to agree until after it had gone into successful operation, and the rest threatened severe retaliation in order to compel their coalition. Five of the other nine ratified with expressions- of disapproval of its terms and a demand for subsequent amendments.^ In but three® was it adopted with- § 2. 1 Jubilee of the Constitution, sylvania and The Federal Constitu- by John Quincy Adams, p. 55. tion. The latter contains one which 2 For an analysis of the vote on the seems to have had more Influence ratification of the Constitution, see than any except the Federalist: The The Geographical Distribution of the New Koof, by Francis Hopkinson ; an vote on the Federal Constitution, by excellent imitation of Swift's Tale of 0. G. Libby ; Bulletin of the TJniver- a Tub. sity of Wisconsin, vol. i. No. 1. ' Massachusetts, South Carolina, 3 See Letters of a Landholder, by New Hampshire, Virginia, New York. Oliver Ellsworth, afterwards Chief ^ New Jersey, Delaware, and Geor- Justice of the United States, Letter ii. gia. The last needed protection from Ford's Essays on the Constitution, an Indian war then threatened ; the pp. 144, 176. others, relief from the State imposts * Valuable collections are Pamph- at New York and Philadelphia. Dela- lets on the Constitution, and Essays ware, moreover, which was even then on the Constitution, edited by Paul a pocket borough, welcomed the po- Leicester Ford. Others may be found litical advantage of the permanent in McMaster and Stone on Penn- security of two seats in the Senate. INTEODUCTION. [CHAP. out a struggle. In several, success was only obtained by the application of force, threats, or stratagem. In Connecticut, they silenced with tar and feathers an anti-federalist delegate who tried to talk out the Convention.^ A majority of the New Hampshire delegates were determined or instructed to vote against ratification, and at the first session the federalists considered a vote for an adjournment of three months a victory. At the second, while some of its opponents were "detained" at dinner, the Constitution was ratified by a snap vote, taken at sharp one o'clock.* The legis- lature of Pennsylvania obtained a quorum to call the State Con- vention by the unwilling presence of two members, dragged to the meeting by a mob who prevented their leaving the house.^ In the State of New York, a majority of the Convention was anti-federal ; and victory was won by the threat of Hamilton, that in case of defeat New York, Kings, and Westchester would ratify the Constitution as an independent state and leave the northern counties alone unprotected from foreign enemies, without any outlet for their commerce to the sea.^" The charge was believed, if not ' My authority for this is that ac- complished student of American his- tory, Paul Leicester Ford, Esq., from whom I have also received other valuable information as to the history of this period. 8 A contemporary undated indorse- ment on a letter of April 23, 1788, by Paine Wingate to John Sullivan, Presi- dent of New Hampshire, says : " You see that all the members did not vote, only 104. The others, Timothy Walker detained at his home in this city, after he had given them a dinner, to prevent them from voting — or a number of them." New Hamp- shire State Papers, vol. xxl, p. 851. The means of detention are unknown. Ac- cording to tradition, Judge Walker refused to admit the messenger sent by the Convention to summon the ab- sent members, and when the latter persisted, threatened to set the dogs on him. For this information the writer is indebted to the historian of the Convention, Hon. Joseph B. Walker. Daniel Webster's father, Capt. Pelatiah Webster, was a mem- ber of the Convention, and in his old age repeated to his family a speech v?hich he claimed that he delivered when he voted for the Constitution (Curtis, Life of Webster, vol. i, p. 10, note). The records show, however, that his constituents Instructed him to oppose ratification, and that he did not vote upon the question. (Walker, New Hampshire and the Federal Convention.) 8 A report of the proceedings and debate is to be found in Proceed- ings and Debates of the General Assembly of Pennsylvania, taken in shorthand by Thomas Lloyd, Phila- delphia, 1787, vol. i, p. 115 ; reprinted and corrected in Pennsylvania and the Federal Constitution, by John Bach McMaster and Frederick D. Stone, ch. ii, pp. 27-73. i" Letter of George Clinton to John § 2.] HOSTILITY TO THE FEDERAL CONSTITUTION. 5 proved, tliat the Federalists prevented the circulation of the news- papers of the opposition with the mails.^^ And in Pennsylvania and Maryland they suppressed, by purchase and boycott, the reports of the debates in the State Conventions.^^ The Federal Convention itself held its debates in secret for fear lest the public should become so excited that there would be no hope of any successful result of the deliberations. Twice at least was it on the point of breaking up in despair. So little hope did there seem of any practical result, that at last the sceptic Franklin advised his colleagues to take refuge in prayer.^^ Even at the end, it was the belief of the strongest supporters of the Constitution, that it could not hold the country together for more than a few years.^* Elements of discord abounded in that small assembly. The States which were prominent in wealth and population protested against the injustice of vesting the control elsewhere than in a majority of population or of property. The smaller States, which in the Continental Congress and under the Confederation had an equal vote, insisted that they would never surrender the right which they had thus obtained. The communities Lamb, Clinton MSS., New York State as to construct a palace on the sur- Library. face of the sea." In the same letter, 11 Pennsylvania and The Fede- Morris said of Hamilton : "General ral Constitution by McMaster and Hamilton had little share in forming Stone. the Constitution. He disliked it, be- 12 Ibid. My information as to lieving all republican governments Maryland is also derived from Mr. to be radically defective. He ad- Ford, mired, nevertheless, the British Cou- 13 Madison Papers, Elliot's Debates, stitution, which I consider an aris- 2d ed., vol. v, p. 253. tocraoy in fact, though a monar- 1* Gouverneur Morris wrote Walsh, chy in name. . . . He heartily Feb. 5, 1811: "Pond, however, as assented, nevertheless, to the Consti- the founders of our national Constitu- tution, because he considered it as a tion were of republican government bond which might hold us together they were not so much blinded by for some time, and he knew that their attachment as not to discern national sentiment is the offspring of the difficulty, perhaps impractioabil- national existence. He trusted, ity, of raising a durable edifice from moreover, that in the changes and crumbling materials. History, the chances of time we should be in- parent of political science, had told volved in some war, which might them that it was almost as vain to strengthen our union and nerve the expect permanency from democracy executive." See infra, § 8, note 2. 6 INTRODUCTION. [CHAP. I. of slaveholders refused consent to any provisions which en- dangered their right of property in human chattels. The de- scendants of the Puritans in the North had conscientious scruples against the recognition of the legality of slavery. The recol- lection of the oppressions by the Stuarts and the Guelphs and the history of the fall of the republics of Greece and Italy caused a fear in some that any elements of strength which might be vested in the government of the whole would be used as in- struments for the suppression of liberty in all its parts. The contemptible position of the United States at home and abroad ; their inability to enforce obedience to their laws, to pay their debts, to collect revenues, to negotiate treaties of commerce with foreign governments, and to protect either the individual States or their own Congress from domestic violence, inspired in others the belief that liberty was of far less consequence than stability and security, and made them seek as far as possible to strengthen the central government and remove it from the control of the people. The Constitution was based on compromises, but the results of those compromises have proved so salutary, that but one of them has hitherto been overthrown. § 3. Anarcliy preceding- tlie Federal Convention. The reaction from the patriotism wliich carried the Revolution to a successful termination left the people of the United States in the most contemptible position that they have ever occupied. The Articles of Confederation gave Congress power to incur debts, but no means of pajdng them, except such as might be derived from the voluntary contributions of the several States to meet the requisitions imposed which it could vote but not collect.^ The result was a bankruptcy of the common treasury, due to a refusal of many States to supply the funds necessary to pay the arrears due to creditors at home and abroad, even to the soldiers who had § 3. 1 Between 1782 and 1787, New whole ; and New York, which derived Hampshire, North Carolina, South a large revenue from an impost, more Carolina and Georgia paid no taxes. than their respective quota. (Ham- Connecticut and Delaware one-third ; ilton, in the New York legislature in Massachusetts, Ehode Island, and favor of a national impost, 1 American Maryland about one-half ; Virginia Museum, 445-448.) three-fifths ; Pennsylvania nearly the § 3.J AiJ'AECHY PKECBMNG THE FEDERAL CONVENTION. 7 risked their lives and wasted their estates in the struggle with Great Britain. The need of a federal judiciary had been pain- fully apparent throughout the war, from the technical inconven- iences caused by the condemnation of prizes in State courts of admiralty, some of whom would not respect acts of Congress un- less first adopted by the individual State legislatures. After the war, the observance of those articles of the Treaty of Peace which protected the property of the Tories and debts due British sub- jects, was prevented by acts passed by the State legislatures in opposition to them, which in many instances the State courts respected. This gave Great Britain an excuse for keeping garri- sons in different posts of the United States and in refusing to conform to other articles by which she was bound. At the same time the debtor class, which had been such an important factor in the revolution,^ manifested a similar desire to avoid payment of debts due citizens of the United States.^ Stay laws which im- peded the collection of judgments, tender laws which permitted debtors to meet their obligations in State bills of credit or land or commodities, at a valuation fixed by juries, and other impedi- ments to creditors, were passed by different legislatures. Many debtors were not satisfied with these palliatives. They demanded nothing short of the cancellation of indebtedness and the destruc- tion of all rights of property. Men re-echoed the doctrines of the levellers * in Cromwell's army and applauded the tale in Plutarch of the King of Lacedaemon who burned all promissory notes in the market-place of Sparta.^ Conventions were held where it was claimed that all property ought to be held in common, because all 2 See Sumner's Life of Hamil- so that the creditors could hot use ton, pp. 47-52. John Adams records legal process to collect what was due that, on his return from Congress in them. Attempts were made to drive 1774, an old client warmly congratu- Jackson from the State for taking lated him upon the glorious work of collection cases ; but he was not to be Congress in once more suspending the intimidated, and so obtained an as- courts. Works, vol. ii, p. 420. sured practice at his start. Kendall's 3 When Andrew Jackson moved to Life of Jackson, pp. 89-90. West Tennessee in 1788, he found but * The name was then in common one other lawyer there. The latter use. See Lettersof a Federal Farmer, had been retained by the members by B. H. Lee, p. 37 ; Ford's Pamph- of the debtor class, who were very lets on the Constitution, p. 32. powerful in that frontier community, ^ Plutarch's Lite of Agis. INTEODUCTION. [CHAP. I. had aided in saving it from confiscation by the power of England. Taxes were voted to he needless burdens, courts of justice to be intolerable grievances, and lawyers a common nuisance.' Inese doctrines were embraced by at least twelve thousand men m the New England States, with correspondents in the South, prepared to enforce them by the ballot if that were practicable, otherwise by an appeal to arnis.^ Such an appeal was made in Massachu- setts in the fall of 1786, by the outbreak knoAvn as Shay's Rebel- lion. Fifteen hundred men under the leadership of Captain Daniel Shay met in the counties of Worcester and Hampsliire. The courts of justice were the first objects of their attack, and their sessions were forcibly closed. When the first body of mditia met them on the field, many of the militiamen changed sides and joined the insurgents. Congress had no power under the Articles of Con- federation to afford relief.^ When the rebellion was threatened it refused even the loan of arms.^" When the civil war broke out 8 See Madison's remarks in the Federal Convention. Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 463. ' Curtis' Constitutional History of the United States, vol. i, p. 181. 8 This was the estimate of General Knox. See a letter from "Washington to Madison, Washington's Works, 1st ed., p. 207, cited by Curtis, ibid., vol. i, p. 184. At about the same time attempts similar to that of Shay were made in New Hampshire, Vermont, Connecticut, and Maryland. ^ "A power to interfere in the in- ternal concerns of a State could only have been exercised by a broad con- struction of the third of the Articles of Confederation, which was in these words : ' The said States hereby sev- erally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and gen- eral welfare; binding themselves to assist each other against all force of- fered to or attacks made upon them, or any of them, on account of relig- ion, sovereignty, trade, or any other pretence whatever.' When this Is compared with the clear and explicit provision in the Constitution, by which it is declared that ' the United States shall guarantee to every State in this Union a republican form of government,' there can be no wonder that a doubt was felt In the Congress of 1786-87 as to their powers upon this subject. It is true that the Massa- chusetts delegation, when they laid before Congress the measures which had been taken by the State govern- ment to suppress the insurrection, expressed the confidence of the legis- lature that the firmest support and most effectual aid would have been afforded by the United States, had it been necessary, and asserted that such support and aid were expressly and solemnly stipulated by the Ar- ticles of Confederation (Journals, xii, 20, March 9, 1787). But this was clearly not the case ; and it was not generally supposed in Congress that the power existed by implication." Ibid., p. 178, note 1. 10 When the insurrection was threat- § 3. J ANAKCHY PEECBDING THE FEDERAL CONVENTION. 9 and it seemed as if Shay's followers would win in Massachusetts, and similar attempts were made by debtors to close the courts in other States, a vote passed to raise troops, avowedly for another purpose, who might be used to suppress the insurrection ; " but the success of Governor Bowdoin and the State militia caused the abandonment of the attempt.^^ It was small wonder that Congress hesitated to overleap its powers to afford protection to a State when it had found that it was unable to protect itself. Three years before, a squad of eighty mutineers, justly indignant at not having received their pay, had made the Congress of the United States flee from Philadelphia to Trenton.^^ ened, Massachusetts had asked the loan of sixty pieces of field artil- lery. The application was refused by the negative vote of six States, one being divided, and the delegation from Massachusetts alone supported it. Journals, 65-67, April 19, 1787; Curtis, ibid., p. 182. 11 When Congress received the news of the actual outbreak, taking the excuse of an alleged hostility on the part of certain Indian tribes, they unanimously resolved to raise one thousand three hundred and forty additional troops in the New England States, one-half of them by the State of Massachusetts, to serve for the term of three years, for the protec- tion and support of the western States and the Mississippi settlements, and to secure and facilitate the survey- ing and selling of the public lands; but really for the purpose of aiding the State of Massachusetts in quelling the insurrection. Journals, xi, p. 258, Oct. 30, 1786. Ibid., p. 182. See also Madison Papers, Elliot's Debates, 2d ed., vol. V, p. 95. 12 See Eemarks on the Proposed Plan of a Federal Government, by Al- exander Contee Hanson, afterwards chancellor of Maryland, Ford's Pam- phlets on the Constitution, p. 244. 13 Madison has given the following account of this occurrence : " On the 19th of June," 1783, "Congress re- ceived information from the Executive Council of Pennsylvania that eighty soldiers, who would probably be fol- lowed by others, were on the way from Lancaster to Philadelphia, in spite of the expostulations of their ofBcers, declaring that they would proceed to the seat of Congress and demand jus- tice, and intimating designs against the bank. A committee, of which Colonel Hamilton was chairman, was appointed to confer with the , execu- tive of Pennsylvania, and to take such measures as they should find neces- sary. After a conference, the commit- tee reported that it was the opinion of the executive that the militia of Philadelphia would probably not be willing to take arms before they should be provoked by some actual outrage; that it would hazard the authority of government to make the attempt ; and that it would be neces- sary to let the soldiers come into the city, if the officers who had gone out to meet them could not stop them. The next day the soldiers arrived in the city, led by their sergeants, and professing to have no other object than to obtain a settlement of ac- 10 INTRODUCTION. [chap. Unable to command either the purse or the sword, Congress was abandoned by the ablest statesmen and politicians in the country. The State legislatures alone could raise by taxation the money which they appropriated, and in them and the offices which they created ambitious men preferred to seek employment. Congress was so much despised that it became almost impossible to collect a quorum, and more than twenty-fiye delegates were rarely found there.i* At no time before the Federal Constitution were all the States represented at once.^^ The ill effects resulting from the inability of the United States to regulate commerce were, however, those which were most se- counts, -which they supposed they had a better chance for at Philadelphia than at Lancaster. On the 21st they were drawn up in the street before the State House, where Congress were assembled. The Executive Council of the State, sitting under the same roof, was called on for the proper in- terposition. The president of the State (Dickinson) came in and ex- plained the difficulty of bringing out the militia of the place for the sup- pression of the mutiny. He thought that, without some outrages on per- sons or property, the militia could not be relied on. General St. Clair, then in Philadelphia, was sent for, and desired to use his interposition, in order to prevail on the troops to return to the barracks. But his re- port gave no encouragement. In this posture of things It was proposed by Mr. Izard that Congress should ad- journ. Colonel Hamilton proposed that General St. Clair, in concert with the Executive Council of the State, should take order for terminat- ing the mutiny. Mr. Keed moved that the general should endeavor to withdraw the mutineers, by assuring them of the disposition of Congress to do them justice. Nothing, how- ever, was done. The soldiers re- mained in their position, occasionally uttering offensive words and pointing their muskets at the windows of the hall of Congress. At the usual hour of adjournment the members went out, without obstruction, and the soldiers retired to their barracks. In the evening Congress reassembled, and appointed a committee to confer anew with the executive of the State. This conference produced nothing but a repetition of the doubts concerning the disposition of the militia to act, unless some actual outrage were of- fered to persons or property, the insult to Congress not being deemed a sufficient provocation. On the 24th, the efforts of the State authority being despaired of. Congress were summoned by the president to meet at Trenton." The mutiny was after- wards suppressed by marching troops into Pennsylvania under Major-Gen- eral Howe. Journals, viii, 281. (Cur- tis' Constitutional History of the United States, vol. i, p. 149, note 1.) See also Madison Papers, Elliot's De- bates, 2d ed., vol. v, pp. 92-94. 1* Curtis' History of the Constitu- tion, vol. i, pp. 153, 228. 1^ Keport of a committee appointed to devise means for procuring a full representation in Congress, made Nov. 1, 1783. Journal.s, vol. viii, pp. 480-482, cited by Curtis, ibid., vol. i, p. 154, note. § 3.] ANARCHY PKECEDIKG THE FEDERAL CONVENTION. 11 verely felt. New York and Rhode Island, which contained the principal harbors, had refused, the latter absolutely, the former except on impracticable conditions, to consent to the amendment of the Articles of Confederation so as to permit Congress to tax imports.^® Attempts to negotiate advantageous treaties of com- merce were met by the ministers of foreign countries with the objection that the United States had no power to compel com- pliance with those promises which they made as a consideration for the stipulations binding upon the other parties.^^ The power to threaten as well as to promise was also out of their possession. Great Britain had excluded from her dependencies in the West Indies the fish and other principal exports of the United States ; but Congress had no power to retaliate by discriminating duties upon the cargoes of British ships or an embargo. Wliile Great Britain discriminated against the products of our commerce, Spain blocked the road by preventing the free navigation of the Missis- sippi. Congress, powerless to protect this, which was indispensa- ble to the prosperity of the States west of the Alleghany Mountains, seemed on the point of conceding it in return for commercial ad- vantages of minor importance. ^^ Even the power to regulate trade upon waters wholly within the United States was vested nowhere, unless in a bay or river entirely witliin a single State. The States which had no ports for foreign commerce were oppressed by tolls levied upon them at the places where their goods were shipped. "New Jersey, placed between PMladelphia and New York, was likened to a cask tapped at both ends ; and North Carolina, between Virginia and South Carolina, to a patient bleeding at both arms." ^® 18 Curtis' Constitutional History, i' Madison's Introduction to tlie vol. i, pp. 116, 118, 167, 233, 243. Debates In the Federal Convention. " See the letter written by the Elliot's Debates, 2d ed., vol. v, p. 112. Duke of Dorset, English ambassa- "The State systems are the ac- dor at Paris, to the commissioners cursed thing which will prevent our sent to Europe to negotiate commer- being a nation. The democracy cial treaties, March 26, 1785 ; Diplo- might be managed, nay, it would matic Correspondence, vol. ii, p. 297, remedy itself after being sufficiently quoted in Curtis' Constitutional His- fermented ; but the vile State govern- tory of the United States, vol. i, p. ments are sources of pollution which 194, note 8. will contaminate the American name 18 Infra, § 9, note 4. for ages, machines that must pro- 12 INTRODUCTION. [CHAP. I. To the disgrace and suffering of those five years we owe our subsequent prosperity. Nothing but the burden of the evils which then oppressed them would have induced the people to place those brakes upon the exercise of their own wills and that machinery in the hands of the central government which have maintained our public and private financial credit and put down rebellion as well as repelled invasion. Had the men of that time not experienced the miscliief of unbridled popular license, and State statutes passed in the free exercise of local jealousies, they would have rejected the Constitution as an instrument savoring of tyranny. Congress would have been denied the power of taxation. The States would have been engaged in constant quarrels over retaliatory legislation. Travellers and goods would have been stopped by custom-houses at the border of each State. Peace in the South after the close of our Civil War could have never been restored without a decimation of the leaders of the revolt. The national and State legislatures would have the power of taking property without due process of law ; and credit would have been ruined by the enactment of laws which impaired the obligation of contracts. § 4. Previous Attempts at Union. The thirteen colonies had in law no connection with each other except through the ties binding each to the mother country. Great Britain assumed the duty of protecting them against foreign foes, and in return hampered their commerce so that it might be confined to the exclusive advantage of English merchants. The need of some arrangement tlu-ough which they could plan together for their common defence was early felt. But mutual jealousy as Avell as royal discouragement made the attempts abort. It was not until they felt the oppression of the central power that they all combined. The refusal of the others to allow the largest, Massachusetts, more than an equal voice in their deliberations kept the New England colonies from a treaty of alliance against their surrounding enemies, until the duee ill, but cannot produce good; King, July 15, 1787. Rufus King's smite them in the name of God and Life and Correspondence, vol. i, p, the people." Gen. Knox to Eufus 228. §4.J PREVIOUS ATTEMPTS AT UNION. 13 civil war made England abandon them to their own resources. Even then, the New England Confederation of 1643 ^ was too nar- row for the admission of Rhode Island; was unable to always obtain the obedience to its requisitions by Massachusetts ; ^ exer- cised little power after the restoration of Charles II ; and did not survive his reign. The deposition of James II defeated his project of uniting the New England, and, if possible, all the colonies, under a single governor-general. Under William and Mary, John Locke, whose philosophy could appreciate the benefit of freedom for English- men at home, but not in the colonies, suggested the appointment of a captain-general of North America, with arbitrary powers ; ^ § 4. 1 The articles provided : — ' ' VIII. It is also agreed that the Com- missioners for this Confederacon here- after at their meetings, whe,ther ordi- nary or extraordinary, as they may have commission or opertunitie, do endeavoure to frame and establish agreements and orders in generall cases of a civlll nature wherein all the plantacons are Interested for pre- serving peace among themselues, and preventing as much as may bee all occations of warr or difference with others, as about the free and speedy passage of Justice in every Juris- diccon, to all the Confederats equally as their owne, receiving those that remoue from one plantacon to an- other without due certefycats; how all the Jurisdiccons may carry it towards the Indians, that they neither grow insolent nor be injured without due satisfaccion, lest warr break in vpon the Confederates through such miscarryage. It is also agreed that if any servant runn away from his master into any other of these confed- erated Jurisdiccons, That in such Case, vpon the Certyflcate of one Majistrate in the Jurisdiccon out of which the said servant fled, or upon other due proofe, the said servant shalbe deliured either to his Master or any other that pursues and brings such Certificate or proofe. And that vpon the escape of any prisoner what- soever or fugitiue for any criminal cause, whether breaking prison or getting from the officer or otherwise escaping, upon the certificate of two Majistrates of the Jurisdiccon out of which the escape is made that he was a prisoner or such an offender at the tyme of the escape. The Majestrates or some of them of that Jurisdiccon where for the present the said pris- oner or fugitive abideth shall forth- with graunt such a warrant as the case will beare for the apprehending of any such person, and the delivery of him into the hands of the officer or other person that pursues him. And if there be help required for the safe retumeing of any such offender, then it shall be graunted to him that craves the same, he paying the charges thereof." Preston's Documents Illus- trative of American History, pp. 92-93. 2 See the remarks of Madison in the Virginia Convention of Batifica- tion, Elliot's Debates, 2d ed., vol. ill, p. 133. 8 "Mr. Locke, with other philoso- phers, solemnly advised that prince — William III — to appoint a cap- 14 INTEODUCTION. [CHAP. I. and William Penn, the summons of a congress with two delegates from each colony, to sit in New York, under the presidency of the Governor as the King's High Commissioner, " after the manner of Scotland."* In 1721, the exigencies of the conflict with France for the control of North America brought forth a scheme, said to have been drafted by Lord Stairs, which combined the sugges- tions of Penn and Locke. All of these plans, however, remained in the pigeon-holes of the Board of Trade. A few conferences of colonial governors or commissioners, in at least one instance called a congress,^ were held at the suggestion of the crown, to regulate treaties with the Indian tribes and to fix the men and money which each should contribute to the common defense.® Under George II, in 1754, the same cause led to a congress at Albany of representatives from seven colonies," who made a treaty with the six nations and drafted a plan of union, to be set in operation by an act of Parliament. This, which was largely drawn by Franklin, vested the control of war, Indian affairs, the ac(juisition of new territory, and the government of new settle- ments, in a president-general appointed by the crown and a grand council chosen by the colonial legislatures ; each colony to have tain general over the colonies, with against the publick enemies. In dictatorial power to levy and command which Congresse the Quotas of men an army without their own consent, and charges will be much easier, and or even the approbation of Parlia- more equally sett, then it is possible ment." Chalmers' Introduction to The for any establishment made here to Kevolt in the Colonies, Book VII, oh. do ; for the Provinces, knowing their xxvii. own condition and one another's can * Penn's Plan of Union, presented debate that matter with more freedome to the Board of Trade : — and satisfaction and better adjust and "That their business shall be to hear ballance their affairs in all respects and adjust all matters of Complaint or for their common safety." Preston's difference between Province and Prov- Documents Illustrative of American ince. As, 1st, where persons quit History, p. 147. their own Province and goe to an- 6 xhat called in 1711. Frothing- other, that they may avoid their just ham's Rise of the Republic, 3d ed., debts, tho they be able to pay them, p. 119, note. 2nd, where offenders fly Justice, or e a complete list of those held up Justice cannot well be had upon such to 1748 may be found in Frothingham's offenders in the Provinces that enter- Rise of the Republic, 3d ed., note to taine them, Sdly, to prevent or cure pp. 118, 119. See also ibid., p. 150. injuries in point of Commerce, 4th, to ' New Hampshire, Massachusetts, consider of ways and means to support Rhode Island, Connecticut, New York, the union and safety of these Provinces Pennsylvania, and Maryland. § 4.] PKEVIOtS ATTEMPTS AT TJNIOK. 15 two representatives, and none more than seven ; the representa- tion between those limits to be apportioned in accordance with the taxes paid by the constituencies. They might raise troops with officers nominated by the representatives of the crown, and confirmed by the grand council ; but could not impress men in any colony without the consent of the legislature. They had the further power to make laws and levy " duties, imposts, or taxes " ; the laws to be not repugnant to the laws of England, and to be subject to the veto of the King in council. The scheme was rejected by all the colonial assemblies to which it was proposed, as strengthening too highly the prerogative. The Board of Trade refused approval because it was too democratic.^ The Stamp Act was the cause of the first actual step toward union. At the summons of Massachusetts,^ an " American Con- gress," consisting of delegates from the popular assemblies of nine colonies, met at New York, in October, ITCS.'** Six of the colo- nies represented adopted a declaration of rights, and drew up petitions to King and Parliament which compelled the repeal of the obnoxious statute. Seven years later, in imitation of a practice of Cromwell's army,ii committees of correspondence were formed to secure co-operation between the different parts of the thirteen colonies, to resist the aggressions of Great Britain.^^ ' Frothingham's Kise of the Eepub- of the errors of states and princes." lie, 3d ed., pp. 146, 147. Curtis' Con- Life of Franklin by Sparks, vol. i, stitutional History of the United p. 178. The plan is republished in States, vol. i, p. 4, note 1. Subse- Preston's Documents Illustrative of quently, in 1788, Franklin said : " The American History, pp. 170-187. different and contradictory reasons of ' The resolution was moved by dislike to my plan make me suspect James Otis in the House of Eepre- that it was really the true medium; sentatives. and I am still of opinion it would have i" Massachusetts, Rhode Island, been happy for both sides, if it had Connecticut, New York, New Jersey, been adopted. The colonies so united Pennsylvania, Delaware, Maryland, would have been sufSciently strong to and South Carolina. The delegates of have defended themselves; there New York, South Carolina, and Con- would have been no need of troops necticutwerenotauthorized to join in from England ; of course the subse- the declaration and petitions, quent pretext for taxing America, i^ See Lilburne's advice to the and the bloody contest it occasioned, army, infra, Appendix to this chapter, would have been avoided. But such page 54. mistakes are not new ; history is full '^ The first suggestion reported is 16 INTRODUCTION. [chap. The first Continental Congress met Sept. 5, 1774. It had been recommended by Franklin the year before. In April, 1774, members of the Virginia House of Burgesses, after their formal dis- solution by the Governor, had organized as a committee, and advised the committees of correspondence to confer as to the expediency of another Congress. Some of its delegates were elected by popular conventions ; others by the popular houses of the legislatures ; others by county committees ; a few by immediate popular vote.^^ The instructions given to the delegates by their constituents were various. The delegates from New York and New Jersey were simply instructed " to represent " those colonies. The instructions of the others were in general confined to the adoption of such measures as might extricate the colonies from their present difficulties and obtain the repeal of the obnoxious acts of Parlia- ment. The delegates of South Carolina were by their instructions expressly confined to agreeing to " legal measures." ^* This Con- the resolution of Samuel Adams at a Boston town meeting, in November, 1772, for the appointment of such a. town committee. 13 < Pennsylvania Journal, Aug. 27, curious letter from Colonel Humph- 1787, quoted by Curtis, Constitutional reys to Hamilton, written from New History, \<)1. i, p. 626. § 9.] COMPROMISES OF THE CONSTITUTION. 41 stamped with the approval of time as well as of pliilosophers, the imitation was not servile. They knew by experience as well as history the mischief in the colonies and the mother country that had been caused by the lack of sufficient checks upon the powers of Parliament as well as the prerogative. They not only adopted the main checks which were a part of the British Constitution, but they took others which had been incorporated in the new State consti- tutions as well as some invented by themselves. The first Consti- tution of Massachusetts has a closer resemblance than any other to that of the United States.'^ § 9. Compromises of the Constitution. Compromises are the foundation of the Federal Constitution. The members of the Convention were too experienced in public life to sacrifice the public welfare for a syllogism. They cared nothing for a name when the thing wished could be. gained in substance under another term. They were too wise to reject a part when they could not obtain the whole. Their sagacity was excelled only by their patriotism. Provisions which to the ' This, which with some amend- of Representatives. The same name menls is still in force, was the most with different powers over money carefully constructed State Constitu- bills and the power to try impeach- tion then in existence. The rejection ments was given to the upper houses by the town meetings of the proposed in six other States. Supra, § 7, note 22. Constitution of 1778, drafted by the The name House of Eepresentatives State legislature or General Court, be- was also then applied to the lower cause, amongst other things, it did not house in the State Constitutions of provide sufficiently for a separation of New Hampshire, South Carolina, Penn- the three departments, had caused a sylvania and Vermont. The Journal thorough consideration of the whole of the Convention which framed the subject by the people of the State Constitution of 1780, was published before the meeting of the Constitu- by the order of the State Legislature tional Convention in 1779, which was in 1832. A pamphlet containing a chosen for that sole purpose. From report of the reasons for the rejection this seem to have been taken the of the Constitution of 1778 by a con- clauses in .the Federal Constitution vention of delegates of the towns of concerning the veto power; impeach- Lynn, Salem, Danvers, Wenham, ments; habeas corpus ; and the tenure Manchester, Gloucester, Ipswich, New- of office of judges. In that also, the buryport, Salisbury, Boxford, Me- upper house of the Legislature was thuen and Topsfield, held by adjourn- called the Senate and had, the power ment, Ipswich, April 29, 1778, was to amend but not to originate money published by John Michael, at New- bills; and the lower was the House buryport, in 1778. 42 INTEODUCTION. [CHAP. I. majority seemed beneficial were rejected because it was thought that their express inclusion might endanger the ratification of the plan, while they could under the general language be subse- quently established by Congress.^ After the struggle between those who wished a new national constitution and those who were willing only to accept an amend- ment of the Articles of Confederation had ended in the defeat of the latter, the word " national " was stricken from the paper. Provided that the form was national, they were satisfied that it might be termed federal, even though that name was susceptible of two inconsistent interpretations.^ The names of President and Congress were continued, because used under the Confederation, although the House of Representatives, at least, had no resemblance to a congress of ambassadors, and the new executive did not pre- side. These, however, were in the nature of concessions to popular prejudices, made voluntarily. Between the members of the Con- vention were constant differences which more than once threatened a disruption, and were only harmonized by reluctant compromise. The larger States were resolved to cancel the injustice of the Confederation, which placed each of them upon an equal footing with Connecticut and Rhode Island. Some of their delegates wished to insist upon this at the opening of the Convention, § 9. 1 Hamilton's Opinion on the at the seat of government will reach Bank (Hamilton's Works, 1st ed., vol. the object" (Madison Papers, Elliot's i, p. 127; Story on the Constitution, Debates, 2d ed., vol. v, p. 544). His § 1268). "When the grant of an ex- own proposition of the creation of press power to incorporate a, bank six cabinet ofBces was not adopted, was proposed, Gouvern eur Morris op- undoubtedly for the same reason (ibid. , posed it, observing that it was ex- p. 446). Morris admitted in his letter tremely doubtful whether the Consti- to Pickering, Dec. 22, 1814, that when tution they were framing could ever he drafted the article on the judicial bo passed at all by the people of Amer- power, ' ' conflicting opinions had been ica ; that to give it its best chance, maintained with so much professional however, they should " make it as pal- astuteness, that it became necessary atable as possible, and put nothing to select phrases which,, expressing into it not very essential, which my own notions, would not shame might raise up enemies " (Jefferson's others, nor shock their self love ; and Ana, Works, 1st ed., vol. ix, p. 191). to the best of my recollection, this So Gouverneur Morris opposed the was the only part which passed with- inclusion of an express grant of power out cavil" (ibid., vol. i, p. 507). to establish a university, saying : " It 2 See the discussion of the meaning is not necessary. The exclusive power of the term quoted, infra, § 17. § 9.J COMPEOMISES OF THK CONSTITUTION. 43 and to demand that votes in that body should be counted in accordance with the number of constituents represented.^ Only the moderation of Virginia prevented such a course, which would have broken up the proceedings at the start. The smallest States were equally determined to make no sacrifice of their present rights, and pointed to the oppressions of Athens and Sparta upon their weaker confederates as a warning against the danger of an hegemony. The settlement of this question by the adoption of the suggestion of Roger Sherman not only saved the Union, but established the only upper chamber in the world which at the end of the nineteenth century enjoys either power or respect. The difference between the occupations and domestic institu- tions of the North and South presented the same questions which divided the Union after it was formed, and they nearly prevented at the first that consolidation which seventy years later they almost tore apart. Commerce and shipping were the industries for which the climate and harbors of New England had fitted its inhabitants. For these objects its delegates demanded that a majority in Congress should have the power to pass a navigation law and negotiate commercial treaties. Satisfied and enriched by agriculture, the planters of the South were willing to have their rice, indigo and tobacco shipped on foreign as well as domestic bottoms. They feared, however, lest the general government might discriminate against them by a tax upon their exports. Those of the interior had good cause for fear lest a majority might through a short-sighted policy barter to Spain the right of 3 "Previous to the arrival of a Tlie members from Virginia, conceiv- majority of the states, the rule by ing that such an attempt might beget which they ought to vote in the Con- fatal altercations between the large vention had been made a subject of and small States, and that it would conversation among the members be easier to prevail on the latter, in present. It was passed by Grouverneur the course of the deliberations, to Morris, and favored by Robert Morris give up their equality for the sake of and others from Pennsylvania, that an effective government, than, on the large states should unite in firmly taking the field of discussion, to dis- refusing to the small states an equal arm themselves of the right, and vote, as unreasonable, and as enabling thereby throw themselves on the the small states to negative every mercy of the larger states, discounte- gOod system of government, which nanced and stifled the project." Madi- must, in the nature of things, be son Papers, Elliot's Debates, 2d ed., founded on a violation of that equality. vol. v, p. 125. 44 INTRODUCTION. ' [CHAP. I. free navigation of the Mississippi in return for commercial privi- leges in that country and its colonies.* They were unvsrilling to give up the right of importing slaves from Africa ; and wished when slaves escaped to have them returned by the Northern States. Representation by population, they insisted, should be proportioned to slave population as well as free, if for no other reason, to prevent the destruction of slavery by a capitation tax. The conscientious scruples of the descendants of the Puritans of the North made their delegates refuse to xecognize any right of property by man in man. This matter, too, was adjusted by the adoption of the rule, that representatives and direct taxation should both be proportioned to the number of free inhabitants plus three-fifths of the rest, and that a capitation should be con- sidered a direct tax.^ The taxation of exports by the States severally or united was forbidden absolutely. The power to regulate commerce was vested in a majority of Congress, but it was provided that treaties could not be negotiated without the consent of two-thirds of the States present in the Senate. The slave-trade -whs preserved for a period of twenty years ; ^ and fugitive slaves, like fugitives from justice, were to be returned by the free States to their masters. The conscience of the North was salved by the omission of the name of slave from the Consti- tution. "Circumlocutions," said John Quincy Adams, "were the fig-leaves under which these parts of our body politic are decently concealed."' * Jay, who had been sent to Spain stitutional History, vol. i. pp. 210-214, to negotiate a treaty, had requested citing Washington's Writings, 1st ed.. Congress for permission to concede to vol. ix, pp. 172, 173, 180, 205, 206, 261. Spain the exclusive right to navigate Secret Journals, vol. iv, pp. 50, 54, the Mississippi lor a limited period of 109, 110, 111. time. Congress by a vote of seven to 5 Constitution, Article I, §§ 2 and 9, five had authorized him so to do, and irifra. he had negotiated a treaty for that e Till 1808, Constitution, Article I, purpose, which had not been ratified. § 9. Washington also was in favor of this ' Argument in the Amistad Case, course, in return for favorable com- p. 39. meroial advantages. See Curtis' Con- § 10.] KESTJLT OF FEDERAL CONVENTION. 45 § lO. Result of the Federal Convention. As the result of their labors they established a federal republic with a presidential form of government. They created a strong and stable nation with local self-government secured to the differ- ent States, who were restrained from creating domestic discord by unjust discrimination in favor of their own citizens. The instrument that they framed has withstood the shock of the invasion of a foreign army, which captured and burned the capi- tal, and of a civil war which divided the whole country for five years into two hostile camps, and left the conquered section , so disordered that for ten years more its local governments were upheld by the national sword. During all this time private prop- erty has remained secure, and civil liberty undisturbed except for a brief interval amidst the embers of rebellion.^ Despite the strain caused by the immigration of a vast foreign population of servile races, debased by generations of tyranny, by custom as well as in- heritance unfitted to exercise the rights of citizenship, the sov- ereignty of the people has remained undiscredited and unimpaired, as a beacon light for the friends of popular government through- out the world. In the struggle between the supporters of civili- zation against the hordes of barbarians within their ranks, which is now in progress throughout Europe as well as America, property has more safety here than in any other country. The spectacle of a people submitting public controversies to the same mode of settlement as private law-suits and acquiescing in the decisions, has set an example which foreign nations are about to imitate, not only in internal discords, but in those which are inter- national. The invention of representative government in England re- moved the obstacle which had made it impossible in Greece and Italy to combine freedom with an extension of territory. But democratic government could not be accompanied by stability of public credit and security of private property until the United States first established a written constitution guarded from in- fringement by the courts. 1 Infra, § 38. APPENDIX TO CHAPTER I. JOHH LILBUBNE AISTD THE AGREEMENT OF THE PEOPLE. More than a passing word is due to freeborn John Lilburne, of whom Hume, a sympathizer with neither his religion nor his politics, said that he was " the most turbulent, but the most upright and courageous of human kind ; " ^ and who by his experiments, as well as his teachings, did more than any other to found that present sys- tem of public law which gives the courts power to disregard an act of the legislature as unconstitutional. He was born about 1618, the son of Richard Lilburne, a gentleman of Thickley-Punchardon in the County of Durham." His name appears in the pamphlets written by himself both as Lilburn and Lilburne, the later publications having the final e. He had little early education ; admitting that he never acquired the knowledge of any tongue but his own, except the mastery of ordinary Latin law-terms ; ' but he acquired by study during his im- prisonments a wide knowledge of English history and a good smatter- ing of law. When about fourteen years of age he was appren- ticed to a cloth-dealer * in London, where he probably acquh-ed those Puritan doctrines to which he adhered through life. Thence he went to Holland for a short time and engaged in trade there as a factor.' On his return in 1639, when about twenty years old, he was ar- rested and brought before the Star Chamber on the false charge of importing factious and scandalous books, amongst others Bastwick's "Answer to certain Objections," "Litany for the especiall Use of our English Prelates," and " The Vanity and Impiety of the old Lit- any." Lilburne refused to pay the fees for entering his appearance before the Star Chamber, and to answer the charges under oath, amongst other grounds because the requirement was a violation of the Petition of Right. For this he was sentenced to a fine of five hundred 1 Hume's History of England, ch. Ix. » Ibid., vol. iv, pp. 1282, 1283, 1297. ■" Howell's State Trials, vol. iii, p. * Ibid., vol. iii, p. 1317. 1320 ; voL iv, p. 1291 ; vol. v, p. 416. 6 15;^. 46 APPENDIX.] JOHN LILBUENE. 4T pounds, to exposure in the pillory, to be whipped from the Fleet to the pillory, and then to imprisonment till he should furnish sureties for his good behavior." He withstood his punishment bravely, receiving between the Fleet and the pillory at Westminster more than two hundred stripes from a whip with a threefold knotted cord ; while he repeated texts and prophe- sied to the people. On his arrival he was offered relief from the pillory if he would confess his fault, which he refused. When in the pillory, stooping with his neck in the yoke and his bare head exposed to the sun, he held forth to the crowd, denying the chai'ges against him, justifying himself for his refusal to take the illegal oath, denouncing the bishops,, and exhorting his hearers to be faithful, valiant soldiers in Christ's army. In the midst of his discourse he threw amongst the mob three of the books which were the subject of his accusation. His mouth was at last stopped by a gag ; but when it was removed, as he took his head out of the pillory, he cried : "I am more of a conqueror through him that hath loved me. Vivat rex;" and on his return to prison published an account of his sufferings, with a copy of his speech signed in his blood.' The Star Chamber thereupon voted that all persons sentenced to be whipped should be searched and their hands bound before their punishment, and " That the said John Lilburn should be laid alone, with irons on his hands and legs, in the Wards of the Fleet, where the basest and meanest sort of prisoners are used to be put ; and that the Warden of the Fleet take especial care to hinder the resort of any persons whatsoever unto him. And particularly, that he be not supplied with money from any friend, and that he take special notice of all letters, writings, and books brought unto him, and seize and deliver the same unto their lordships ; and take notice from time to time, who they are that resort unto the said prison to visit the said Lilburn, or to speak with him, and inform the Board thereof."* He lay thus in prison for nearly three years, kept in fetters till his life was endangered by illness, nearly starved till his friends pro- vided him with food through stratagem, having it passed to him by his fellow prisoners through holes in the wall or floor of his cell ; and at times so brutally treated by his gaolers that he lost the use of two fingers for life.' In 1640, at the opening of the Long Parliament, he peti- tioned for his liberty, and was the first prisoner released by them." 6 Howell's State Trials, vol. iii, pp. « Ibid., vol. iii, p. 1341. 1315-1327. » Ibid., vol. iii, pp. 1345, 1346, 1351. ' Ibid., vol. iii, pp. 1328-1345. " Ibid., vol. iii, p. 1342. 48 JOHN LILBTJBNE. [CHAP. I. Lilburne took an active part in arousing the people to aid the Parlia- ment against the King, and May 4, 1641, Charles honored him by his arraignment for high treason, before the House of Lords, for resisting soldiers in a riot." The same day, the House of Commons, on the report of a Committee which had investigated the subject, resolved, "That the sentence of the Star Chamber against John Lilburne is illegal, and against the liberty of the subject ; and also bloody, cruel, wicked, bar- barous and tyrannical " ; that reparation ought to be given to him ; and that his ease, with those of Prynne, Bastwick, and others, should be transmitted to the Lords. ^^ Charles soon had to pay attention to matters more nearly touching himself than the prosecution of Lilburne, who was imprisoned for some time, either on this charge or for some other offense against the Lords ; and, on his discharge, sued the lieuten- ant of the Tower for four thousand pounds as damages for false impris- onment.-'^ He then enlisted in the parliamentary army, where he be- came a lieutenant-colonel ; " was captured by the King's forces ; and arraigned at Oxford for treason. He was allowed a trial by jury ; but before the appointed day, Parliament, at his wife's instance, passed a law for reprisals upon royalist or malignant prisoners, which stopped the proceedings."^ He escaped by bribing his guard, and returned to the army, meanwhile continuing his occupation as a pamphleteer. His speeches and writings were so full of propositions concerning the rights of freeborn Englishmen, that he obtained the nickname of Freeborn John, and gained great popularity among the soldiers and the people." He grounded his arguments upon four authorities in the order given : Holy Scripture, sound reason, Magna Charta, and the other fundamentals, the laws of the land and historical precedents ; thus relegating the law to a subordinate jurisdiction." He was at first on close terms with Crom- well, whom he aided by his attacks on Parliament."* It was not unnat- ural that he should have come into conflict with his military superiors. He was threatened with hanging, by the Earl of Manchester, for insub- ordination through excess of zeal at the capture of Tickell Castle, and was obliged to quit the army because of his refusal to sign the Sol- emn League and Covenant."" Meanwhile he petitioned Parliament for 11 Howell's State Trials, vol. iii, p. Democracy in Old and New England, p. 1342. 48. ^' Ibid. 17 Ibid., p. 49. 18 Ibid., vol. iv, p. 1385. is See Clarendon's History of The " Ibid., vol. iu, p. 1344. Rebellion, quoted in Howell's State 15 Ibid., vol. iii, p. 1344 ; vol. iv, pp. Trials, vol. iv, p. 1419. 1272, 1304. 19 Borgeaud, Eise of Modern Democ- 18 Borgeaud, The Rise of Modern racy in Old and New England, p. 48. APPENDIX.] JOHN LILBTJENB. 49 reparation for his imprisonment by the Star Chamber.'"' The Lords passed an ordinance giving him two thousand pounds, to be collected out of the estates of two members of the Star Chamber and the deputy warden of the Fleet. ^^ Meanwhile he was imprisoned by a snap vote of the House of Commons, obtained, in the absence of his own friends, by Manchester and Bastwick, with whom he had now quarreled in a tract against him and his clerical associates.''^ While in Newgate, Lilburne wrote several pamphlets, in which he maintained the sovereignty of the people over the House of Commons. " Now, for any man to imagine that the shadow or representative is more worthy than the substance, or that the House of Commons is more valuable and considerable than the Body for whom they serve, is all one as if they should afHrme that an Agent or Ambassador from a Prince hath the same or more authority than the Prince himselfe." °' He was the principal author of the Agreement of the People, the first written Constitution with limits to the power of a national legislature ever proposed in any country. It was submitted by the agents of five regiments of horse to the Commons in 1647, with the general approval of the army. This provided for the dissolution of the Long Parliament in the following year, a new apportionment of members, and biennial elections. The legislative power was granted and limited as fol- lows : — "That the power of this, and all future Bepresentatives of this Nation, is inferior only to theirs who chuse them, and doth extend, without the consent or concurrence of any other person or persons, to the enacting, altering, and repealing of Lawes ; to the erecting and abolishing of Offices and Courts ; to the appointing, removing, and calling to account Magis- trates, and Officers of all degrees ; to the making War and Peace, to the treating with forraigne States : And generally, to whatsoever is not 2° His petitions are printed in Howell's his Countries Freedome Lieutenant Col. State Trials, vol. iii, pp. 1.343-1346. John Lilburne, — "Wherein their just ^^ Ibid., vol. iii, p. 1359. Demands in behalfe of themselves and 22 England's Miserie and Remedie, the whole Kingdoms concerning their pp. 1-4 (British Museum, E, 302), quoted Publick Safety, Peace, and Preedome is by Borgeaud, pp. 49, 50. expressed ; calling those their Commis- 2* England's Miserie and Eemedie, sioners in Parliament to an Account, 1645, pp. 1-4 (British Museum, E, 802), to how they (since the beginning of quoted by Borgeaud, pp. 49, 60. See their Session to this present) have dis- also A Remonstrance of Many Thou- charged their Duties to the Universality sands Citizens and other Pree-bom of the People, their Sovereign iord, from People of England to their owne House of whom their Power and Strength is Commons, occasioned through the Ille- derived, and by whom {ad beneplacitum) gall and Barbarous Imprisonment of it is continued." British Museum, 1104, that famous and Worthy Sufferer for a 7, cited by Borgeaud, p. 51. 50 JOHN LIIiBUENE. [CHAP. I. expressly, or implyedly reserved by the represented themselves. Which are as followeth, "1. That matters of Religion, and the vrayes of God's worship, are not at all intrusted by us to any humane power, because therein wee cannot remit or exceed a tittle of what our Consciences dictate to be the mind of God, without wilfuU sinne: neverthelesse the publike way of instructing the Kation (so it be not compulsive) is referred to their discretion. " 2. That the matter of impressing and constraining any of us to serve in the warres, is against our freedome; and therefore we do not allow it in our Representatives; the rather, because money (the sinews of war) being alwayes at their disposall, they can never want numbers of men, apt enough to engage in any just cause. "3. That after the dissolution of this present Parliament, no person be at any time questioned for anything said or done, in reference to the late publike differences, otherwise than in execution of the Judgments of the present Representatives or House of Commons. " 4. That in all Laws made, or to be made, every person may be bound alike, and that no Tenure, Estate, Charter, Degree, Birth or place do con- fer any exemption from the ordinary Course of Legall proceedings, where- unto others are subjected. " 5. That as the Laws ought to be equaU, so they must be good, and not evidently destructive to the safety and well-being of the people. "These things we declare to be our native Eights, and therefore are agreed and resolved to maintain them with our utmost possibilities, against ail opposition whatsoever, being compelled thereunto, not only by the exam- ples of our Ancestors, whose blood was often spent in vain for the recovery of their Freedomes, suffering themselves, through fraudulent accommoda- tions, to be still deluded of the fruit of their Victories, but also by our own wofull experience, who having long expected, and dearly earned the estab- lishment of these certain rules of Government are yet made to depend for the settlement of our Peace and Freedome, upon him that intended our bondage, and brought a cruell Warre upon us." ^* After the success of the army in their conflict with Parliament, he was released from prison in 1647 or 1648, on the presentment of a petition signed by over seven thousand of his friends , who also prayed that the ordinance for his indemnity be passed. ^^ The establishment of a pre- cedent in relieving him from the estates of those who had sentenced him was opposed by the Speaker and others aa likely to react subse- quently upon themselves. ^° While the ordinance lay on the table, 2* The document is set forth at length Legal Fundamental Liberties of Eng- by Borgeaud, pp. 67-73. The first draft land, by Lilburne, reprinted in the was prepared at a conference between Clarke Papers, vol. ii, p. 257.) representatives of the Levellers, of whom 25 jjQ-,ygH>s state Trials, vol. iii, p. Lilburne was one, the officers, the inde- 1359. pendents, and the Parliament. (The 26 ibid., p. 1360. APPENDIX.] JOHN LrLBTIENE. 51 Parliament had disposed of the estates of two of the delinquents whom it named." Finally an ordinance passed the first reading which gave him three thousand pounds out of the estate of the Lord Keeper, who took part in his sentence.^* This was opposed by tactics not unknown to legislatures of the present day. The ordinance was stolen before its second reading. During LUburne's absence in search of a copy, after his friends had left the house, his enemies procured its rejection ; and the passage of orders giving him three hundred pounds in cash and three thousand pounds more to be settled out of the estates of new delinquents in the insurrections, not yet sequestered.''' Finally he procured the passage of an ordinance allowing him the same sum out of the specified sequestered estates, but hampered with "such conditions that he obtained little money from them.'° Meanwhile, he took part as agent for the rank and file in the con- ferences with the General Council of officers concerning the Agree- ment of the People, where he distinguished himself for the bitterness of his language, and challenged some of the officers to a duel.'^ The con- ference failed, and the troops mutinied. Although the first mutiny was suppressed, and one of the ringleaders shot, Cromwell was forced to yield, and a new Agreement of the People, first drafted by Lilburne, was presented to Parliament, January 20, 1648-1649, in the name of the army, by the General-in-Chief and his council of officers. °^ This pro- vided concerning the legislative power : — " Eighthly : That the Representatives have, and shall be understood to have, the supreme trust in order to the preservation and government of the whole ; and that their power extend, without the consent or concur- rence of any other person or persons, to the erecting and abolishing of Courts of Justice and public offices, and to the enacting, altering, repeal- ing and declaring of laws, and the highest and final judgment, concerning all natural or civil things, but not concerning things spiritual or evangeli- cal. Provided that, even in things natural and civil, these six particulars next following are, and shall be, understood to be excepted and reserved from our Representatives, viz. 1. We do not empower them to impress or constrain any person to serve in foreign war, either by sea or land, nor for any military service within the kingdom ; save that they may take order for the forming, training, and exercising of the people in a military way, to be in readiness for resisting of foreign invasions, suppressing of sudden 27 Howell's State Trials, vol. ill, p. " ibid., vol. iv, p. 1368. 1359. 32 Borgeaud, pp. 74-76. For the de- 28 Ibid., pp. 1364-1366. bates concerning this, in which Lilburne ^ Ibid., pp. 1365-1367. took part, see the Clarke Papers. 3» Ibid., pp. 1367-1368. 52 JOHN LILBtTRNE. [CHAP. I. insurrections, or for assisting in execution of the laws; and may take order for the employing and conducting of them for those ends ; provided, that, even in such cases, none be compellable to go out of the county he lives in, if he procure another to serve in his room. " 2. That, after the time herein limited for the commencement of the first Representative, none of the people may be at any time questioned for anything said or done in relation to the late wars or public differences, otherwise than in execution or pursuance of the determinations of the present House of Commons, against such as have adhered to the King, or his interest, against the people ; and saving that accomptants for public moneys received, shall remain accountable for the same. 3. That no securities given, or to be given, by the public faith of the nation, nor any engagements of the public faith for satisfaction of debts and damages, shall be made void or invalid by the ;next or any future Eepresentatives; except to such creditors as have, or shall have, justly forfeited the same: and saving, that the next Representative ma}' confirm or make null, in part or in whole, all gifts of lands, moneys, ofiices, or otherwise, made by the present Parliament to any member or attendant of either House. 4. That, in any laws hereafter to be made, no person, by virtue of any tenure, grant, charter, patent, degree or birth, shall be privileged from subjection thereto, or from being bound thereby, as well as others. 5. That the Representative may not give judgment upon any man's person or estate, where no law hath before provided; save only in calling to account and punishing public officers for abusing or failing in their trust. 6. That no Representative may in anywise render up, or give, or take away, any of the foundations of common right, liberty, and safety contained in this Agreement, nor level men's estates, destroy property, or make all things common; and that, in all matters of such fundamental concernment, there shall be a liberty to particular members of the said Eepresentatives to enter their dissents from the major vote. "Ninthly. Concerning religion, we agree as followeth: — 1. It is intended that the Christian Religion be held forth and recommended as the public profession in this nation, which we desire may, by the grace of God, be reformed to the greatest purity in doctrine, worship and discipline, according to the Word of God ; the instructing the people thereunto in a public way, so it be not compulsive; as also the maintaining of able teachers for that end, and for the confutation or discovering of heresy, error, and whatsoever is contrary to sound doctrine, is allowed to be provided for by our Representatives; the maintenance of which teachers may be out of a public treasury, and, we desire, not by tithes: provided, that Popery or Prelacy be not held forth as the public way or profession in this nation. 2. That, to the public profession so held forth, none be compelled by penalties or otherwise; but only may be endeavoured to be won by sound doctrine, and the example of a good conversation. 3. That such as profess faith in God by Jesus Christ, however differing in judgment APPENDIX.] JOHN LILBTJENE. 53 from the doctrine, worship or discipline publicly held forth, as aforesaid, shall not be restrained from, but shall be protected in, the profession of their faith and exercise of religion, according to their consciences, in any- place except such as shall be set apart for the public worship ; where we provide not for them, unless they have leave, so as they abuse not this liberty to the civil injury of others, or to actual disturbance of the public peace on their parts. iNevertheless, it is not intended to be hereby pro- vided, that this liberty shall necessarily extend to Popery or Prelacy. 4. That all laws, ordinances, statutes, and clauses in any law, statute, or ordinance to the contrary of the liberty herein provided for, in the two particulars next preceding concerning religion, be, and are hereby, repealed and made void. "Tenthly. It is agreed, that whosoever shall, by force of arms, resist the orders of the next or any future Representative (except in case where such Kepresentative shall evidently render up, or give, or take away the foundations of common right, liberty, and safety, contained in this Agree- ment), he shall forthwith, after his or their such resistance, lose the benefit and protection of the laws, and shall be punishable with death, as an enemy and traitor to the nation." "' The trial of the King, which began the day when the Agreement was presented, afforded an excuse for the postponement of the consideration of the latter which was never resumed.^* Cromwell soon acquired suflBcient strength to abandon it. And Lilburne with some of his fellow agitators was, on March 28th, 1649, again imprisoned in the Tower, whence he sent forth a hurricane of pamphlets attacking the arbitrary proceedings of the Rump Parliament.'^ A third Agreement of the People sent by him to the soldiers contained the following article which was subsequently included in the charges of treason made against him: — " And all laws made, or that shall be made, contrary to any part of this Agreement are hereby made null and void." '* Another mutiny arose, but was promptly quelled, and discipline in the army finally restored. To silence Lilburne and the rest a new law of treason was enacted by the Rump Parliament : — " That if any person shall maliciously or advisedly publish, by writing, printing or openly declaring that the said government is tyrannical, usurped, or unlawful ; or that the Commons in Parliament assembled are not the supreme authority of this nation, or shall plot, contrive or en- s' Gardiner's Documents of the Purl- 36 An Agreement of the Free People tan Revolution, pp. 279-281. of England, tendered as a Peace ofiering M Borgeaud, pp. 91, 92. to the distressed Nation. London, May 86 The names of a number of them 1, 1649. (British Museum, 552 [23].) are given by Borgeaud. Howell's State Trials, vol. iv, p. 1363. 54 JOHN LILBTJENE. [CHAP. I. deavour to stir up or raise force against the present government, or for the perversion or alteration of the same, and shall declare the same by any open deed ; that then every such offence shall be taken, deemed, and ad- judged by the authority of the present Parliament to be High Treason." " The act also made it treason for a civilian to try to stir up a mutiny in the army. Nothing daunted, Lilburne, while in the Tower proceeded to break the law by a number of publications. He was indicted for high treason under the statute on account of his publication of "A Salva Libertate " ; "An Impeachment of High Treason against Oliver Cromwell and his son-in-law John Ireton Esqrs., late members of the late forcibly dissolved House of Commons, presented to public view by lieut. colonel John Lilburne, close prisoner in the Tower of London, for his real, true, and zealous affection to the Liberties of this nation'' ; ' ' An Outcry of the Young-men and Apprentices of London, or an Inquisition after the lost fundamental laws and liberties of England, directed Aug. 29, 1649, in an Epistle to the private Soldiers of the Army, especially all those that signed the solemn Engagement at Newmarket Heath the 5th of June, 1647, but more especially the private Soldiers of the General's regiment of horse, that helped to plunder and destroy the honest and true-hearted Englishmen, traitorously defeated at Burford, the 15th of May, 1649"; "A Preparative to an Hue and Cry after Sir Arthur Haslerig" ; and " The legal and fundamental Liberties of the People of England, revived, asserted and vindicated." The first of these books he had given to the lieutenant of the Tower as a protest against a warrant to bring him before the Attorney-General. '' The Outcry of the Apprentices " he had given to some soldiers. In these books he had deliberately violated the statute by speaking of " the present tyrannical and arbitrary, new erected, robbing govern- ment" ; '* saying on the first page of one : — "I have fully, both by law and reason, undeniably and unanswerably proved that the pi'esent Juncto sitting at Westminster are no Parliament at all in any sense, either upon the principles of law or reason, but are a company of usurping tyrants and destroyers of your laws, liberties, freedoms and proprieties, sitting by virtue of the power and conquest of the sword." '' He had also said : — " Granting that the Parliament hath power to erect a court of justice to administer the law, provided that the judges consist of persons that are 8' Acts of May 14, 1649, and July 7, 8s Impeachment of High Treason 1649 ; Howell's State Trials, vol. iv, pp. against Oliver Cromwell. 1347-1351. 89 Ibid., p. 1. APPENDIX.] JOHN LILBTJENB. 65 not members of Parliament, and provided the power they give them be universal, that is to say, to administer the law to all the people of England indefinitely, who are all equally born free alike, and not to two or three particular persons solely ; the last of which for them to do is unjust, and altogether out of their power." '" Lilburne's wife and family petitioned for a suspension of the pro- ceedings, that they might have time to persuade him to make submis- sion. He would, however, m«ke no propositions, except first to submit the case to twelve judges, one to be selected by himself, the rest by his adversaries ; then that he be released under a promise to emigrate to the West Indies within six months, — " Provided, that all those that are free and willing to go along with me of what quality soever, may have tree liberty at their pleasure to go, and provided, seeing many of those I know willing to undertake the journey, are made very poor by reason of their sufferings in the present distrac- tions, may have all such monies justly paid unto them, as is owing them, either upon arrears, for faithful service already done, or for monies lent to the public, that so they may be the better enabled for their journey, they engaged thereupon to go ; and provided, that other that are willing to go, and are so ver}'- poor, that they cannot transplant themselves, may have from the public some reasonable allowance for that end, this being the land of their nativity, where by the law of nature, they may challenge a subsistence ;- and therefore it is but just, seeing their company and prin- ciples are a burthen and trouble to the men in present power, that they should make their willingness (for peace-sake), able to transport them- selves into a desart, where, with industry, and the blessing of God there- upon, they may expect a livelihood, and this, with the engagement of the present power, for a peaceable protection while we stay here in England, and for their assistance for a reasonable convoy in some part of our jour- ney, I will engage in security, I will not act against their power, during my stay in England, directly or indirectly ; but for me to engage singly to go alone, seeing I know no plantation already planted ; but I would sooner chuse, to be cut in pieces in England, than engage to go to it : therefore particularly I shall not engage, without terms above said, come life, come death, to which I shall stand." •" Finally, moved by the tears and importunities of his wife, he peti- tioned : — " That my Trial, (so suddenly intended) may for some reasonable time be suspended, that so I may have time to hear and consider what many of » Iiilbume, The legal and fundamen- also his Picture of the Council of State. tal Liberties of the People of Englaud re- « Howell's State Trials, vol. iv, p. vived, asserted and vindicated. See 1426. 56 JOHN LILBXTENB. [CHAP. I. them say they have to offer by way of reason and argument, to persuade me to what at present my conscience is not convinced of. And I should likewise be desirous, if your house should judge convenient, that some competent number of gentlemen of your house might be permitted to debate with me .those particulars, wherein I have appeared most to differ with other men's judgments : whereby possibly rational arguments may be so strongly urged, as peradventure may give such satisfaction as may tend to the reconciling many differences and distractions ; upon the knowledge of the acceptance of which, during all that time of suspension of trial, I do hereby faithfully promise not in the least to disturb those that shall grant me this favour, being not so apt to make disturbance as is conceived." "^ At his trial, in October, 1649, though barely thirty years of age and without legal training, he conducted his defense single-handed against bench and bar in a most masterly manner. The court-room was packed with his friends, who influenced the jury by expressions of their sympathy, so loud that several companies of soldiers were brought to the neighborhood to keep order. He so continually com- plained of the unfairness of the prosecution, that he put both the prosecutors and the judges, throughout the case, upon the defensive. His arguments in favor of his demand that counsel should be allowed him in the defense of a criminal prosecution, as they would have been in a civil action, were a just arraignment of the barbarous system of -criminal jurisprudence that then prevailed. He refused to admit the publication of the books, although frequently asked about the facts, justifying himself against the criticisms of his prosecutors for this action by the example of Christ before Pilate. His concluding argu- ment consisted of technical objections to the proof of his publication of the books, combined with complaints about the injustice of his treatment, and reference to his services in the cause of religious freedom. The peroration was as follows : — " I have almost done, Sir; only once again I claim that as my right which you have promised. That I should have counsel to matter of law; and if you give me but your own promise, which is my undoubted right by your own law, I fear not for my life; But if you again shall deny both these legal privileges, I shall desire my jury to take notice, that I aver you rob me of the benefit of the law, and go about to murder me, without and against law: and therefore, as a free-born Englishman, and as a true Christian that now stands in the sight and presence of God, with an upright heart and conscience, and with a chearful countenance, cast my life, and the lives of all the honest freemen of England, into the hands of God, and <2 Howell's State Trials, vol. iv, pp. 1432, 1433. APPEISTDIX.] JOHN LILBUENE. 57 his gracious protection, and into tlie care and conscience of my honest jury and fellow-citizens; who I again declare by the law of England, are the conservators and sole judges of my life, having inherent in them alone the judicial power of the law, as well as fact : you judges that sit there being no more, if they please, but cyphers to pronounce the sentence, or their clerks to say Amen to them: being at the best in your original, but the Norman Conqueror's intruders. And therefore, you gentlemen of the Jury are my sole Judges, the keepers of my life, at whose hands the Lord will require my blood, in case you leave any part of my Indictment to the cruel and bloody men. And therefore I desire you to know your power, and consider your duty both to God, to me, to your own selves, and to your country: And the gracious assisting Spirit and Presence of the Lord God Omnipotent, the Governor of heaven and earth, and all things therein contained, go along with you, give counsel and direct you, to do that which is just, and for his glory." " The people with a loud voice cried, Amen, Amen, and gave an extra- ordinary great hum ; which made the Judges look something untowardiy about them, and caused major-general Skippon to send for three more fresh companies of foot-soldiers." " The jury brought in a verdict of not guilty, which was greeted with popular applause and bonfires in the streets. Notwithstanding this, he was returned to the Tower and kept there imprisoned ten days longer, till he was released upon the warrant of Bradshaw.^* Shortly afterwards Lilburne was elected to the London Common Council, but his election was set aside, upon which he said ; "I have been judged by man, but God will judge between Cromwell and me ; " *^ then for a while dropped politics and set up as a soap-boiler.^' For two years Lilburne continued this trade, which he combined with that of a promoter of private claims before Parliament. He then excited the hostility of Parliament by his conduct in the prosecution of a claim for his uncle George Lilburne and Josiah Primate against Sir Arthur Haslerig, about a colliery in the County of Durham, which they claimed Haslerig had taken from them by force. The Com- mittee reported in favor of Haslerig; whereupon the House voted acquitting Haslerig, determining the petition to be false, malicious and scandalous, directing it to be burnt by the common hangman, fining Primate and Col. Lilburne seven thousand pounds each, part of ^ Howell's State Trials, vol. iv, p. representative is at an end since John 1395_ Lilburne turned off the trade of state- ♦•Ibid. p. 1406. mending to take up that of soap-boiling.'' « Gardiner's Puritan Commonwealth Merc. Politious, June 12, 1650, quoted and Protectorate, vol. i, p. 198. in Gardiner's Commonwealth and Pro- « " The project of the wild levelling tectorate, vol. i, p. 199, note 1. 58 JOHN LILBUENE. [CHAP. I. which was to be paid to Haslerig, and providing that Lilburne should be banished, and depart the kingdom within thirty days, and that in case of his return, he should be proceeded against as a felon, and suffer the pains of death accordingly. "When summoned to the bar of the House to receive his sentence he refused to kneel and was accordingly ordered to withdraw. The House on January 30th, 1651, passed an act to carry out its judgment, which, after allow- ing Lilburne twenty days to leave the country, provided that in case after the expiration of that time he should be found there, " the said John Lilburne shall be, and is hereby adjudged a felon, and shall be executed as a felon without benefit of clergy."^' He accordingly went to Holland, but two years later returned to England to contest the validity of the law, when he was committed to Newgate and brought to trial. He filed several exceptions to the indictment upon the grounds that the description of the Parliament in the indictment was informal, that the act did not conform to the judgment upon him, and that the indictment did not set forth with sufficient specification that he was the John Lilburne described in the act. The most interest- ing exception was, however, that the act was void as contrary to the fundamental principles of law. This was as follows : — "Exception 2. The said Indictment is grounded upon the fore-recited act, intitled, ' An Act for the Execution of a Judgment given in Parlia- ment against Lieut, col. John Lilburne ' ; and so relates only to some judg- ment supposed to be given in parliament against the said It. col. John Lilburne ; and if no such judgment were given, the act were void, and the judgment also. Now it doth not appear that any judgment, for any crime whatsoever, was given in parliament against the said Lieut, col. John Lilburne. " 1. Before any judgment can be given in law against any Englishman, for any crime, there must be either an Indictment, presentment, or some information or accusation, against him, to that court that judgeth him, for some crime supposed to be committed by him. 2. The party accused must either appear before that court, or be out-lawed for not appearing. 3. If the party appears, he must either confess the crimes or misdemean- ors whereof he is accused, or else plead to the indictment, presentment, or information, or accusation against him, and come to trial thereupon. And as some of these ought in law to precede a judgment against any Eng- lishman, so also some of these afore-mentioned proceedings, in order to a lawful judgment, ought to be entered upon such record, wherein any such judgment is entered ; and unless it doth appear upon the record, wherein any judgment is entered against any Englishman for any crime, that some « Howell's State Trials,. vol. y, pp. 407-409. APPENDIX.] JOHN LILBXTENE. 69 such, proceeding as abovesaid, hath been made before the judgment passed against him, the judgment is to be holden for erroneous and void, and ought so to be reputed. Now it doth not appear either by the said pre- tended act, as it is recited in tlie indictment, nor by any record of the sup- posed judgment produced, nor any otherwise, that there was any indict- ment, presentment, or information to the parliament of the Commonwealth of England against the said Lieut, col. John Lilburne ; or even if there were, it doth not appear, that he ever appeared to the same, nor that he was ever outlawed for not appearing ; neither doth any pleading by the said lieut. col. John Lilburne to any such indictment or information appear, nor any trial of him for the same. And therefore if any such pretended judgment be entered, as the said supposed act, and the Indictment of John Lilburne, prisoner at the bar, thereupon, doth relate unto, the same is erroneous and void in law; and by consequence the said indictment is void." ^8 In his closing speech to the jury, he took the position that the act was void because unconstitutional ; and upon that ground he was acquitted, as appears from the subsequent examination of the jurors before the Council of State, where several substantially admitted this, by saying that they voted for acquittal because they were judges of the law as well as the facts, although two or three claimed that their verdict was on the ground of insufficient proof that he was the Lilburne described in the statute.*' "Concerning the act whereupon he was indicted, this he said: It was a lye and a falsehood: an act that hath no reason in it, no law for it ; it was done as Pharoah did; Resolved upon the question, that all the male children should be murdered. That if he died upon this Act, he died upon the same score that Abel did, being murdered by Cain. That the act was a void act, a printed thing, there being no one punctilio or clause in it, grounded on the law of England, and that it was an unjust, unrighteous, and treacherous act, and that he doubted not to shatter that act in pieces." °'' " As for all parliaments in general, he said parliaments were a delegated power, and ought to give a reason of all they do ; and that it was not in their power (as he had proved in his plea at large, before the Lord Chief Justice Rolls and Mr. Justice Bacon, May 18, 1647 ;) nor had they the least jurisdiction, to sentence him, or any of the least free-born Englishman; unless it be their own members. That all crimes whatever were to be heard, determined, and judged at the Common-law, and no where else. Acts of Attainder were not lawful." " For the Jury, he called them his honourable Jury, and said they were « Howell's State Trials, vol. v, pp. « Ibid., pp. 446-450. 438-439. ™ Ibid., p. 443. 60 JOHN LILBITKNE. [CHAP. I. the Keepers of the Liberties of England ; and will make it appear that the Jury are the Judges of the Law, as well as of the Fact. "Moreover he charged them to consider, Whether if I die on the Monday, the parliament on Tuesday may not pass such a sentence against every one of you twelve; and upon your wives and children, and all your relations ; and then upon the rest of the city, and then upon the whole county of Middlesex, and then upon Hertfordshire, and so by degrees there be no people to inhabit England, but themselves ? " " This is the first case in the history of jurisprudence, where an act of a national legislature was disregarded as unconstitutional. A large gathering of people was present at the trial resolved to rescue him by force if he were convicted. He seems to have been troubled no further, and it is said that Oliver Cromwell, who, though publicly his enemy, had reasons for not pushing him too far, subsequently paid him privately a pension equivalent to the pay of a lieutenant- colonel.*^ He died in 1657, less than forty years of age, but so long as civil liberty is preserved the name of John Lilburne should not be forgotten. 61 Howell's State Trials, vol. v, pp. 62 Oldmixon vol. 11, p. 419. 443-444. CHAPTER 11. NATURE OF THE CONSTITUTION AND THE PEEAMBLE. NULLIFICATION, SECESSION AND RECONSTRUCTION. § 11. Nature of the Constitution of the United States. The United States are a nation. The Union is not a league, and cannot be dissolved except by a revolution. These are prin- ciples which have been established by the adjudications of the courts, the action of Congress and the executive, the acquiescence of the States, and the arbitrament of war. The question lies at the foundation of the government, and on it the people of the country were for three-quarters of a century divided. Now that a generation is in power which accepts the decision, whether sound or erroneous, as final, the arguments on either side deserve a dis- passionate consideration. Those in favor of the legal right of secession are as follows : It is an axiom of political science that no law can bind a sovereign ; for a sovereign is above all law. The Articles of Confederation were a league between sovereign States. Those sovereign States formed the Constitution. It was drafted by their delegates and ratified by them separately. The right to withdraw from the Union, it has been claimed, was reserved by New York and Vir- ginia in their ratifications. It was called by its makers and statesmen, contemporary with its adoption, as well as since, a compact, a confederacy, and a federal government. The United States have the same name that was applied to them under the Articles of Confederation. There is nothing in the Constitution to show that it is a different bond. No clause of that instrument gives power to coerce a State. Such power was suggested in the Federal Convention, but rejected by a large majority. The States are expressly recognized in that instrument. Should they refuse to act, for example, by failing to elect Senators, the Union would cease to exist. It must then, it is contended, be a league or com- 61 62 NATUEE OF CONSTITUTION. [CHAP. II. pact, and nothing more. Now a compact, even between indiyid- uals, ceases to be binding on the breach of one of its conditions. International, law justifies the dissolution of a league for a similar reason. In the case of individuals the courts will determine whether on one side a breach has been made which relieves the other from the stipulations upon its part. There is no court with power to adjudicate between the claims of nations. Each inde- pendent State must be its own judge in such a case ; and when one determines that there is cause sufficient to itself for the dissolution of a league or treaty of alliance, the league is thereby dissolved, in view of international law as well as in fact, and the aggrieved party has no remedy but war. If the Constitution is a league, it is no longer binding upon any one of the States which has deter- mined to withdraw from it. The citizens of that State must, it is said, obey the will of the State in that respect, and in waging war under the State banner against the United States, they are not guilty of treason. The advocates of the prevailing view have denied that the States were sovereign before the adoption of the Constitution. They have denied that the States formed the Constitution, insist- ing that its preamble shows that it was adopted, not by the States, but by the people of the country at large, whose votes were taken in the States of their respective residence for convenience, without any legal signification. Even if the Constitution was formed by some of the States, they had the power to so merge themselves together in one nation as to make subsequent separation illegal. The proceedings of the Federal Convention, it is claimed, show that it was the intention of its members to establish a national form of government, and not a league. The fact that the docu- ment which they constructed terms itself a constitution and not a league, its provisions in other respects and the form of government which it creates operating directly upon the people, and not upon the States, with direct and popular representation in the lower house of Congress, and with a court having jurisdiction over States to act as a common umpire, all support the construction that it was its intention to establish an indissoluble union of indestructible States. The subsequent decisions of the Supreme Court of the United States, the action of the other departments § 12.j OKIGINAL SOVEEEIGNTY OF THE STATES. 63 of the government, the acquiescence of the States, and the result of the Civil War, have so firmly established this position, that its discussion now is less practical than academic. These con- tentions, however, will be considered separately. § 12. Sovereignty of the States before the Federal Constitution. Before the adoption of the Constitution, the several States who were parties to the Confederation were independent and sovereign. This theory, although disputed by high authority, seems to be established. Prior to the outbreak of the Revolution, the colonies were separate, connected with each other only through their com- mon dependence upon Great Britain, differing in the race of their inhabitants, the character of their occupations, and the nature of their religion. When the difficulties arose with Great Britain, at the outbreak of the Revolutionary War, they sent delegates to the Continental Congress, which superintended the conduct of the war, and which passed and promulgated the Declaration of Independence. The extent of the powers of the Continental Congress, which were neither limited nor authorized by any charter, written law, or constitution, depended upon the neces- sity of the respective cases which arose ; and it was in fact a provisional government.^ Had it continued thus until the adop- tion of the Federal Constitution, it might well have been claimed that the sovereignty was in its constituents at large, and that the several States were never sovereign or independent.^ Still, there, the members voted by States, and not as individuals, and were subject to be recalled by their constituencies at any time ; and the interference with local affairs was made usually in the form of recommendations rather than orders.^ When, however, the Articles § 12. 1 See Penhallow v. Doane's representation in accordance with Administrators, 3 Dallas, 54, 81, 91, their numbers. His motion, how- 93, 94, 111. ever, failed. (John Adams, Works, 2 At the opening of the Continental vol. ii, pp. 366-377; Curtis' Constitu- Congress in 1774, Patrick Henry said tional History, vol. i, pp. 9, 10.) that the colonial governments were Supra, §4. at an end, America was thrown into s The Continental Congress "(Erected one mass and in a state of nature. New York to arm and train her mili- and that consequently the people tia." Dane's Abridgement, vol. Ix, ought to be considered as entitled to Appendix, p. 39. 64 NATUEE OF CONSTITUTION. [CHAP. n. of Confederation were ratified, the sovereignty of the several States was distinctly recognized. They provide expressly that " Each State retains its sovereignty, freedom and independence, and every power, juvisdiction and right which is not hy this Confederation expressly delegated to the United States in Congress assemhled." * Thus we find in the first formal instrument which bound the States together, an express recognition of their sovereignty and independence. So, the bill of rights in the first Constitution of Massachu- setts : — "The people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign and independent State, and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right which is not, or may not hereafter be, by them expressly delegated to the United States of America in Con- gress assembled." ^ The treaties made by the United States with other nations, prior to the adoption of the Federal Constitution, also recognize either expressly or by implication, the independence and sover- eignty of the several States. The Treaty of Amity and Commerce with France in 1778, recites in its preamble that it was made between — * Articles of Confederation, II. concluded, "In the year of our Lord "The word sovereign, as applied to 1777, and of our sovereignty and inde- a State, was first adopted in the Con- pendenee the eleventh." In New Jer- federation, in the 2d article, and dis- sey, " In the year of our Lord 1786, continued with it, except in New and of our sovereignty and independ- Hampshire. The Constitution of New ence the eleventh." In New York, " In Hampshire, adopted February, 1792, the eleventh year of the independence is the same as the said 1st article, 4.th of the said State." In North Carolina, section, of the Massachusetts Bill of "In the eleventh year of our inde- Kights." (Dane's Abridgement, vol. pendenee, A.D. 1787." In Massachu- ix, Appendix, p. 29.) setts, "In the eleventh year of the 5 Massachusetts Constitution of independence of the United States of 1780, Part I, Article iv. The delegates America." In South Carolina, "In to the State conventions of ratification the year of our Lord 1787, and of the received commissions or credentials sovereignty and independence of the from their respective governors; United States of America the elev- which, in the case of Georgia, con- enth." (Stephens, Constitutional View tained the recital, "The State of of the War between the States, vol. i, Georgia by the grace of God, free, pp. 96-115.) sovereign, and independent," and § 12.] ORIGINAL SOVEREIGNTY OP THE STATES. 65 " The Most Christian King and the thirteen United States of North America, to wit, New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Mary- land, Virginia, North Carolina, South Carolina, and Georgia." ° It speaks synonymously of " The United States of America," and of " the said States ; " '' and of " the thirteen United States." ^ It refers to the ports, havens, roads, countries, islands, cities, towns, subjects, people and inhabitants ; and the benefit, conveniency and safety " of the said United States and each of them," and " of the said United States or any of them." ^ The plenipotentiaries on the part of the United States who signed the same are set forth in the preamble as : " The United States, on their part, having fully impowered Benjamin Franklin, Deputy from the State, of Pennsylvania to the General Con- gress, and President of the Convention of said State, Silas Deane, late Deputy from the State of Connecticut, to the said Congress, and Arthur Lee, Councellor at Law." -"^ The Treaty of Alliance with France, signed and ratified on the same date, similarly names the separate States as parties to the same : — ' ' The Most Christian King and the United States of North America, to wit : New Hampshire, Massachusetts Bay, Rhode Island, Connec- ticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia ; " ^' and the plenipotentiaries are similarly described.^ Similar lan- guage is found in the contract between the United States and the King of France in 1782, in regard to the payment of the French 8 U. S. E. S. relating to District of not be lawful for any foreign priva- Columbia and Post Eoads, and Public tears, not belonging to subjects of the Treaties, p. 203. Most Christian King nor citizens of ' Bbid., Article I, p. 204. the said United States, who have com- 8 Ibid., Article XXX, p. 212. missions from any other Prince or State 8 Ibid., Article III, IV, VI, VIII, XI, in enmity with either nation, to fit pp. 204, 205, 206, 207. In two articles, their ships in the ports of either the however, are references to the United one or the other of the aforesaid par- States as an entity. Article XX, "For ties," etc. Ibid. p. 209. the better promoting of commerce on i" Ibid., Preamble, p. 204. both sides, it is agreed that if a war n Ibid., p. 201. shall break out between the said two 12 Ibid., p. 203. nations, "etc. Article XXII : " It shall m NATURE OF CONSTITUTION. [chap. n. loan.is The contract between the King and the United States, upon the same subject, in 1783, recognizes the independence of the thirteen United States of North America, and refers through- out to those thirteen States.^* 13 U. S. E. S. relating to District of Columbia and Post Eoads, and Public Treaties, pp. 214-217. 1* " A contract between His Most Christian Majesty and the thirteen United States of North America, en- tered into at Versailles, on the 25th of February, 1783. ' ' The re-established peace between the belligerent Powers, the advanta- ges of a free commerce to all parts of the globe, and the independence of the thirteen United States of North Ame- rica, acknowledged and founded on a solid and honorable basis, rendered it probable that the said States would be in a condition to provide hereafter for their necessities by means of the re- sources within themselves without be- ing compelled to implore the continu- ation of the succours which the King has so liberally granted during the war ; but the Minister Plenipotentiary of the said United States to His Maj- esty, having represented to him the exhausted state to which they had been reduced by a long and disastrous war, His Majesty has condescended to take into consideration the request made by the aforesaid Minister, in the name of the Congress of the said States, for a new advance of money to answer numerous purposes of urgent and in- dispensable expenses in the course of the present year; His Majesty has in consequence determined, notwith- standing the no less pressing necessi- ties of his own service, to grant to Con- gress a new pecuniary assistance, which he has fixed at the sum of six millions livres toumois, under the title of loan, and under the guaranty of the whole thirteen United States, which the Minister of Congress has declared his acceptance of, with the liveliest acknowledgments, in the name of the said States." (Ibid., p. 217.) In Article II: "His Majesty here confirms, in case of need, the gratui- tous gift to the Congress of the said thirteen United States." (Ibid., p. 218.) Similar language is used in Article IV, (ibid. , p. 219) : ' ' and it is signed by the Ministers Plenipotentiaries of his Majesty and the Congress of the thir- teen United States of North America." (Ibid., p. 319.) In the first Article of the Treaty of France, in 1782, with Great Britain, " His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Ehode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South CarO' lina, and Georgia, to be free, sova reign and independent States ; that he treats with them as such, and for him- self, his heirs and successors, relin- quishes all claim to the Gouvemment, propriety and territorial rights of the same, and every part thereof ; and that all disputes which might arise in fu- ture on the subject of the boundaries of the said United States may be pre- vented, it is hereby agreed and de- clared that the following are and shall be their boundaries, viz. : " (Ibid., p. 261.) In the first article of the Treaty of France in 1783 with Great Britain, " His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay,Eho(Je Island and Providence Plantations, Connecticut, New York, New Jersey, § 12.] OKIGINAL SOVEKBIGNTY OF THE STATES. 67 In the provisions concerning the restitution of confiscated prop- erty, it is merely agreed that Congress shall recommend this to the Legislatures of the respective States, without any definite promise on the part of the United States, that the several States shall carry out said recommendations, as in fact many of them failed to do.^^ Similar language may be found in the provisional articles for this Treaty signed in 1782.16 The independence and sovereignty of the separate States was occasionally disputed even at that time. Thus, in the debates of the Federal Convention, Rufus King "wished, as everything depended on this proposition, that no objection might be improperly indulged against the phraseology of it. He con- ceived that the import of the term ' states,' ' sovereignty,' ' national,' ' federal,' had been often used and applied in the discussions inaccu- rately and delusively. The States were not ' sovereigns ' in the sense contended for by some. They did not possess the peculiar features of sovereignty — they could not make war, nor peace, nor alliances, nor treaties. Considering them as political beings, they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any proposition from such sovereign. They had not even the organs or faculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war. On the other side, if the union of the States comprises the idea of a con- federation, it comprises that also of consolidation. A union of the States is a union of the men composing them, from whence a national character results to the whole. Congress can act alone without the States, they can act (and their acts will be binding) against the instruc- tions of the States. If they declare war, war is de jure declared ; cap- tures made in pursuance of it are lawful ; no acts of the States can vary the situation, or prevent the judicial consequences. If the States, therefore, retained some portion of their sovereignty, they had certainly divested themselves of essential portions of it. If they formed a con- federacy in some respects, they formed a nation in others. The Con- vention could clearly deliberate on and propose any alterations that Pennsylvania, Delaware, Maryland, quishes all claims to the Government, Virginia, North Carolina, South Caro- propriety and territorial rights of the Una, and Georgia, to be free, sover- same, and every part thereof." (Ibid., eign and independent States ; that he p. 266.) treats with them as such, and for him- i^ ibid., p. 268. self, his heirs and successors, relin- " Ibid., pp. 261-264. 68 NATUEE OF CONSTITUTION. [CHAP. TX. Congress could have done under the Federal Articles. And could not Congress propose, by virtue of -the last article, a change in any article whatever, — and as well that relating to the equality of suffrage as any other? He made these remarks to obviate some scruples which had been expressed. He doubted much the practicability of annihilating the States ; but thought that much of their power ought to be taken from them." ^' Mr. Madison said: " Some gentlemen are afraid that the plan is not suflBciently national, while others apprehend that it is too much so. If this point of representation was once well fixed, we should come nearer to one another in sentiment. The necessity would then be discovered of circumscrib- ing more effectually the State governments, and enlarging more effectu- ally the bounds of the general government. Sovie contend that the States are sovereign, when in fact they are only political societies. The States never possessed the essential rights of sovereignty. They were always vested in Congress. Their voting as States in Congress is no evidence of their sovereignty. The State of Maryland voted by coun- ties. Did this make the counties sovereign? The States, at present, are only great corporations, having the power of making by-laws, and these are effectual only if they are not contradictory to the general con- federation."^' In the legislature of South Carolina, whicli recommended the State Convention of ratification. General Charles Cotesworth Pinck- ney, after quoting the Declaration of Independence, used these prophetic words : — ■ ' ' The separate independence and individual sovereignty of the sev- eral States were never thought of by the enlightened band of patriots " Madison Papers, Elliot's Debates, is a gradation from a simple cor.pora- 2d ed., vol. v, pp. 212, 213. tion for limited and specified objects, 18 Yates's Notes of Secret Debates, sucli as an incorporation of a number Elliot's Debates, 2d ed., vol i, p. 461. of mechanics, up to a full sovereignty Madison's own report of this speech, as preserved by independent nations which was published after his subse- whose powers are not limited. The quent report on the Virginia Kesolu- last only are truly sovereign." (Eufus tions, omits most of this language. King's Keport of Debates in Federal (Madison Papers, ibid., vol. V, p. 256.) Convention, June 29, 1787; Life and Kufus King thus reports the speech:— Correspondence, vol. i, p. 610. See "We are vague in our language, also Dr. Benjamin Eush, in his Ad- We speak of the sovereignty of the dress to the People of the United States. The States are not sovereign States, American Museum, January, in the full extent of the term. There 1787. § 12.] ORIGINAL SOVBKEIGNTY OF THE STATES. 6,9 who framed this Declaration ; the several States are not even mentioned by name in any part of it, as if it was intended to impress this maxim on America, that our freedom and independence arose from our Union, and that without it we could be neither free nor independent. Let us, then, consider all attempts to weaken this Union, by maintaining that each State is separately and individually independent, as a species of political heresy, which can never benefit us, but may bring on us the most serious distress. "■'' About the prior sovereignty of three at least of the United States, there can be no question. The States of North Caro- lina and Rhode Island at first refused to ratify the Federal Con- stitution. The new government was organized by eleven States on March 4, 1789. North Carolina did not ratify the Consti- tution until November 21 of the same year, and Rhode Island not till May 29, 1790. In the meantime, these States were con- sidered by themselves, as well as by the eleven United States, and were in fact, independent and foreign States.^" Texas declared her independence in 1835 and maintained it until 1845, when she was incorporated into the Union by an Act of Congress. Upon the other hand, it is hard to see how the new States, carved out of the national territory which was acquired by conquest, treaty, or cession from the other States, were ever sovereign or inde- pendent.^i 18 Elliot's Debates, 2d ed., vol. iv, measures for a speedy adoption of the pp. 301, 302. See also Wilson's re- Constitution, their boasted sovereign- marks on the nature of the Confeder- ty as an independent State will ere atlon. Considerations on the Bank long be at an end." of North America, "Wilson's Works, " Noeth Caeolina. This other for- vol. iii, pp. 406, 407. eign State has lately evinced a dispo- 20 The Massachusetts Magazine for sition to become a member of the March, 1789, says, in its summary of United States." The revenue laws put American News and Politics : them upon the same footing as foreign " Rhode Island. This foreign States, and there was no provision State has again refused to accede to a for them in- the first Judiciary Act. union with her late sisters. Anxiousof 1 Story's Laws of the U. S., pp. 30, 50, enjoying the protection of the Union, 53 ; Baldwin's Views, p. 96. the inhabitants of Newport, Provi- ^i In his valedictory to the Senate, dence and other places are determined Judah P. Benjamin, of Louisiana, ar- to sue for its protection and to be an- gued ingeniously that the United nexed to Massachusetts or Conneoti- States held the sovereignty of this cut, thereby to evince to their present territory in trust until the admission legislature, that unless they take of each new State. (Blaine's Twenty 70 NATURE or CONSTITUTION. [CHAP. n. It seems clear, however, that Marshall was right when he said : — ' ' As preliminary to the very able discussions of the Constitution which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these States anterior to its formation. It has been said that they were sov- ereign, were completely independent, and were connected with each other only by a league. This is true. But when these allied sovereigns converted their league into a government, when they converted their con- gress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature empow- ered to enact laws on the most interesting subjects, the whole character in which the States appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected." ^^ § 13. The Constitution was formed by the Thirteen States. It must also be conceded that the Constitution was formed by the thirteen States and not by the people of the United States at large. The delegates were in some cases elected by the people of the different States, and in others appointed by their respective legislatures. They voted in the Convention by States and not as individuals. The object of the ratification by the people of the several States was because.it was deemed that the legislatures had no power under their respective constitutions to delegate or grant away any power vested in them by the ratification of the Constitution.! These facts are plain to every student of the history of the appointment of the delegates to the Federal Convention, the proceedings of that Convention, and the ratifica- of the Constitution by the thirteen States. § 14. Form of Ratifications of the Constitution. The Constitution was ratified by the people of the thirteen States acting through conventions elected for that purpose. There is nothing in the form of the ratifications which supports Years in Congress, vol. i, pp. 249-251.) § 13. i See the Speech of Madison, Senator Yulee, of Florida, made a quoted infra, § 19. For the creden- similar claim. (Ibid.) tials of the delegates to the State 22 Chief Justice Marshall in Gibbons Convention, see awpra, § 12, note 5. V. Ogden, 9 Wheaton 1, 187. § 14.] FORM OF BATIFICATIONS. 71 the position that the Constitution was a league, or an amendment of the Articles of Confederation, or that the right to withdraw from it was reserved. Seven of them ran in the name of "We, the delegate.s of the people of the State." ^ That of Delaware was in the name of " We, the deputies of the people of the State of Delaware." That of New Jersey, "We, the delegates of the State of New Jersey." The ratifications of Massachusetts, South Carolina, New Hampshire, and North Carolina were in the third person, and in the name of "the Convention," or "this Conven- tion." All of them used the phrase "ratify." Eight of them, the phrase, " assent to and ratify." ^ That of Delaware stated that its deputies did "freely and entirely approve of, assent to, ratify and confirm the said Constitution." That of New Jersey, that they did "agree to ratify and confirm the same and every part thereof." That of Connecticut, " assent to, ratify, and adopt the Constitution." The same form was used by Georgia. The Con- vention of North Carolina resolved that it did "adopt and ratify the said Constitution and form of government." Each of them acted in the name and on behalf of the people of their respective State, and no others. The preamble of the ratification of Mas- sachusetts, however, recited that the Convention acknowledged, " with grateful hearts, the goodness of the Supreme Ruler of the universe, in affording the people of the United States, in the course of His Providence, an opportunity, deliberately and peaceably, without force or surprise, of entering into an explicit and solemn compact with each other, by assenting to and ratifying a new Constitution, in order to form a more perfect union," with a recital of the other clauses set forth in the preamble to the Federal Constitution. The use of the word "compact" here, if of any legal effect, can only strengthen the position of those who claim that the Constitution was a mere social compact between the whole people of the United States at large, and not a compact in the nature of a treaty between the people of the several States. § 14. 1 The States of Pennyslvania, ^ Pennsylvania, Massachusetts, Ma- Connecticut, Georgia, Maryland, Vir- ryland. South Carolina, New Hamp- ginla, New York and Bhode Island, shire, Virginia, New York and Ehode The forms of the credentials of the Island, delegates are quoted supra, § 12, note 5. 72 NATURE OF CONSTITUTION. [CHAP. n. The words " with each other " would have been replaced by some phrase, such as " between the people of each State," had that been the intent. Much stress is laid, by the advocates of secession, upon the declarations in the ratifications of Virginia and New York. The ratification of New York is preceded by a declaration of twenty- four articles concerning political rights and the construction of the Constitution. These are followed by the declaration, — ' ' Under these impressions, and declaring that the rights aforesaid can- not be abridged or violated, and that the explanations aforesaid are con- sistent with the said Constitution, and in confidence that the amend- ments which shall have been proposed to the said Constitution will receive an early and mature consideration, we, the said delegates, in the name and on behalf of the people of the State of New York, do by these presents assent to and ratify the said Constitution." Manifestly, this declaration of the understanding in New York, to which the other States did not accede, could have no bind- ing effect upon the construction of the instrument. It was not intended to be either a reservation or a condition. But there is nothing in those declarations which tends to support the right of secession. The only one upon which stress is laid is the third, which states — " That the powers of the government may be reassumed by the people, whensoever it shall become necessary to their happiness." This merely refers to the right of revolution which is recognized in the Declaration of Independence, and does not claim to be a reservation of any legal right of receding from the instrument thus ratified. Similar observations apply to the ratification of Virginia, which is preceded by the declaration — ' ' That the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall he perverted to their injury or oppression, and that every power not granted thereby remains with them, and at their will ; " and concludes : — " With these impressions, with a solemn appeal to the Searcher of all hearts for the purity of our intentions, and under the conviction that whatsoever imperfections may exist in the Constitution, ought rather to § 15.] LEGALITY OF AN INDISSOLUBLE UNION. 73 be examined in the mode prescribed therein, than to bring the union into danger by a delay with a hope of obtaining amendments pre- vious to the ratifications, we, the said delegates, in the name and in behalf of Virginia, do by these presents assent to and ratify the Con- stitution recommended on the 17th day of September, 1787, by the Federal Convention, for the Government of the United States, hereby announcing to all those whom it may concern, that the said Constitution is binding upon the said people according to an authentic copy hereto annexed in the words following." In the New York Convention, Lansing moved, a resolution which reserved the right to withdraw from the Union. Hamilton wrote for advice to Madison, who was in Congress at New York. The answer of Madison was read to the Convention by Hamilton as follows : — "My opinion is, that a reservation of a right to withdraw, if amend- ments be not decided on under the form of the Constitution within a certain time, is a conditional ratiScation ; that it does not make New York a member of the new Union, and, consequently, that she could not be received on that plan. The Constitution requires an adoption in toto and forever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short, any condition whatever must vitiate the ratification. The idea of reserving a right to withdraw was started at Richmond, and considered as a conditional ratification, which was itself abandoned as worse than a rejection." " % 15. liCgality of an Indissoluble Union between Sovereign States. The concessions, that the separate States prior to the Constitu- tion were sovereign and independent, and that the Federal Con- stitution was formed and ratified by them in their independent sovereign capacities, by no means compel the conclusion that they had no power to merge their several sovereignties into one. Metaphysicians have claimed that a sovereignty cannot thus com- mit suicide,^ but the arguments are merely a play upon words, and 3 Hamilton's Works, vol. ii, pp. 467- lies, by Bernard J. Sage, under the 471 ; quoted in Bancroft's History, ed. pseudonym of P. 0. Centz, Barrister, of 1886, vol. vi, p. 459. 4th ed., Part I, ch. vli, p. 48; Part § 15. 1 See the Republic of Kepub- II, ch. xiii, p. 142 ; ch. xiv, p. 147, 74 NATtJEE OP CONSTITUTION. [CHAP. II. the facts conclusively dispose of them. The sovereignty of a State, like that of a monarch, can be lost by abdication as well as by conquest. Without discussing the merger of the United States and Provinces of the Netherlands into the King- dom of Holland, and the different sovereignties of the Italian peninsula into the Kingdom of Italy, we have a case known to the makers of the Federal Constitution, with comments on it by a writer whom they and their contemporaries recognized as an authority .2 After the union of the crowns of Scotland and Eng- land by the succession of James VI of Scotland to the Enghsh throne in 1603, the countries remained separate kingdoms for more than a century. Under Queen Anne, in 1707, the two parliaments agreed to adopt twenty-five articles of union between the nations. The acts of ratification recite the acts of the Scotch Parliament, which established the church of Scotland and the four Scotch universities, and provide for a clause in the coronation oath promising the inviolable maintenance of the former, together with the English acts of uniformity, and all other acts then in force for the preservation of the church of England.^ The treaty covenanted and it was enacted that these acts "shall forever be observed as fundamental and essential conditions of the union." Blackstone said: — " Upon these articles and act of union, it is to be observed, 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again, except the mutual consent of both, or the success- ful resistance of either, upon apprehending an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be ' fundamental and essential conditions of the union.' " "It may justly be doubted whether even such an infringe- ment (though a manifest breach of good faith, unless done upon the most pressing necessity) would of itself dissolve the union; for the bare idea of a state, without a power somewhere vested to alter every ch. xiv, p. 155. Part III, ch. vi, p. Nov. 14, 1787; Ford's Essays on the 193. Part IV, oh. v, p. 307. This is Constitution, pp. 216, 217; and by by far the ablest argument in support Governor Randolph in the Virginia of the legal right of secession. Convention. Elliot's Debates, 2d ed., 2 The union between England and vol. iii, p. 196. See supra, § 4, note 4. Scotland was cited as an analogy by s See English Act, 5 Ann., c. 8, 1706; Eoger Sherman in the Letters of a si/pra, § 7, note 3. The Scotch Act was Countryman, New Haven Gazette, a year later. § 16.] NOT A LEGAL COMPACT. 75 part of its laws, is the height of political absurdity. The truth seems to be, that in such an incorporate union (which is well distinguished by a very learned prelate from a foederate alliance, where such an infringe- ment would certainly rescind the compact) the two contracting states are totally annihilated, without any power of a revival ; and a third arises from their conjunction, in which aU the rights of sovereignty, and particularly that of legislation, must of necessity reside." * These authorities would seem to be conclusive. And this posi- tion was conceded by Jefferson Davis, who said : — " No doubt the States — the people of the States — if they had been so disposed, might have merged themselves into one great consolidated State, retaining their geographical boundaries merely as matters of con- § 16. The Constitution is not a Legal Compact. The Constitution is in no legal sense a compact between the States. That it is, has been the contention of the advocates of nullification and secession.^ They base their position on the fact that it has been called a compact by statesmen at the time of its * Blackstone's Commentaries, vol. the kirk in Scotland. But it should i, p. 97, note citing Warburton's seem neither prudent, nor perhaps Alliance, 195. consistent with good faith, to venture Blackstone continues in the same upon either of those steps, by a spon- note : " But the wanton or imprudent taneous exertion of the inherent pow- exertion of this right would probably ers of Parliament, or at the instance raise a very alarming ferment in the of mere individuals. So sacred indeed minds of individuals; and therefore are the laws above mentioned (for it is hinted above that such an at- protecting each church and the Eng- tempt might endanger (though by no lish liturgy) esteemed, that in the means destroy) the union. Regency acts both of 1751 and 1765 " To illustrate this matter a little the regents are expressly disabled farther, an act of Parliament to repeal from assenting to the repeal or alter- or alter the act of uniformity in Eng- ation of either these or the act of land, or to establish episcopacy in settlement." Ibid., p. 96. Scotland, would doubtless in point of ^ Davis, Rise and Fall of the Con- authority be sufficiently valid and federate Government, vol. i, p. 155. binding; and notwithstanding such § 16. i See Calhoun's speech in the an act, the union would continue un- Senate, Feb. 26, 1833, in reply to Web- broken. Nay, each of these measures ster's attack on his resolutions in re- might be safely and honorably pur- gard to the Force Bill. Niles' Eegis- sued, if respectively agreeable to the ter, vol. xliii. Sup. p. 259 ; Sage's The sentiments of the English church, or Republic of Republics, passim. 76 NATTJBB OP CONSTITUTION. [CHAP. H. adoption ^ and since, even by some such as Webster,^ who denied the corollary that a breach by some of the parties legally absolved from obedience the rest. The difficulty here lies in the fact that the term is used by nearly- all whom they quote in a colloquial and not a legal sense. Most laws as well as constitutions are the result of compromises of which men speak as compacts. At the birth of the Constitution, more than now, this term was common, since there were then more disciples of the theory that all law was based on the social con- tract.* A gross breach of such a compromise, whether contained in a statute or a constitution, would, it was conceded, release the injured party from all further obligations. But the latter's action, although justified morally, was none the less illegal, and, where a people was a party, could only be accomplished by a revolution. When James II was deposed, it was resolved by the two Houses of Parliament that — " King James the Second, having endeavored to subvert the Consti- tution of the kingdom by breaking the original contract between the King and the people, and having, by the advice of Jesuits and other wicked persons, violated the fundamental law, and withdrawn himself out of the kingdom, hath abdicated the government, and that the throne is thereby become vacant." Yet the proceeding is not justified as legal, but is always described as "the glorious revolution of 1688." An able work by an advocate of the South, just before the Civil War, argues that — ' ' The Constitution is indeed a compact between States, but it is also a compact between slaveholding and non-slaveholding sections ; and these sections are susceptible of obligations and injuries." ^ 2 See Gouverneur Morris, quoted in in Boston, Deo. 3, 1819, consisting of his Life, vol. iii, p. 193 ; Hamilton in Daniel Webster, Josiah Quiney, and the Federalist, No. 85 ; "Washington to others. Boston, Samuel Phelps, Prin- David Stuart, Oct. 17, 1787 ; and other ter, 1819 ; Sage's Republic of Eepublics, quotations in Sage's The Eepublic of Appendix F. Republics, 4:th ed., pp. 202-207. ^ "In some sense even government 3 See the Memorial to Congress on itself is a contract." Brown v. Bank, the Subject of Restraining the Increase 8 Mass., 448. of Slavery in New States to be admitted ^ The Lost Principle, by Barbarossa, into the Union, prepared by a com- Richmond, 1860. mittee appointed at a Public Meeting § 16.] NOT A LEGAL COMPACT. 77 And his arguments in support of the latter are as cogent as those advanced on behalf of the former theory. Yet no lawyer would seriously argue to a court that either of these sections can be a person which can bind and unbind itself any more than it could sue or be sued. Others, as Hayne, speak of the new government created by the Constitution as a party to the compact : — "Here, then, is a case of a compact between sovereigns; and the question arises, what is the remedy for a clear violation of its express terms by one of the parties." . . . . " The creating power is three-fourths of the States. By their decision .the parties to the compact have agreed to be bound, even to the extent of changing the entire form of the government itself ; and it follows of necessity, that, in case of a de- liberate and settled difference of opinion between the parties to the compact, as to the extent of the powers of either, resort must be had to their common superior (that power which may give any character to the Constitution they may think proper), viz., three-fourths of the States." ^ The exposure of this fallacy by Webster needs no words of comment : — " His argument consists of two propositions, and an inference. His propositions are — " 1. That the Constitution is a compact between the states. "2. That a compact between two, with authority reserved to one to interpret its terms, would be a surrender to that one, of all power whatever. "3. Therefore (such is his inference) the general government does not possess the authority to construe its own powers. " Now, sir, who does not see, without the aid of exposition or de- tection, the utter confusion of ideas involved in this so elaborate and systematic argument? " The Constitution, it is said, is a compact between States : the States, then, and the States only, are parties to the compact. How comes the general government itself a party? Upon the honorable gentleman's hypothesis, the general government is the result of the 8 Mr. Hayne's Reply to Mr. Web- ment in Milllgan's case said: "That star, abridged by himself, delivered was the compact made with the gen- in the Senate, January 27, 1830. EUi- eral government at the time it was ot's Debates, 2d ed., vol. iv, pp. 509- created." 513. So Judge J. S. Black in his argu- 78 NATURE OF CONSTITUTION. [CHAP. II. compact, the creature of the compact, not one of the parties to it. Yet the argument, as the gentleman has now stated it, makes the government itself one of its own creators. It makes it a party to that compact to which it owes its own existence. "For the purpose of erecting the Constitution on the basis of a compact, the gentleman considers the States as parties to that compact ; but as soon as his compact is made, then he chooses to consider the general government, which is the offspring of that compact, not its offspring, but one of its parties ; and so, being a party, has not the power of judging on the terms of compact. " If the whole of the gentlemen's main proposition were conceded to him — that is to say, if I admit, for the sake of the argument, that the Constitution is a compact between States — the inferences which he draws from that proposition are warranted by no just reason ; be- cause, if the Constitution be a compact between States, still that Con- stitution, or that compact, has established a government with certain powers ; and whether it be one of those powers, that it shall construe and interpret for itself the terms of ttie compact, in doubtful cases, can only be decided by looking to the compact, and inquiring what pro- visions it contains on this point. Without any inconsistency with natural reason, the government, even thus created, might be trusted with this power of construction. The extent of its powers, therefore, must still be sought for in the instrument itself." ' The whole phraseology of the Constitution is in conflict with the one theory as much as with the other. In contradistinction with the preceding instrument of union, it does not call itself a ' Webster's Keply to Hayne, EUi- isted and was complete, through those ot's Debates 2d ed., vol. iv, pp. 516- ratifications, declared in itself to be 517. This point is yielded by the sufficient for the establishment of it, acute and learned author of The Ke- many months before the general gov- publio of Kepublics, 4th ed., pp.259- ernment existed. After the collective 260 : " The Fourteenth Party to the States, in the Congress of themselves, Compact was, according to Eobert Y. had recognized the finished compact, Hayne and Judge J. S. Black, the gov- and advised the States to act under it, ernment, which could not have had by electing their subjects as its func- any existence till long after the eleven tionaries ; after the several States had states had ratified, established, and elected their quotas, according to the finished said compact." Afterquoting expressterms; and after these electees them : — had convened and organized under the "Other eminent men make the same said pact; then and not till then did mistake, so that the confusion of Ideas or could the general government ex- on this subject is general. It is only ist. It is then absurd to call the gov- necessary to say that the compact ex- ernment a party." §16.] NOT A LEGAL COMPACT. 79 league,^ nor a compact, nor articles of confederation ; ^ but a Con- stitution,!** wMch is ordained and established,^! which vests powers •in a government ; ^ and which shall be the supreme law of the land, by which the judges in every State shall be bound, anything in the Constitution or laws of any State to the contrary notwithstanding.^^ The Constitution is founded upon compact, but is not itself a compact." * Articles of Confederation, III. ^ Preamble and concluding clause of Articles of Confederation. 1" See Webster's Speech in the Sen- ate, Feb. 16, 1833, against Calhoun's Kesolutions; Niles's Eegister, xliii, Appendix, p. 170. 11 Preamble. 12 Article I, § 8, concluding clause. " Ibid., Article YI. 14 Mr. Patterson's plan ; the second, by real legislation, as proposed by the other plan. Coercion he pronounced to be impracticable, expensive, cruel to individuals. It tended, also, to habituate the instruments of it to shed the blood, and riot in the spoils of their fellow-citizens, and consequently train them up for the service of ambition. We must resort, therefore, to a national legislation over individuals; for which Congress are unfit. To vest such power in them would be blending the legislative with the executive, contrary to the received maxim on this subject. If the union of these powers, heretofore, in Congress has been safe, it has been owing to the general impotency of that body. Congress are, moreover, not elected by the people, but by the legislatures, who retain even a power of recall. They have, therefore, no will of their own; they are a mere diplomatic body, and are always obsequious to the views of the States, who are always encroaching on the authority of the United States. A provi- sion for harmony among the States, as in trade, naturalization, etc. ; for crushing rebellion, whenever it may rear its crest ; and for certain other general benefits, must be made." ' ' The powers for these purposes can never be given to a body inade- quate as Congress are in point of representation, elected in the mode in which they are, and possessing no more confidence than they do : for, notwithstanding what has been said to the contrary, his own expe- rience satisfied him that a rooted distrust of Congress pretty generally prevailed. A national government alone, properly constituted, will answer the purpose ; and he begged it to be considered that the present is the last moment for establishing one. After this select experiment, the people will yield to despair." " Madison said, however : — ' ' Much stress has been laid by some gentlemen on the want of 1* Madison Papers. Elliot's Debates, 2d ed., vol. v, p. 198. § 17.] PKOCEEDINGS IN CONVENTION. 89 power in the Convention to propose any other than a federal plan. To what had been answered by others, he would only add, that neither of the characteristics attached to a federal plan would support this objec- tion. One characteristic was, that, in & federal government, the power was exercised not on the people individually, but on the people col- lectively, on the states. Yet in some instances, as in piracies, captures, etc., the existing Confederacy and in many instances the amendments to it proposed by Mr. Patterson, must operate immediately on in- dividuals. The other characteristic was, that a federal government derived its appointments not immediately from the people, but from the States which they respectively composed. Here, too, were facts on the other side. In two of the states, Connecticut and Ehode Island, the delegates to Congress were chosen, not by the legislatures, but by the people at large ; and the plan of Mr. Patterson intended no change in this particular." ^° Dickinson from New Jersey moved to postponeHhe first resolu- tion of Mr. Patterson's plan in order to take up the following : — ' ' That the Articles of Confederation ought to be revised and amended, so as to render the government of the United States adequate to the exigencies, the preservation, and the prosperity of the Union." -"^ The postponement was agreed to by ten States, Pennsylvania be- ing divided; but the resolution after debate was defeated by six States to four. Connecticut, New York, New Jersey, Delaware, ay, 4 ; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no, 6 ; Maryland, divided.^'^ The Committee of the Whole at which the question had been discussed, finally agreed to rise and report the propositions as previously adopted without alteration. Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 7; New York, New Jersey, Delaware, no, 3 ; Maryland divided.^^ The first resolution "that a national government ought to be established, consisting of a supreme legislative, executive and judiciary," was then taken up in the Convention. " Mr. EUsworth, seconded by Mr. Gorham, moves to alter it, so as to run ' that the government of the United States ought to consist of a supreme legislative, executive and judiciary.' This alteration, he said, 16 Madison Papers, Elliot's Debates, i^ ibid., p. 206. 2d ed., vol. v, p. 206. " Ibid., pp. 211, 212. 16 Ibid., p. 198. 90 NATURE OF CONSTITTJTION. [CHAP. TX. would drop the word national, and retain the proper title ' the United States.' He could not admit the doctrine that a breach of any of the Federal Articles could dissolve the whole. It would he highly danger- ous not to consider the Confederation as still subsisting. He wished, also, the plan of the Convention to go forth as an amendment of the Articles of the Confederation, since, under this idea, the authority of the legislatures could ratify it. If they are unwilling, the people will be so too. If the plan goes forth to the people for ratification, several succeeding conventions within the States would be unavoidable. He did not like these conventions. They were better fitted to pull down than to build up constitutions. "Mr. Randolph did not object to the change of expression, but apprised the gentleman who wished for it, that he did not admit it for the reasons assigned ; particularly that of getting rid of a reference to the people for ratification. " The motion of Mr. Ellsworth was acquiesced in, nem. con." " Subsequently, when the clause defining treason was considered, Luther Martin moved an amendment. ' ' Provided, that no act or acts done by one or more of the States against the United States, or by any citizen of any one of the United States, under the authority of one or more of the said States, shah be deemed treason, or punished as such ; but in ease of war being levied by one or more of the States against the United States, the conduct of each party towards the other, and their adherents respectively, shall be regulated by the laws of war and of nations." The proposition seems to have had no other supporter.^" The fact that in the Federal and State conventions speakers repudiated the idea of the application of coercion against the States does not support the view that the Federal Government cannot suppress a rebellion supported by the officers and people of a State. It appears from these debates as well as elsewhere in these proceedings, that, forewarned by the experience of the Confedera- tion, when States refused obedience to the laws of Congress, and suggestions were made of their coercion by armed force, the w Madison Papers, Elliot's Debates, Elliot's Debates, 2d ed., vol. i, p. 383. 2d ed., vol. v, p. 214. No reference to it is to be found in * It is only mentioned in Martin's either the Journal or any of the reports. Letter to the Maryland Legislature. It probably was not even seconded. § 17.j PBOCEEDINGS IN CONVENTION. 91 delegates intended to frame a new form of government whicli would enforce the Federal laws by treating tlie attempted hostile State legislation as a nullity and appljdng force, not to the State government, but to the individual citizens of the State who re- sisted, even though they might be State officials. It was said by Ellsworth, in the Connecticut Convention : — "We see how necessary for the Union is a coercive principle. No man pretends the contrary; we aU see and feel this necessity. The only question is. Shall it be a coercion of law, or a coercion of arms ? There is no other possible alternative. Where will those who oppose coercion of law come out ? Where will they end ? A necessary conse- quence of their principles is a war of the States, one against the other. I am for coercion by law — that coercion which acts only upon de- linquent individuals. This Constitution does not attempt to coerce sovereign bodies. States, in their political capacity." ^^ So Madison said in the Virginia Convention, when defending the clause which gives to Congress power concurrent with the States to call forth the militia to suppress insurrections and repel invasions : — ^ " A concurrence in the former case is necessary, because a whole State may be in insurrection against the Union." "' Luther Martin wrote to the Maryland Convention : — " The time may come when it shall be the duty of a State, in order to preserve itself from the oppression of the general government, to have recourse to the sword ; in which case, the proposed form of gov- ernment declares that the State, and every one of its citizens who acts under its authority are guilty of a direct act of treason." ^* It seems plain, therefore, that the Convention determined, after full discussion, to adopt a plan national in form ; but, to conciliate prejudice, avoided the use of the name. Since then until late years, writers judicial, political, and academical have, usually eschewed the word, national, and substituted for it "federal." Although since the Civil War the term. National Government, has come into common use, we still ordinarily speak of Federal 21 Elliot's Debates, 2d ed., vol. il, 22 Constitution, Article I, Section 8. p. 197. See the remarks of Roger 28 Elliot's Debates, 2d ed., vol. iii, Sherman in the Federal Convention. p. 424. Ibid., vol. V, p. 450. =* Ibid., vol. i, p. 382. 92 THE PREAMBLE. [CHAP. n. practice in the Federal courts. But as appears by the Congres- sional resolution quoted at the beginning of this section, as well as in the debates in the Conyention, the phrase, federal, is not inconsistent with, national. § 18. History of the Preamble. The change in the nature of the government of the United States from the league embraced in the Articles of Confederation to a Constitution indissoluble by law appears not only in the manner in which the Constitution operates, but also in its pre- amble. "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 secm-e the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." The preamble to the instrument which the Constitution abro- gated is as foUows : — ' ' Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts, Rhode Island and Providence Plan- tations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. The third of the Articles of Confederation is : — ' ' The said States hereby severally enter into a firm league of friend- ship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever." The second Article of the New England Confederation of 1643 provided that : — "The said United Colonies, for themselves and their posterities, do joyntly and severally, hereby enter into a firme and perpetuall league of friendship and amytie, for offence and defence, mutuall advise and succour, upon all just occations both for preserveing and propagateing the truth and liberties of the Gospel, and for their owne mutuall safety and weUfare." ^ § 18. 1 Preston's Documents Illustrative of American History, p. 88. § 18.] THE PREAMBLE. 93 The first appearance of the preamble in the reports of the Con- vention is in Charles Pinekney's plan as now preserved, where it is in the same form as in the draft of the Committee of Detail.^ His plan was referred to that Committee together with the resolu- tions specifically adopted, of which the first was : — " Resolved, that the government of the United States ought to con- sist of a supreme legislative, judiciary and executive." ' In the report of the Committee of Detail, the preamble ap- peared : — " We, the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and estab- lish, the following Constitution for the government of ourselves and our posterity : — "Article I. The style of the government shall be, 'The United States of America.' " * At that time it had not been determined to ignore that part of the Articles of Confederation which required unanimous consent to any amendment of the same.^ After the Convention had de- cided that a ratification by nine States should be sufficient to establish the Constitution between themselves, the Committee of Style, without any apparent discussion of the subject in the Con- vention, changed the preamble to its present form. The substitu- tion of the phrase, "people of the United States," for "the people of the States of New Hampshire " and the other twelve States, had evidently no signification except to make it clear that the United States might consist of a less number than the original thirteen. 2 Madison Papers, Elliot's Debates, bates, 2d ed., vol. v, p. 578, quoted 2d ed., vol. v, p. 129. In the opinion before, §17, note 4.) The preamble of Mr. Madison, this copy contains seems more likely to be correct than many alterations made by the other any other part of the paper, in the original paper during the prog- ^ Ibid., p. 375. ress of the Convention. (Appendix, ^Xbid., pp. 376, 377. No. 2, to Madison Papers, Elliot's De- ^ Articles of Confederation, XIII. 94 THE PKEAMBLE. [CHAP. 11. % 19. Significance of the Phrase, "We the People of the United States." From the use of the phrase, "We the people of the United States," some writers of respectable authority have argued that the Constitution was adopted by the people of the United States at large, and not by the people of the different States which ratified the Constitution. The best statement of this view is that of Webster : — " It," the Constitution, " declares that it is ordained and established by the People of the United States. So far from saying that it is established by the governments of the several States, it does not even say that it is established by the people of the several States. But it pronounces that it is established by the people of the United States in the aggregate. Doubtless the people of the several States taken col- lectively constitute the people of the United States, but it is in this their collective capacity, it is as all the people of the United States that they establish the Constitution." ^ The history of the formation and ratification of the Constitution contradicts these statements. As originally drawn the preamble ran, " We the people of " the thirteen States, each of which was specifically named. It was then intended not to violate the Articles of Confederation, but to require unanimous consent to the change. When, at a later session, the Convention ventured to require the assent of but nine States to put the new govern- ment in force, the language was altered so that it might serve in such a case ; and no other intent was suggested or contemplated. The States did accede to the Federal Constitution. Each State § 19. 1 Webster's Eeply to Hayne. expressly chosen for the purpose It is thus put by the historian within each State, independently of Motley: "The Constitution was not the State governments, after the pro- drawn up by the States, it was not ject had been framed." (JohnLothrop promulgated in the name of the States, Motley's letter to the London Times, it was not ratified by the States. The Kebellion Kecord, vol. i, p. 210.) The States never acceded to it, and possess most elaborate argument in its support no power to secede from it. It was is in the Appendix to volume ix of 'ordained and established' over the Dane's Abridgment, which was pub- States by a power superior to the lished immediately after the debate States — by the people of the whole between Hayne and Webster on land in their aggregate capacity, act- Foote's Resolutions. See also Story ing through conventions of delegates on the Constitution, §§415-418, 463. §19-] "WE THE PEOPLE." 95 Convention acted and claimed to act only in the name of the people of its own State.^ The reasons for requiring a ratification by the people of each State instead of the State legislatures were principally the grave doubts as to the power of the State legislatures to delegate to Congress part of the legislative powers vested in them by their respective peoples ; but also the intention to deprive those legis- latures of all claim to the right of secession, and to give to the Constitution the sanction of a fundamental law ordained by all the people upon whom it operated. These views were thus expressed by Madison : — ' ' Mr. Madison thought it clear that the legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions ; and it would be a novel and dangerous doctrine, that a legislature could change the Constitution under which it held its existence. There might indeed be some Constitutions with- in the Union, which had given a power to the legislatm-e to concur in alterations of the federal compact. But there were certainly some which had not ; and, in the case of these, a ratification must of neces- sity be obtained from the people. He considered the difference be- tween a system founded on the legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a constitution. The former, in point of moral obligation, might be as in- violable as the latter. In point of political operation, there were two important distinctions in favor of the latter. First, a law violating a treaty ratified by a pre-existing law might be respected by the judges as a law, though an unwise or perfidious one. A law violating a con- stitution established by the people themselves would be considered by the judges as null and void. Secondly, the doctrine laid down by the law of nations in the case of treaties is, that a breach of any one article by any of the parties frees the other parties from then- engagements. In the case of a union of people under one constitution, the nature of the fact has always been understood to exclude such an interpre- tation. Comparing the two modes, in point of expediency, he thought all the considerations which recommended this Convention, in prefer- ence to Congress, for proposing the reform, were in favor of State Conventions, in preference to the legislatures, for examining and adopt- ing it." * 2 Supra, § 13. See the Federalist, » Madison Papers, Elliot's Debates, No. xxxix, quoted infra, § 28. 2d ed., vol. v, pp. 355, 356. 96 THE PKEAMBLB. [CHAP. H. § 20. Signiflcance of tlie Plirase " to form a more perfect Union." The concluding Article of Confederation provided that "the Union shall be perpetual." Patterson claimed in the Federal Convention, that no State could lawfully withdraw from it with- out the consent of the rest : — " The Confederation is in the nature of a compact ; and can any State, unless by the consent of the whole, either in politics or law, withdraw their powers ? Let it be said by Pennsylvania and the other large States that they for the sake of peace consented to the Confederation; cnn she now resume her original right without the consent of the others ? " ' In a letter to Congress by Washington, written by the unani- mous order of the Convention : — ' ' In all our deliberations on this subject we kept constantly in our view that which appears to us the greatest interest of every true American, the consolidation of our Union — in which is involved our prosperity, felicity, safety, perhaps our national existence." ^ It is clear that it was the intention of the Constitution that the former union should continue more perfect, more consolidated, and be perpetual.^ " The Union of the States never was a purely artificial arbitrary rela- tion. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographi- cal relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to ' be perpetual.' And when these Articles were found to be inade- quate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be in- dissoluble if a perpetual Union, made more perfect, is not? But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self- government by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every § 20, 1 Yates' Minutes, Elliot's De- ^ Madison Papers, Elliot's Debates, bates, 2d ed., vol. iv, p. 413. 2d ed., vol. v, pp. 535, 536. s See Texas v. "White, 7 Wall. 700. §21.] "TO ESTABLISH JUSTICE." 97 power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that ' the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,' and that ' without the States in union, there could be no such political body as the United States.' Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of theu' governments, are as much within the design and care of the Constitution as the preservation of the Union and the main- tenance of the National Government. The Constitution, in all its pro- visions, looks to an indestructible Union, composed of indestructible States."* Every clause in the Constitution in -which it differed from the Articles of Confederation was designed to make the Union " more perfect." § 21. Significance of the Phrase, "to Establish Justice." The phrase " to establish justice " is not found in the Articles of confederation. One of the chief evils vsrhich called the Federal Convention together was the "necessity of providing more effectually for the security of private rights, and the steady dispensation of justice. Interferences with these were evUs which had, more perhaps than anything else, produced this Convention. "Was it to be supposed that republican liberty could long exist under the abuses of it practiced in some of the States ? " ^ There was no Federal court to enforce rights of property secured by treaties and to hold invalid acts of State legislatures in contravention of treaty rights or for the prevention of the collection of debts due domestic as well as foreign creditors. For this reason, in order to establish justice, there was inserted in the Constitution an article,^ providing for courts of the United * Chief Justice Chase in Texas v. vention. Madison Papers, Elliot's De- White, 7 Wall. 700, 724-725. bates, vol., v, p. 162. § 21. 1 Madison in the Federal Con- " Article III, infra. 98 THE PREAMBLE. [CHAP. n. States; the direction that "tliis 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 notwithstand- ing ; " ^ and the inhibitions against the enactment by the States of tender laws, bills of attainder, and laws impairing the obligations of contracts.* The prohibitions to the United States, as well as the States, of the enactment of bills of attainder and ex post facto laws,^ and the recognition of debts contracted by the United States before the adoption of the Constitution, were also designed for this end. The beneficial effects of these prohibitions cannot be overestimated.^ § 22. Significance of the Phrase " to Insure domestic Tranquillity." The Articles of Confederation provided no means for the insurance of domestic tranquillity. Congress could not, without the consent of the States, raise the money to arm and to pay an army with which to protect itself from domestic insult. It was at one time driven from the seat of government by a mutiny of = Article VI, infra. the people established. All the original * Article I, § 10, infra. States undertook to secure the inviolar 5 Article I, §§ 9 and 10, infra. bility of private property. This they 8 " The founders of our democratic, did, either by extracting and adopting, or rather republican institutions were in terms, the famous thirty-ninth article neither visionaries nor socialists. It is of Magna Charta, securing the people among the eternal lessons of history, from arbitrary imprisonment and arbi- ■which they well knew, that the masses trary spoliation, or by claiming for of the people were subject to the in- themselves, compendiously, all of the fluenoe of supposed temporary interests, liberties and rights set forth in the and of ' violent and casual forces ' which Great Charter." Argument of Hon. might be in conflict with their own vital John F. Dillon, in Reagan v. Farmers' and permanent welfare. Eealizing this Loan & Trust Co., 154 U. S. 362, 379. truth, and the necessity of safe-guarding " These have been, indeed, the great these vital and permanent interests, the triumphs of our popular system of founders of our political and legal in- government, for these were supposed to stitutions devised — and the device has be its vulnerable spots. Disbelievers been supposed to be the crowning proof in republican institutions had. predicted of their wisdom — the American polity early shipwreck on these rocks, and of constitutional restraints upon all the when it came not they simply postponed departments of the governments which the period of fulfilment." Ibid., p. 381. §§ 23, 24.] « COMMON DEFENSE." 99 eighty soldiers.^ The power of taxation which is granted in the Constitution was designed for that as well as other ends. Con- gress under the Confederation was similarly unable to assist in suppressing rebellions within the individual States. Even its right to do so, did it have the means, rested on a forced con- struction.2 For this reason, there was inserted the express provision that ' ' 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."* § 23. Signlflcance of the Phrase, " to provide for the commoii Defense." Provision for the " common defense " was one of the express objects of the Confederation of the United States,^ and was more efficiently secured by the Constitution. The New England Confederation was formed " for offence and defence, mutuall advise and succour."^ The Constitution fur- nishes new means for that purpose in its provisions for raising armies ^ and taxation.* § 24. Signiflcance of the Phrase, "to promote the general Welfare." The United Colonies of New England confederated, amongst other things, " for their own mutuall safety and welfare." ^ The Ar- ticles of Confederation of the United States expressed the object of the league as for " their mutual and general welfare." ^ The word " general welfare " was used in the Constitution as broader than and inclusive of the word "mutual." The clause granting Congress the power of taxation limits its exercise " to pay the debts and provide for the common defense and general welfare of the § 22. 1 Supra, § 3, note 12. ^ infra. 2 Supra, § 3. * Infra. ' Article IV, § 4 ; infra. § 24. i Preston's Documents lUus- § 23. 1 Articles of Confederation, trative of American History, p. 88^ III. quoted supra, § i, note 1. 2 Supra, § 4. ^ Articles of Confederation, III. 100 THE PREAMBLE. [CHAP. H. United States." ^ The phrase in the latter clause has been the ex- cuse for the exercise of all doubtful powers by Congress, and will be considered more appropriately in connection with the power of taxation.* Neither this nor any other part of the preamble is a grant of power.^ § 25. Significance of the Phrase, " to secure the Blessings of Liberty." The New England Confederation of 1643 assigned as an object of the league, " for preserveing and propagateing the truth and liberties of the Gospel."^ The experience of a century had taught the people that political liberty was more in danger, if not of more importance ; and the Articles of Confederation of the United States included in the enumeration of their objects, "the security of their liberties."^ It required almost another hundred years for them to learn to extend the blessings of liberty to the people of every race within their borders. § 26. Significance of the Phrase, "Ordain and Establish." The words " ordain and establish " are inconsistent with the theory that the new government was a league or treaty. They are words usually applied to legislation, especially legislation of an extraordinary character. Ordinances by the common law were originally regulations made by the King without the consent of Parliament. In 1641, when the Commons were discussing the manner in which Parliament could legislate without the consent of Charles, the antiquary D'Ewes, referring to an ancient prece- dent which did not support his position, boldly asserted they had the right to pass laws in the form of ordinances without the con- sent of the Crown.^ The suggestion was applauded, and almost 3 Constitution, Article I, § 8. Parliament. It did not take effect till * Infra. it passed the Lords. The name and 5 Story on the Constitution, § 462. form were suggested by the antiqua- See infra. rian D'Ewes, who cited a precedent § 25. 1 Quoted awpra, § 4 note 1. of 1373 under Edward III, which did ^ Articles of Confederation, III. not apply, since that, like all other §26. 1 The first ordinance which previous ordinances, was made by the passed the Commons, was in 1641, au- King without the consent of Parlia- thorizing commissioners to proceed to ment. Gardiner's Fall of the Mon- Edinburgh to treat with the Scottish archy of Charles I, vol. i, p. 238. §26.] "OEDAIN AND ESTABLISH. 101 invariably during the Great Rebellion until the abolition of the office of King, Parliament legislated by ordinance. The Con- tinental Congress and Congress under the Confederation usually proceeded by ordinances or resolutions. The first Constitutions of Pennsylvania, Vermont and Massachusetts contain the phrase "ordain and establish." Those of New York and Georgia, " ordain and declare." ^ 2 The Constitution of Pennsylvania, framed by a popular convention ■which sat from July 15th to September 28th, 1776, recites in its preamble : — "We, the representatives of the freemen of Pennsylvania, in general convention met, for the express pur- pose of framing such a government, confessing the goodness of the Great Governor of the universe (who alone knows to what degree of earthly hap- piness mankind may attain, by per- fecting the arts of government) in permitting the people of this State, by common consent, and without violence, deliberately to form for themselves such just rules as they shall think best, for governing their future so- ciety ; and being fully convinced that it is our indispensable duty to estab- lish such original principles of gov- ernment as will best promote the general happiness of the people of this State, and their posterity, and provide for future improvements, without partiality for, or prejudice against any particular class, sect, or denomination of men whatever, do, by virtue of the authority vested in us by our constituents, ordain, declare, and establish, the following Declaration of Rights and Frame of Government, to be the Constitution of this common- wealth, and to remain in force therein forever, unaltered, except in such articles as shall hereafter on experi- ence be found to require improvement, and which shall by the same author- ity of the people, fairly delegated as this frame of government directs, be amended or unproved for the more ef- fectual obtaining and securing the great end, and design of all gov- ernment, hereinbefore mentioned." Poore's Charters and Constitutions, Part II, pp. 1540, 1541. The Constitution of Vermont, adopt- ed by a popular convention which sat between July 2d and July 8th, 1777, and subsequently affirmed and de- clared to be a part of the laws of the State, by the legislature in 1779 and 1782, states in its preamble : — "We the representatives of the Freemen of Vermont, in general con- vention met, for the express purpose of forming such a government, — con- fessing the goodness of the Great Governor of the universe, (who alone knows to what degree of earthly hap- piness, mankind may attain, by per- fecting the arts of government), in permitting the people of this State, by common consent, and without violence, deliberately to form for themselves, such just rules as they shall think best for governing their future society; and being fully con- vinced that it is our indispensable duty, to establish such original prin- ciples of government, as will best pro- mote the general happiness of the people of this State, and their pos- terity, and provide for future im- provements, without partiality for, or prejudice against any particular class, sect or denomination of men, what- ever, — do, by virtue of authority vested in us, by our constituents, ordain, dscla/re and establish, the fol- 102 THE PREAMBLE. [chap. n. The plan of Pinckney, as now preserved, contains the same preamhle as the report of the Committee of Detail : — "We, the people of the States of New Hampshire, Massachusetts, Ehode Island, Providence Plantations, Connecticut, New York, New lowing declaration of rights, and frame of government to be the CoNSTiTirTiON of this Commonwealth, and to remain in force therein, forever, unaltered, except in such articles, as shall, here- after, on experience, be found to re- quire improvement, and which shall, by the same authority of the people, fairly delegated as this frame of govern- ment directs, be amended or improved, for the more effectual obtaining and securing the great end and design of all government, hereinbefore men- tioned. " Poore's Charters and Consti- tutions, Part II, pp. 1858, 1859. The Constitution of Massachusetts, framed by a popular convention which sat from September 1st, 1779, to March 2d, 1780, and adopted by a vote of more than two-thirds of the people, has the following preamble : — "The end of the institution, main- tenance, and administration of gov- ernment is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying. In safety and tranquillity, their natural rights and the blessings of life; and whenever these great objects are not obtained, the people have a right to alter the government, and to talie measures necessary for their safety, prosperity, and happiness. "The body-politic is formed by a voluntary association of individuals ; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of govern- ment, to provide for an equitable mode of making laws, as well as for an impartial interpretation and a faithful execution of them ; that every man may, at all times, find his security in them. "We, therefore, the people of Mas- sachusetts, acknowledging, with grate- ful hearts, the goodness of the great Legislator of the universe, in afford- ing us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence, or surprise, of entering into an origi- nal, explicit, and solemn compact with each other, and of forming a new con- stitution of civil government for our- selves and posterity; and devoutly imploring His direction in so interest- ing a design, do agree upon, ordain, and establish the following declaration of rights and frame of government as the constitution of the commonwealth of Massachusetts." Poore's Charters and Constitutions, Part I, pp. 956, 957. The Constitution of Georgia, framed and unanimously agreed to by a pop- ular convention, February 5th, 1777, concludes its preamble : — " We, therefore, the representatives of the people, from whom all power originates, and for whose benefit all government is intended, by virtue of the power delegated to us, do ordain and declare, and it is hereby ordained and declared, that the following rules and regulations be adopted for the future government of this State." Poore's Charters and Constitutions, Part I, p. 378. The Constitution of New York, framed by a popular convention which § 27.] " THIS CONSTITUTION." 103 Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Greorgia, do ordain, declare and establish the following Constitution for the government of ourselves and our pos- terity." = In Hamilton's plan, which he furnished to Madison at about the close of the Federal Convention, the preamble reads — ' ' The people of the United States of America, do ordain and establish this Constitution for the government of themselves and their posterity." * The form was manifestly adopted for the purpose of reaffirming the statement that the Constitution was a law rather than a treaty. It was suggested by the form used in previous State Constitutions, and shows an intention to place the Federal Con- stitution upon the same footing. §27. Significance of the Word "Constitution." But above all the preamble concludes with the words, "this Constitution of the United States of America." In the Articles of Confederation, that instrument was styled " a firm league of friendship." ^ If no change had been designed, the word " league " would have been repeated. The word Constitution had a well- known meaning at the time, having been used in the Constitu- tions of the different States which were not still governed under their colonial charters. It signified a fundamental law,^ unchange- able and indissoluble except in the manner therein indicated, or by a revolution. This fact, coupled with the subsequent decla- ration that the Constitution of the United States was the supreme law of the land,^ establish that construction which has been settled by the logic of subsequent events. Attempts have been made to weaken the force of the use of sat from July 10th, 1776, to April 20th, ' Madison Papers, Elliot's Debates, 1777, recites in nearly every resolu- 2d ed., vol. v, p. 584. tion : " This convention, therefore, in * Madison Papers, Elliot's Debates, the name and by the authority of the 2d. ed., vol. v, p. 584. good people of this State, doth ordain, § 27. i Articles of Confederation, determine, and declare that." Poore's III. Charters and Constitutions, Part II, ^ Webster, § 16, note 14, supra. p. 1332. ^ Constitution, Article VI. 104 THE PREAMBLE. [CHAP. II. this term by reference to the language of statesmen and public documents which speak of the Articles of Confederation as a constitution,* especially the resolutions of Congress recommend- ing the Federal Convention, in order to "render the Federal Con- stitution adequate to the exigencies of government and the preservation of the Union." ^ But the language there used was colloquial rather than teclinical, and in the same sense that Blackstone and others employ when describing the statutes and common law of Great Britain in relation to the powers and com- position of the Crown and Parliament as the British Constitution. The term is not used in the Articles of Confederation themselves ; and, moreover, many claimed that they could not be legally dissolved.^ § 28. Testimony of Contemporary Statesmen on the Nature of tlie Constitution. When we examine the views of contemporary statesmen, the same conclusion is strengthened. Nowhere in the debates in the Federal or State Conventions, nor in the pamphlets on either side of the question of ratification, do we find a hint of the right of secession. Its opponents attacked the Constitution as a destruc- tion of the States and the creation of a consolidated nation.^ The * See the commissions of the dele- under the idea of providing for tlie gates to the Federal Convention, general welfare, and under their own Elliot's Debates, 2d ed., vol. i, pp. construction, say that this was de- 126-139 ; Bepublio of Eepublios, by stroying the general peace, enoourag- Bernard J. Sage, 4th ed., p. 198. ing sedition, and poisoning the minds 6 Quoted supra, §5. of the people? And could they not, « See the language of Patterson, in order to provide against this, lay a quoted supra, §20. dangerous restriction on the press?" §28. 1 See especially the arguments Elliot's Debates, 2d ed., vol. ill, p. of Patrick Henry, George Mason, and 442. He warned the South that others, in the Virginia Cionvention. slavery would be endangered : — George Mason prophesied with won- "There is a clause to prohibit the derful prescience the grievances which importation of slaves after twenty subsequently arose. He foretold the years, but there is no provision for Sedition Law: "Now, suppose op- securing to the Southern States those pressions should arise under this they now possess. It is far from he- government, and any writer should ing a desirable property ; but It will dare to stand forth and expose to involve us in great difficulties and in- the community at large the abuses felicity to be ever deprived of them, of those powers; could not Congress, There ought to be a clause In the § 28.] TESTIMONY OF CONTEMPORARIES. 105 Federalists admitted that the new government was partly national, but claimed that the composition of the Senate and the election of the President made it also partly Federal. "On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given hy deputies elected for the special purpose ; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, — the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act."^ " The next relation is to the sources from which the ordinary powers of government are to be derived. The House of Representatives wUl derive its powers from the people of America ; and the people wiU be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is national, not federal. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies ; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is federal, not national. The executive power wUl be derived from a very com- pound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives ; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the Constitution to secure us that property, 453. Patrick Henry replied, ibid., pp. which we have acquired under our 455, 456. former laws, and the loss of which The address of the minority of the would bring ruin on a great many Pennsylvania Convention included people." Ibid., p. 270. See also among the objections enumerated Mason's remarks to the same effect, that there is " no declaration that the ibid., pp. 453, 458. Madison argued States reserve their sovereignty, free- that there was adequate protection dom and independence." American by the provision for the return of Museum, November, 1787. fugitive slaves and the grant of no ^ Madison in The Federalist, No. power to abolish slavery. Ibid., p. xxxix. Lodge's ed., p. 230. 106 NATUEB OF THE CONSTITUTION. [CHAP. n. governinent, it appears to be of a mixed character, presenting at least as Txiany federal as national features. "The difference between a federal and national government, as it relates to the operation of the government, is supposed to consist in this, that in the former the powers operate on the political bodies composing the confederacy, in their political capacities ; in the latter, on the indi- vidual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the national, not the federal character ; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of con- troversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps un- avoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a national government." ^ " If we try the Constitiition by its last relation to the authority by which amendments are to be made, we find it neither wholly national nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union ; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and particularly in computing the proportion by States, not by citizens, it departs from the national and advances towards the federal character ; in rendering the concurrence of less than the whole number of States sufficient, it loses again the federal and partakes of the national character. "The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national ; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national ; in the operation of these powers, it is national, not federal ; in the extent of them, again, it is federal, not national ; and, 5 Madison in The Federalist, No. xxxix, pp. 237, 238. § 28.J TESTIMONY OF CONTEMPOEAKIES. 107 finally, in the autboritative mode of introducing amendments, it is neither wholly federal nor wholly national." ^ Wilson said in the Pennsylvania Convention : " We now see the great end which they proposed to accomplish. It was to frame for the consideration of their constituents one Federal and National Constitution — a constitution that would procure the advan- tages of good, and prevent the inconveniences of bad government — a constitution whose beneficence and energy would pervade the whole Union and bind and embrace the interests of every part — a constitution that would insure peace, freedom, and happiness to the States and people of America. " ^ "If when he says it is a consolidation, he means so far as relates to the general objects of the Union, — so far it was intended to be a con- solidation, and on such a consolidation perhaps our very existence as a nation depends." ° " The very manner of introducing this Constitution, by the recogni- tion of the authority of the people, is said to change the principle of the present Confederation, and to introduce a consolidating and absorb- ing government. " In this confederated republic, the sovereignty of the states, it is said, is not preserved. We are told that there cannot be two sovereign powers, and that a subordinate sovereignty is no sovereignty. "It wiU be worth while, Mr. President, to consider this objection at large. When I had the honor of speaking formerly on this subject, I stated, in as concise a manner as possible, the leading ideas that occurred to me, to ascertain whether the supreme and sovereign power resides. It has not been, nor, I presume, will it be denied, that some- where there is, and of necessity must be, a supreme, absolute, and un- controllable authority. This, I believe, may justly be termed the sovereign power ; for, from that gentleman's (Mr. Findley) account of the matter, it cannot be sovereign unless it is supreme ; for, says he, a subordinate sovereignty is no sovereignty at all. I had the honor of observing, that, if the question was asked, where the supreme power resided, different answers would be given by different writers. I men- tioned that Blackstone would tell you that, in Britain, it is lodged in the British Parliament ; and I believe there is no writer on this subject, on the other side of the Atlantic, but supposed it to be vested in that " Madison in The Federalist, No. "■ Elliot's Debates, 2d ed., vol. ii, xxxix, Lodge's ed., p. 239. p. 431. 6 Ibid., p. 461. 108 NATUKB OF THE CONSTITUTION. [CHAP. II. body. I stated, further, that, if the question was asked of some politician, who had not considered the subject with sufficient accuracy, where the supreme power resided in our governments, he would answer, that it was vested in the State constitutions. This opinion approaches near the truth, but does not reach it ; for the truth is, that the supreme, absolute, and uncontrollable authority remains with the people. I mentioned, also, that the practical recognition of this truth was reserved for the honor of this country. I recollect no constitution founded on this principle ; but we have witnessed the improvement, and enjoy the happiness of seeing it carried into practice. The great and penetrating mind of Locke seems to be the only one that pointed towards even the theory of this great truth. " When I made the observation that some politicians would say the supreme power was lodged in our State constitutions, I did not suspect that the honorable gentleman from Westmoreland (Mr. Findley) was included in that description ; but I find myself disappointed ; for I imagined his opposition would arise from another consideration. His position is, that the supreme power resides in the States, as govern- ments ; and mine is, that it resides in the people, as the fountain of government ; that the people have not — that the people meant not — and that the people ought not — to part with it to any government whatsoever. In their hands it remains secure. They can delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper. I agree with the members in oppo- sition, that there cannot be two sovereign powers on the same subject. ' ' I consider the people of the United States as forming one great community ; and I consider the people of the different States as form- ing communities, again, on a lesser scale. From this great division of the people into distinct communities, it will be found necessary that different proportions of legislative powers should be given to the gov- ernments, according to the nature, number and magnitude of their objects." ' § 29. Judicial Decisions as to the Nature of the Constitution. The construction put upon the Constitution by the Federal Judiciary has been uniform in favor of this position. Six years after the adoption of the Constitution, a majority of the Supreme ' Elliot's Debates on the Federal the quotation from Madison, supra, Constitution, vol. ii, pp. 455, 456. See § 14. also "Wilson's "Works, vol. i, p. 347 and § 29.] JUDICIAL DECISIONS. 109 Court held that they had jurisdiction of a suit against a State by a citizen of another State.^ The dissenting judge conceded that "the United States are sovereign as to all the powers of the government actually surrendered ; " and as regards " the special objects of authority of the general Government, wherein the separate sovereignties of the States are blended in one common mass of supremacy." ^ Of the majority, two held that the States had relinquished so much of their sovereignty as exempted them from suit.^ Chief Justice Jay said that the Federal Constitution had the same effect upon the people of the United States as a State Constitution upon the people of a State.* Wilson held that the question for decision was this : " Do the people of the United States form a nation ? " ^ which he resolved in the affirmative : — "Whoever considers, in a combined and comprehensive view, the general texture of the Constitution, will be satisfied that the people of the United States intended to form themselves into a nation for national purposes. They instituted for such purposes a national government, complete in aU its parts, with powers legislative, executive, and judi- ciary, and in all those powers extending over the whole nation."^ Later came the opinion of Chief Justice Marshall, who said : — " To the formation of a league, such as was the Confederation, the State sovereignties were certainly competent. But when, ' in order to form a more perfect union,' it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged." ' "That the United States form, for many and for most important purposes, a single nation, has not yet been denied. In war, we are § 29 1 Chisholm v. Georgia, 2 Dallas, selves in a certain manner, and the 419, A.D. 1793. CJonstitution of the United States is 2 Justice Iredell, ibid., 435. See likewise a compact made by the people also his opinion in Penhallow v. of the United States to govern them- Doane's Administrators, 3 Dallas, 54, selves as to general objects in a cer- 94. tain manner." Ibid., p. 471. 3 Justice Blair, ibid., p. 452. Justice ^ Ibid., p. 453. Gushing, ibid., p. 468. « ibid., p. 465. « " Every State Constitution is a ' McOuUoch v. Maryland, 4 Whea- compact made by and between the ton, 316, 404, A.D. 1819. citizens of a State to govern them- 110 NATTJEE or CONSTITUTION. [CHAP. II. one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government, and in that character they have no other." * ' ' Eef erence has been made to the political situation of these States anterior to its formation. It. has been said that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But when these allied sovereigns converted their league into a government, when they converted their Congress of ambassadors deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws on the most interesting subjects, the whole character in which the States appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected." ' Even so strong an advocate of States' rights as Chief Justice Taney said, in the Dred Scott case : — ' ' The new government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations of the pre- ceding one. But when the present United States came into existence under the new government, it was a new political body, a new nation, then for the first time taking its place in the family of nations." '" Finally, after the conclusion of the Civil War, the Supreme Court said, speaking through Chief-Justice Chase : — "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." ^^ § 30. Justification for Belief in Legality of Secession. Yet cogent as seem these arguments and precedents to members of a generation educated under the influence of the decisions of 8 Cohen v. Virginia, 6 Wheaton, 264, n Texas v. White, 7 Wallace, 700, 413, 414, A.D. 1821. 725, quoted supra, § 20 ; White v. Can- s' Gibbons v. Ogden, 9 Wheaton, 1, non, 6 Wall. 443, 450 ; White v. Hart, 187, A.D. 1824. 13 Wall. 646, 650; Williams v. Bruffy, 10 Dred Scott v. Sandford, 19 How- 96 U. S. 173 ; Keith v. Clark, 97 TJ. S. ard, 393, 441. 454. §30.J AUTHORITIES TOR SECESSION. Ill the Supreme Court, which have, with but short periods of reaction, steadily extended the powers of the Federal government, there is no foundation for the opprobrium heaped upon the Confederates by the supporters of the Union during the Civil War and the subsequent period of Reconstruction. Nothing is more unjust than to charge with perjury men who, like Davis, Lee and Stephens, after having sworn to support the Constitution, some of them after opposition to secession, joined their fellow citizens in their own States in waging war upon the national government. They honestly believed that _the Constitution justified such action. They were supported by doctrines laid down by publicists ^ as § 30. 1 The edition of Blackstone, by St. George Tucker, published in 1803, was usually recognized as an authority throughout the South previous to the Civil "War. The publishers paid the editor $4,000 for his work, a large sum even for these times, and which shows the esteem with which he was regarded by his contemporaries. The editor was at one time Judge of the Virginia Court of Appeals, and later Judge of the Dis- trict Court of the United States for the Eastern District of that State. He was the stepfather of John Randolph of Roanoke ; and his own descendants have served the country with distinc- tion. " The Federal Government, then, ap- pears to be the organ through which the United Republics communicate with foreign nations, and with each other. Their submission to its operation is vol- untary ; its councils, its engagements, its authority are theirs, modified and united. Its Sovereignty is an emanation from theirs, not a flame, in which they have been consumed, nor a vortex, in which they are swallowed up. Each is still a perfect State, still Sovereign, still inde- pendent, and still capable, should the oc- casion require, to resume the exercise of its functions, as such, in the most unlim- ited extent." " But, until the time shall arrive, when the occasion requires a re- sumption of the rights of Sovereignty by the several States (and far be that period removed, when it shall happen,) the ex- ercise of the rights of Sovereignty by the States, individually, is wholly suspended or discontinued in the cases before men- tioned : nor can that suspension ever be removed, so long as the present Consti- tution remains unchanged, but by the dissolution of the bonds of the union ; an event which no good citizen can wish, and which no good or wise administra- tion will ever hazard." Tucker's Black- stone, vol. i. Appendix, pp. 170, 171, 175, 187. The first treatise on the Constitution of the United States was by "William Rawle, one of the leaders of the Phila- delphia bar, at the time when the phrase, "sharper than a Philadelphia lawyer," first came into use. He was appointed United States Attorney for that district by General "Washington. " Having thus endeavored to delineate the general features of this peculiar and invaluable form of Government, we shall conclude with adverting to the principles of its cohesion, and to the provisions it contains for its own duration and exten- sion. The subject cannot, perhaps, be better introduced than by presenting, in its own words, an emphatioal clause in the Constitution. 'The United States shall guarantee, to every State in the Union, a Republican form of Govern- ment ; shall protect each of them against 112 NATURE OF CONSTITUTION. [chap. n. well as statesmen ^ of authority in the North as well as the South. During the whole of the nineteenth century down to the sur- 2 The opinions of a number of states- men on the subject are quoted in § 31, infra. Southern writers have also appealed to John Qulncy A^ams as supporting the legality of the right of secession. The passage cited evidently recognizes not the legal right, but the moral right of secession, in case of a gross violation of the rights of the se- ceding section, which must be conceded by all who adopt the principles of the Declaration of Independence. See Adams' Jubilee of the Constitution. The writer has been able to find but one case decided before the war in which the legality of secession was dis- cussed. That was State ex. rel. Mc- Cready v. Hunt, 2 Hill, S. C. Law, 1, decided in 183i, which is sometimes published separately in a volume entitled The Book of Allegiance. There, the Su- preme Court of South Carolina held void, by a majority of two to one, the statute of that State passed in December 1833, in pursuance of the ordinance nullifying the Force Bill, which pre- scribed to the officers of the militia an oath of allegiance to the State. Judge O'Neall and Judge Johnson held (pp. 209, 215, 223, 226, 248), that allegiance was due to both the United States and the State, that the convention had no power to transfer allegiance, and that the statute prescribing the new oath was invalid, because not recognizing the United States, as prescribed by the Federal Constitution, Article VI., and as differing from the oath prescribed by the State Constitution. Judge Harper (at p. 248) dissented in an opinion, hold- ing the oath constitutional, upon the ground that the United States were a confederacy only ; and that allegiance was due to the State alone. His opinion contains a strong argument in favor of the right of secession. Nullification is discussed infra, § 3.3. It is claimed by the author of The Eepublic of Republics, Bernard J. Sage (4th ed., at p. 33), that Rawie and Tucker, who, as has been shown above, support the legality of secession, " were text-books at West Point when Davis and Lee were cadets there." The pres- ent commanding officer at West Point has, however, informed the writer that this is untrue. invasion; and, on application of the Legislature, or of the Kxecutive, when the Legislature cannot be convened, against domestic violence.' The Union is an association of the people of Republics ; its preservation is calcu- lated to depend on the preservation of those Republics. The principle of representation, although, certainly, the wisest and best, is not essential to the being of a Republic ; but, to continue a member of the Union, it must be pre- served; and, therefore, the guarantee must be so construed. It depends on the State itself, to retain or abolish the principle of representation; because it depends on itself, whether it will con- tinue a member of the Union. To deny this right, would be inconsistent with the principles on which all our political systems are founded ; which is, that the people have. In all cases, a right to determine how they will be governed. This right must be considered as an ingredient in the original composition of the General Government, which, though not expressed, was mutually understood; and the doctrine, heretofore presented to the reader, in regard to the indefeasi- ble nature of personal allegiance, is so far qualified, in respect to aEegiance to the United States. It was observed that it was competent for a State to make a Compact with its citizens, that the recip- rocal obligations of protection and alle- giance might cease on certain events; §30.J AUTHOEITIBS FOE SECESSION. 113 render of Lee, the country was divided in opinion upon the and it was further observed that alle- giance would necessarily cease on the dissolution of the society to which it was due. The States may then wholly with- draw from the Union; but while they continue they must retain the character of representative republics." Eawle on the Constitution, pp. 288, 290, A. D. 1825. "The secession of a State from the Union depends on the will of the people of such State. The people, alone, as we have already seen, hold the power to alter their Constitution. The Constitu- tion of the United States is, to a certain extent, incorporated into the Constitu- tions of the several States, by the act of the people. The State Legislatures have only to perform certain organical opera- tions in respect to it. To withdraw from the Union, comes not within the gen- eral scope of their delegated authority. There must be an express provision to that effect inserted in the State Consti- tutions. This is not, at present, the case with any of them, and it would, perhaps, be impolitic to confide it to them. A matter, so momentous, ought not to be intrusted to those who would have it in their power to exercise it lightly and precipitately, upon sudden dissatisfac- tion or causeless jealousy, perhaps against the interests and the wishes of a majority of their constituents. But in any manner by which a Secession is to take place, nothing is more certain than that the act should be deliberate, clear, and unequivocal. The perspi- cuity and solemnity of the original obli- gation require correspondent qualities in its dissolution. The powers of the General Government cannot be defeated or impaired by an ambiguous or implied Secession on the part of the State, although a Secession may, perhaps, be conditional. The people of the State may have some reasons to complain in respect to acts of the General Govern- ment ; they may, in such cases, invest some of their own officers with the power of negotiation, and may declare an abso- lute Secession in case of their failure. Still, however, the Secession must in such case be distinctly and peremptorily declared to take place on that event, and in such case — as in the case of an unconditional Secession — the previous ligament with the Union would be legiti- mately and fairly destroyed. But, in either case, the people is the only mov- ing power." Ibid, 295, 296. " In no part of the Constitution is a specific number of States required for a legislative act. Under the Articles of Confederation, i the concurrence of nine States was requisite for many purposes. If five States had withdrawn from that Union, it would have been dissolved. In the present Constitution there is no specification of numbers after the first formation. It was foreseen that there would be a natural tendency to increase the number of States with the increase of population then anticipated, and now so fully verified. It was also known, though it was not avowed, that a State might withdraw itself. The number would therefore bo variable." Ibid. 297. "To withdraw from the Union is a solemn, serious act. "Whenever it may appear expedient to the people of a State, it must be manifested in a direct and unequivocal manner. If it is ever done indirectly, the people must refuse to elect Representatives, as well as to suffer their Legislature to re-appoint Senators. The Senator whose time had not yet expired, must be forbidden to continue in the exercise of his functions. But without plain, decisive measures of this nature, proceeding from the only legitimate source, the people, the United States cannot consider their Legislative powers over such States suspended, nor their Executive or Judicial powers any way impaired, and they would not be obliged to desist from the collection of 114 NATUBE OF C02SfSTITTJTI0N. [chap. n. subject.^ The Cml War, although held in law to be a rebel- lion, was treated by the Federal army, by the Federal courts, and by foreign nations as in fact a geographical war, giving to the combatants on both sides and the inhabitants of each section of the country the rights and liabilities of belligerents.* Mem- bers of the Confederate army were not punished as rebels. None of them were tried for treason.^ A Northern jury refused to con- revenue, within such State. As to the remaining States, among themselves, there is no opening for a doubt. Seces- sions may reduce the number to the smallest integer admitting combination. They would remain united under the same principles and regulations, among themselves, that now apply to the whole. For a State cannot be compelled by other States to withdraw from the Union, and, therefore, if two or more determine to remain united, although all the others desert them, nothing can be discovered in the Constitution to prevent it. The consequences of an absolute Secession cannot be mistaken, and they would be serious and afflicting. The Seceding State, whatever might be its relative magnitude, would speedily and dis- tinctly feel the loss of the aid and countenance of the Union. The Union, losing a proportion of the National rev- enue, would be entitled to demand from it a proportion of the National debt. It would be entitled to treat the inhab- itants and the commerce of the sepa- rated States, as appertaining to a foreign country. In public treaties already made, whether commercial or political, it could claim no participation, while foreign powers would unwillingly calcu- late, and slowly transfer to it, any por- tion of the respect and confidence borne towards the United States. Evils more alarriiing may readily be perceived. The destruction of the common bond would be unavoidably attended with more se- rious consequences than the mere dis- union of the parts. Separation would produce jealousies and discord, which in time would ripen into mutual hostili- ties; and while our country would be wealiened by internal war, foreign ene- mies would be encouraged to invade, with the flattering prospect of subduing in detail those whom collectively they would dread to encounter." Ibid, pp. 298, 299. * As late as 1893, in a book written by a Senator from Massachusetts, is the re- markable statement : " When the Con- stitution was adopted by the votes of States at Philadelphia, and accepted by the votes of States in popular conven- tions, it is safe to say that there was not a man in the country, from Washington and Hamilton on the one side to George Clinton on the other, who regarded the new system as anything but an experi- ment entered upon by the States, and from which each and every State had the right peaceably to withdraw, a right which was very likely to be exer- cised. When the Virginia and Ken- tucky resolutions appeared, they were not opposed on constitutional grounds." (Henry Cabot Lodge, Life of Daniel Webster, pp. 176, 177.) That the latter statement by Senator Lodge is as errone- ous as the first is shown by the citations in § 32. 4 See The Prize Cases, 2 Black, 636; Wm. Alexander's Cotton, 2 Wall., 404; Muller V. U. S., 11 Wall., 268; Tyler i). Defrees, 11 Wall., 331. 5 An indictment against Jefferson Da- vis was quashed by Chief -Justice Chase, Deo. 5, 1868, upon the ground that the Fourteenth Amendment was a bar. Judge Underwood dissented. Subse- quently all indictments against Davis were dismissed on account of the proolar §30.j ATTTHOEITIES TOE SECESSION. 115 vict of piracy officers of Confederate privateers.*' No attempt was made to draw an indictment against the whole Southern people. After peace was restored the Southern States were ruled as conquered provinces until, and some even after, they ratified amendments to the Constitution that destroyed the institution to protect which they began the war, established citizenship of the United States, and gave to the Federal government full power to protect all its citizens from hostile action by the States of their residence. And finally, no one who accepts the doctrine of the Declaration of Independence can dispute the moral right of secession and of revolution when there is no other remedy against tyrannical oppression by a lawful government.'' mation of general amnesty, Dec. 25, 1868. (Chase's Decisions, vol. i, 122-124). The only trial for treason in connection with the Civil War was that of Greathouse, Harpending and Eubey, for fitting out a Confederate privateer. They were con- victed and sentenced to fine and impris- onment, but subsequently pardoned. (U. S. V. Greathouse, 2 Abbott, p. 364; Greathouse's Case, ibid., p. 382. See also U. S. 1). Greiner, 24 Law Rep. (14 Law Eep. N. S.) 91.) This subject and that of the trials before military commis- sions will he discussed subsequently. ^ The trial of the officers of the Savan- nah in the U. S. Circuit Court, S.D. N. Y., in October, 1861, where the jury disa- greed, is well worth reading. In 1862, the captain of the Jefferson Davis was found guilty of piracy and sentenced to death by the United States Court at Philadelphia, but a threat of reprisals prevented his execution. (Davis, Else and Fall of the Confederate Government, vol. ii, pp. 11, 12. 7 " That a state, or any other great por- tion of the people, suffering under long and intolerable oppressions, and having tried all constitutional remedies without the hope of redress, may have a natural right, when their happiness can be no otherwise secured, and when they can do so without greater injury to others, to absolve themselves from their obligations to the government, and appeal to the last resort, need not, on the present occasion, be denied. The existence of this right must depend upon the causes which may justify its exercise. It is the ultima ratio, which presupposes that the proper appeals to all other means of redress have been made in good faith, and wliich can never be rightfully resorted to unless it be unavoidable. It is not the right of the state, but of the individual, and of all the individuals in the state. It is the right of mankind generally to secure, by all means in their power, the blessings of liberty and happiness ; but when, for these purposes, any body of men have voluntarily associated themselves under a particular form of government, no por- tion of them can dissolve the association without acknowledging the correlative right in the remainder to decide whether that dissolution can be permitted con- sistently with the general happiness. In this view, it is a right dependent upon the power to enforce it. Such a right, though It may be admitted to pre-exist, and cannot be wholly surrendered, is necessarily subjected to limitations in aU free governments, and in compacts of all kinds, freely and voluntarily en- tered into, and in which the interest and welfare of the individual become identi- fied with those of the community of which he is a member. In compacts 116 NATTJEE OP CONSTITUTION". [CHAP. H. § 31. Early Assertions of the Klght of Secession. The first threat of secession after the adoption of the Constitu- tion was in the first Senate, June 11th, 1789, in the debate upon the first tariff bill. Senator Pierce Butler of South Carolina "flamed away and threatened a dissolution of the Union with regard to Ms State, as sure as God was in the firmament." ^ A similar threat was made to the House of Eepresentatives by George Cabot of Massachusetts in case of its refusal to make the appropriations necessary to carry the Jay treaty into effect.^ It has been claimed by the supporters of the right of secession that in 1803 the legislature of Massachusetts resolved, on the acquisition of Louisiana, — ' ' That the annexation of Louisiana to the Union transcends the constitutional power of the government of the United States. It forms a new Confederacy to which the States united by the former compact are not bound to adhere." ^ Although this assertion is probably unwarranted,* there can be but little doubt that at that time some of the leading Federahsts in Massachusetts planned the secession of the New England States between individuals, however deeply they § 31. i Maelay's Journal of June 11, may affect their relations, these princi- 1789. Sketches of Debate in the First pies are acknowledged to create a sacred Senate of the United States, by Wil- obligatiou ; and in compacts of civil gov- liam Maclay (1st ed.) p. 77. ernments.involvingthelibertyandhappi- 2 Jefferson, Ana, Works (1st ed.), ness of millions of mankind, the obliga- ^^j j^ j^ag s Tyler, Life of Taney, p. 333. tion can not be less.'' Andrew Jackson, Message on Nullification, Jan. 16, 1833. , „. , , „■ , ,,,-„, -^ o TIT , i -J • 1 • 1 J. also Stephens History of the War be- So Webster said m his reply to ^ ,, „. , . „ ,, „, 1, i tween the States, vol. i, p. 510, where Hayne : " There may be extreme cases, , , , ^„ in which the people, in any mode of as- ^^« ^^^^""^ ^^^^' " Whether this reso- sembling, may resent usurpation, and re- "^^^"'^ ^^^ ^^ ^^'^^ P'^^s^'i ^^ ^^'^ ^^^"^ Ueve themselves from a tyrannical gov- el^^setts Legislature or not, I have not ernment. No one wiU deny this. We, sir, teen able to ascertain with absolute who oppose the Carolina doctrine, do certainty. ' not deny that the people may, it they * '^''^e acoomplished librarian, Mr. choose, throw off any government, when I'ranois Vaughan of the Social Law it becomes oppressive and unbearable. Library of Boston, has very kindly and erect a better in its stead. We all searched the indices of the journals ol know that civil institutions are estab- both Houses of the Massachusetts lished for the public benefit, and that General Court from May, 1802, to when they cease to answer the ends of March, 1804, and has found there no their existence they may be changed." trace of such a resolution. § 81.J AUTHOEITIES FOE SECESSION. 117 and the formation of a Northern Confederacy.^ In 1811, during the debate on the bill for the admission of Louisiana as a State, Josiah Quincy, a member from Massachusetts, said in the House of Representatives : — • " It is my deliberate opinion that if this bill passes the bonds of this Union are virtually dissolved ; that the States which compose it are free from their moral obligation and that, as it will be the right of all, so it will be the duty of some, definitely to prepare for separation, amicably if they can, violently if they must." The Speaker, Joseph B. Varnum of the same State, held that the language was disorderly,. but the House by a vote of fifty-six to fifty-three reversed the ruling.^ The war of 1812 bore with especial severity upon New England. The action of the Federal government in calling the militia thence to aid in the invasion of Canada from New York, the proposition of a compulsory draft, and other measures, created great indig- nation. This resulted in the famous Hartford Convention, called by Massachusetts, where delegates chosen by the legislatures of that State, Connecticut and Rhode Island, besides a few chosen by popular meetings in New Hampshire and Vermont, met in secret session during December, 1814 ; it was charged, to plot secession. The official preliminaries, the resolutions, and the report adopted by the convention contain nothing which directly supports the theory, although a threat of secession is clearly intimated, and nullification is expressly threatened.'^ 5 See letters of Timothy Pickering should, if possible, be the work of to Higgins on Dec. 24, 1803 ; and to peaceable times and deliberate con- George Cabot, Jan. 29, 1804 ; Lodge's sent. Some new form of confederacy Life of Cabot, pp. 337-340, 442, 491; should be substituted among those Roger Griswold to Oliver Wolcott, States which shall intend to maintain March 11, 1804 ; Judge Tapping Eeeve a Federal relation to each other. of Connecticut, to Uriah Tracy, Feb. 7, Events may prove that the cause of 1804. our calamities are deep and perma- Henry Adams, History of the United nent. They may be found to proceed. States, vol. ii, pp. 160-163, 168, 184, not merely from the blindness of prej- 186, 188. udice, pride of opinion, violence of 6 Henry Adams, History of the Unit- party spirit, or the confusion of the ed States, vol. v, p. 325. times ; but they may be traced to '"If the Union be destined to implacable combinations of individuals dissolution by reason of the multiplied or of States to monopolize power and abuses of bad administration, it office, to trample without remorse 118 NATUEE OF THE CONSTITUTION. [chap. n. In 1844, the legislature of Massachusetts passed a series of resolutions upon the annexation of Texas, containing the tlireat, — " That the project of the annexation of Texas, unless arrested on the threshold, may drive these States into a dissolution of the Union."' On the same subject, February 22d, 1845, the same body adopted another series of resolutions, which included the state- ment that, — "As the powers of legislation granted in the Constitution of the United States to Congress, do not embrace the case of the admission of a foreign state, or foreign territory, by Legislation, into the Union, such an act of admission would have no binding force whatever on the people of Massachusetts." ' From the enactment of the tariff of abominations of 1828 to the outbreak of the Civil War, threats of secession and assertions of the right to secede were constantly made by Southern statesmen.^" upon the rights and interests of the commercial sections of the Union. Wherever it shall appear that the causes are radical and permanent, a separation by equitable arrange- ment will be preferable to an alliance by constraint among nominal friends, but real enemies." (Report of the Hartford Convention. Dwight, His- tory of the Hartford Convention.) "While the bill for a draft was pending the Connecticut legislature authorized the Governor in case of its passage, to call an extraordinary session to con- sider measures "to secure and pre- serve the rights and liberties of the people of this State, and the freedom, sovereignty and independence of the same. " (Henry Adams, History of the United States, vol. ix, p. 278; citing Niles' Eegister, vii, Supplement, p. 107.) " In cases of deliberate, dangerous and palpable infractions of the Consti- tution, affecting the sovereignty of a State and liberties of the people ; it is not only the right but the duty of such a State to interpose its authority for their protection, in the manner best calculated to secure that end. "When emergencies occur which are either be- yond the reach of the judicial tribunals, or too pressing to admit of the delay incident to their forms. States which have no common umpire must be their own judges, and execute their own decisions. It will thus be proper for the several States to await the ultimate disposal of the obnoxious measures recommended by the Secretary of War, or pending before Congress, and so to use their power according to the char- acter these measures shall finally as- sume, as effectually to protect their own sovereignty, and the rights and liber- ties of their citizens." (Report of the Hartford Convention. Dwight's His- tory of the Hartford Convention, pp. 361, 362.) The language was evidently copied from the Kentucky Eesolutions {infra, § 32). 8 Stephens, Constitutional View of the Late "War between the States, toL i, p. 511. 9 Ibid. 1" See "Wilson, Else of the Slave Power in the United States, and "Van Hoist, Constitutional History of the United States, passim. § 32.] vmaiNiA ajto Kentucky ebsolutions. 119 § 32. Virginia and Kentucky Resolutions. The enactment of the Alien and Sedition Laws ^ by the Federal- ists was the cause of the Kentucky and Virginia resolutions, which contained the first germ of the doctrine of nullification. The draft of the Kentucky resolutions was made secretly by Jefferson, then Vice-President, in 1798, at the request of Madison, John Breckenridge, and Wilson C. Nicholas of Kentucky ;2 in order to unite the legislatures of the Anti-Federalist States in protests against the constitutionality of those laws. It was his original intention to have them first introduced in the legislature of North Carolina ; but a change in the political com- plexion of that State caused him to abandon this idea ; ^ in which he acted wisely. For it is said that when the Virginia resolutions were first presented to the North Carolina legislature they were promptly voted under the table.* The original draft of the reso- lutions, after protesting against the Alien and Sedition Laws, and also other acts punishing crimes for causes not specifically enumerated in the Constitution, declared them "altogether void and of no force," as infringements of the Constitution for reasons therein assigned, and appointed a Committee of Conference and Correspondence to communicate the resolutions to the legislatures of the several States, with a statement of the opinion of the resolving States upon the nature of the Federal compact which contained the following language : — " That therefore, this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth ; that in cases of an abuse of the delegated powers, the members of the General Government being §32. 1 These statutes are printed his descendants. See Southern Bivouac in the Appendix to this chapter, infra, of March, 1886, and The Kentucky Ees- 2 Jefferson's letter to J. OabelBreck- olutions of 1798, by E. O. Warfield, enridge, Dec. 11, 1821. Jefferson's pp. 136-144, where the mistake is ex- Works, 1st ed., vol. vii, p. 229. In this plained and corrected, edition of Jefferson's Works, his cor- s jgfferson to W. C. Nicholas, quoted respondent was erroneously described by Warfield, The Kentucky Kesolu- as Nicholas. The letter was in reality tions, p. 146. written to the son of John Breckin- ^ Madison to Jefferson, Madison's ridge, and is still in the possession of Works, vol. ii, p. 152. 120 NATTJEB OP THE CONSTITUTION. [CHAP. II. chosen by the people, a change by the people would be the constitu- tional remedy; but^ where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy : that every State has a natural right in cases not within the compact (casus non foederis) to nullify of theii- own authority, all assumptions of power by others within their limits ; that without this right, they would be under the dominion absolute and unlimited, of whosoever might exercise this right of judgment for them." ' ' That these successive acts of the same character, unless arrested at the threshold, must necessarily drive these States into revolution and blood." The paper concluded with the expression of tlie liope — "That the co-States recurring to their natural right in cases not made Federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government, not plainly and in- tentionally authorized by the Constitution, shall be exercised within their respective territories." ^ The State legislatures of Kentucky and Virginia, however, were at first not disposed to go so far as Jefferson suggested, The first Kentucky Eesolutions passed the legislature and were ap- proved by the Governor, November 16th, 1798. They contained the substance of Jefferson's draft ; modified his language by omit- ting his declaration of the right of nullification ; said, after con- demning the Alien and Sedition Laws, — ' ' That these and successive acts of the same character, unless arrested on the threshold may tend to drive the States into revolution and blood ; " and concluded merely with the phrase, — " That the co-States recurring to their natural right in cases not made Federal, will concur in declaring these acts void and of no force, and will each unite with this commonwealth in requesting their repeal at the next session of Congress." " The Virginia Resolutions were drawn by Madison, and were much milder in form both as first presented and as finally adopted. 5 Jefferson's Works, 1st ed., vol. ix, of American History, pp. 287-295. The pp. 461, 471. resolutions are printed in full in the •> Preston's Documents Illustrative appendix to this chapter. § 32.] VIRGINIA AND KENTUCKY RESOLUTIONS. 121 They contained a protest against the obnoxious laws, and re- quested the other States to — "concur with this commonwealth ia declaring as it does hereby declare that the acts aforesaid are unconstitutional, and tiiat the necessary and proper measures will be taken by each, for co-operating with this State hi maintaiuing the unimpahed authorities, rights and liberties reserved to the States respectively, or to the people." They further declared — " That this Assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact, to which the States are parties, as limited by the plain sense and intentions of the instrument constituting that compact; as no futher valid than they are authorized by the grants enumerated in that compact ; and that in case of a deliberate, palpable and dangerous exercise of her powers not granted by the said compact, the States, who are the parties thereto, have the right, and are in duty bound, to inter- pose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them." As first introduced by the celebrated John Taylor- of^ Caroline County, the declaration of the unconstitutionality of the acts contained, after the word " unconstitutional," " and not law, hut utterly null, void, and of no force or effect." The declaration concerning the nature of the constitutionality of the compact also stated at first concerning the same : " to which the States alone are parties." The words in italics were stricken out in the legislature by unanimous consent.'^ The resolutions were adopted after considerable discussion by a vote in the House of Delegates of one hundred to sixty-three, December 21, 1798, and in the Senate of fourteen to three, three days later. Throughout the debate, the idea that force would be used in opposition to the Federal govern- ment was expressly repudiated by the supporters of the resolutions.^ ' The Virginia Eeport of 1799-1800, Eandolph, 121 Main Street. Also for touching the Alien and Sedition Laws, sale toy Franck Taylor, Washington ; together with the Virginia Resolutions Gushing & Brother, Baltimore ; and T. of Dec. 21, 1798, the debate and pro- & J. W. Johnson, Philadelphia, Pa. ceedings thereon in the House of Dele- 1850 ; p. 148. gates in Virginia, and several other ^ John Mercer said, "Force is not documents illustrative of the Report thought of by any one " (ibid., p. 42). and Resolutions. Richmond: J. W. James Barbour: "He was for using 122 NATURE OF THE CONSTITUTION. [CHAP. U. Seven State legislatures replied to these resolutions, condemning the same in general language, and in some cases affirming the doc- trine that the Supreme Court of the United States had the ultimate authority of deciding on the constitutionality of an act of Con- gress.^ Kentucky rejoined, November 14th, 1799, by a preamble and resolution which concluded in language largely taken from the omitted part of Jefferson's original draft : — " That the several States who formed that instrument" (the Consti- tution), "being sovereign and independent, have the unquestioned right to judge of the infraction ; and that a nullification by those sovereignties, of all unauthorized acts done under color of that instru- ment, is the rightful remedy. That this Commonwealth does, under the most deliberate reconsideration, declare that the said Alien and Sedition Laws are, in their opinion, palpable violations of the said Constitution ; and, however cheerfully it may be disposed to surrender its opinion to a majority of its sister States, in matters of ordinary or doubtful policy, yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal ; that, although this Commonwealth, as a party to the federal compact, wiU bow to the laws of the Union, yet it does, at the same time, declare, that it will not now, or ever here- after, cease to oppose, in a constitutional manner, every attempt, at what quarter soever offered, to violate that compact: and finally, in order that no pretexts or arguments may be drawn from a supposed acquiescence, on the part of this Commonwealth, in the constitutionality of those laws, and be thereby used as precedents for similar future violations of the federal compact; this Commonwealth now enters against them its solemn protest." ^° no violence. It is the peculiar bless- template that a Convention would be ing of the American People to have called. He only said, that if Congress redress within their reach by consti- upon being addressed to have those tutional and peaceful means. He was laws repealed, should persist, they for giving Congress an opportunity of might, by a concurrence of three- repealing those obnoxious laws com- fourths of the States, be compelled plained of in the resolutions." In to call a Convention." Ibid, p. W8. closing the debate in the Committee » Delaware, Ehode Island, Massa- of the Whole, " Mr. John Taylor said chusetts. New York, Connecticut, New he would explain in a few words what Hampshire, Vermont. Ibid., pp. W8- he had before said. That the plan 177. Elliot's Debates, 2d ed., vol. iv, proposed by the resolution would not pp. 532-539. eventuate in war, but might in a Con- w See the whole Eesolution in Ap- vention. He did not admit or con- pendix to this chapter. § 32.] VXEGINIA AND KENTUCKY BESOLTJTIONS. 123 The Virginia House of Delegates referred the resolutions of the other States to a committee of which Madison was the chairman. Madison's famous report defended the resolutions and contained an elaborate argument against the constitutionality of the Alien and Sedition Laws. He reasserted the right of the States to in- terpose in " the case of a deliberate, palpable and dangerous " breach of the Constitution by the exercise by the Federal govern- ment of powers not granted to it, without, however, stating specifically, the manner in which that interposition should be made. He said that such action, "whether .made before or after judi- cial decisions " upon the validity of the laws in question, can not — " be deemed, in any point of vie-w, an assumption of the office of a judge. The declarations, in such cases, are expressions of opinion, un- accompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into effect by force. The former may lead to a change in the legislative expression of the general will ; possibly to a change in the opinion of the judiciary ; the latter enforces the general will, while that will and the opinion continue unchanged." He stated that " the necessary and proper measures " of co- operation which had been suggested to the other States were means — "strictly within the limits of the Constitution. The legislatures of the States might have made a direct representation to Congress, with a view to obtain a rescinding of the two offensive acts ; or they might have represented to their respective Senators in Congress their wish that two-thirds thereof would propose an explanatory amendment to the Constitution ; or two-thirds of themselves, if such had been their option, might by an application to Congress, have obtained a Convention for the same object. These several means, though not equally eligible in themselves, nor probably to the States, were all constitutionally open for consideration. And if the G-eneral Assembly, after declaring the two acts to be unconstitutional, the first and most obvious proceeding on the subject, did not undertake to point out to the other States a choice among the farther measures that might become necessary and proper, the reserve will not be misconstrued by liberal minds into any culpable imputation." 124 NATUEE OF THE CONSTITUTION. [CHAP. II. The legislature adopted the report and a final resolution adher- ing to their original resolutions." The advocates of nullification and secession have referred to these proceedings as conclusive evidence of the opinions of Jeffer- son and Madison in support of the doctrines which vi^ere advocated later by Calhoun and Davis. The claim, however, has no foundation. Madison, during the time of nullification, expressly denied the claim that the proceedings of the legislature of Vir- ginia advocated a legal right of nullification; and pointed out that the proceedings suggested in his report and resolution were peaceable measures, the right to exercise which under the Consti- tution was universally conceded.i^ After the adoption of the resolutions and the report, the Sedition Law was enforced in the most offensive manner in Virginia without any obstruction by the State.13 The language of the Virginia resolutions is more ambiguous than that in the report, and this was undoubtedly intentional, in order that they might suggest a threat, the execution of which was never intended. The Kentucky resolutions, especially that of 11 The Virginia Eeport of 1779-1800, it as it deserves. I notice it for the touching the Alien and Sedition Laws, purpose of remarking that the deolsion &c., Philadelphia, 1850, p. 233. was executed with the same order and 12 Madison's letter to Edward Ev- tranquil submission on the part of the erett, August, 1830, ibid., 249-256. people as could have been shown by See also other statements by Madi- them on a similar occasion to any the son, quoted in Benton's Thirty Years' most necessary, constitutional and View, vol. i, pp. 354-360. popular acts of the government. The 18 By the trial, conviction and sen- General Assembly and the good people tenoe of Callender, the conduct of of this Commonwealth have acquitted which was one of the grounds for the themselves to their own consciences impeachment of Judge Chase. Gov- and to their brethren in America in ernor Monroe said, in his message to support of a cause which they deem a the Virginian General Assembly, in national one, by the stand which they December, 1800 : " In connection with made, and the sentiments they ex- this subject it is proper to add, that, pressed of these acts of the general since your last session, the sedition government; but they have law, one of the acts complained of, for a change In that respect, to a has been carried into effect' in this change in the public opinion, which commonwealth by the decision of a ought to be free ; not to measures of federal court. I notice this event not violence, discord and disunion, which with a view of censuring or criticising they abhor." Benton's Thirty Xears' it. The transaction has gone to the View, vol. i, p. 354. world, and the impartial will Judge of § 33.] NULLIFICATION. 125 1799, were stronger, but the right therein maintained seems clearly to have been rather the " natural right " of revolution, than the assertion of a legal right recognized by the Constitution. The design of Jefferson was, however, accomplished, as he un- doubtedly expected, by the means contemplated by the Constitution, without the use of any extraordinary proceedings. Petitions for the repeal of the obnoxious statutes poured into Congress from all parts of the Union.^* The powers granted by the Alien Law seem never to have been exercised. The prosecu- tions and convictions under the Sedition Law had no effect except to increase the unpopularity of the party that had passed it. Jefferson was chosen to the presidency a year after the adoption of the last Kentucky Resolution. Before his inauguration the two acts had expired by their terms after a futile attempt to continue the only one of them which had been applied.^^ He pardoned all convicts under the Sedition Law,^® and the fines imposed upon them were repaid afterwards under votes of Democratic Con- gresses.i^ Neither Jefferson nor Madison afterwards had occasion to reassert the doctrines promulgated in the famous report and resolutions. But those papers remained the texts' to which the expounders of State rights appealed till the rights of secession and nullification had both been tried and both had failed. § 33. The Doctrine of Nulliflcation, Struck by the example and taking up the cue of Jefferson, when the South was injured by an unjust and oppressive tariff, Calhoun expanded and set forth the doctrine of nullification for her relief. The reputation of its author and the solemnity of the events which it occasioned seem to demand that it be fully and fairly stated in his own language : — ' ' The great and leading principle is, that the General Government emanated from the people of the several states, forming distinct political communities, and acting in their separate and sovereign capacity, and not from all of the people forming one aggregate political MMcMaster'sHistory, voLii.p. 423. "Act of July 4, 1840, 6 St. at L., 15 Ibid., p. 532. p. 802 ; Act of June 17, 1844, 6 St. at L., w Tucker's Life of Jefferson, vol. ii, p. 924. p. 120. 126 JSTATUBE OF THE CONSTITUTION. [CHAP. n. community; that the Constitution of the United States is, in fact, a compact, to which each state is a party, in the character already de- scribed ; and that the several states, or parties, have a right to judge of its infractions ; and in case of a deliberate, palpable, and dangerous exercise of power not delegated, they have the right, in the last resort, to use the language of the Virginia Resolutions, ' to interpose for arrest- ing the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them.' This right of interposition, thus solemnly asserted by the State of Virginia, be it called what it may — State-right, veto, nullification, or by any other name — I conceive it to be the fundamental principle of our system, resting on facts historically as certain as our revolution itself, and deductions as simple and demonstrative as that of any political or moral truth whatever ; and I firmly believe that on its recognition depend the stabilty and safety of our political institutions." ^ " To realize its perfection, we must view the G-eneral Government and those of the states as a whole, each in its proper sphere independ- ent ; each perfectly adapted to its respective objects ; the states acting separately, representing and protecting the local and peculiar interests ; acting jointly through one General Government, with the weight re- spectively assigned to each by the Constitution, representing and protecting the interest of the whole, and thus perfecting, by an admirable, but simple arrangement, the great principle of representation and responsibility, without which no government can be free or just. To preserve this sacred distribution as originally settled, by coercing each to move in its prescribed orb, is the great and difficult problem, on the solution of which the duration of our Constitution, of our Union, and, in all probality, our liberty depends. How is this to be effected? ' ' The question is new when applied to our peculiar political organi- zation, where the separate and conflicting interests of society are represented by distinct but connected governments ; but it is, in reality, an old question under a new form, long since perfectly solved. When- ever separate and dissimilar interests have been separately represented in any government ; whenever the sovereign power has been divided in its exercise, the experience and wisdom of ages have devised but one mode by which such political organization can be preserved — the mode adopted in England, and by aU governments, ancient and modern, blessed with constitutions deserving to be called free — to give to each § 33. 1 Mr. Calhoun's address, stat- bear to each other. Port Hill, July ing his opinion of the relation which 26, 1831. Calhoun's Speeches, 1st ed,, the States and the general government 1843, p. 28. § 33.] NULLIFICATION. 127 co-estate the right to judge of its powers, with a negative or veto on the acts of the others, in order to protect against encroachments the interests it particularly represents : a principle which all of our Con- stitutions recognize in the distribution of power among their respective departments, as essential to maintain the independence of each, but which, to all who will duly reflect on the subject, must appear far more essential, for the same object, in that great and fundamental distribu- tion of powers between the General and State Governments. So essential is the principle, that to withhold the right from either, where the sovereign power is divided, is, in fact, to annul the division itself, and to consolidate in the one left in the exclusive possession of the right all powers of- government ; for it is not possible to distinguish, practi- cally, between a government having all power, and one having the right to take what powers it pleases. Nor does it in the least vary the principle, whether the distribution of power between co-estates, as in England, or between distinctly organized but connected governments, as with us. The reason is the same in both cases, while the necessity is greater in our case, as the danger of conflict is greater where the interests of a society are divided geographically than in any other, as has already been shown." ^ " So far from extreme danger, I hold that there never was a free state in which this great conservative j)rinciple, indispensable to all, was ever so safely lodged. In others, when the co-estates representing the dissimilar and conflicting interests of the community came into contact, this only alternative was compromise, submission, or force. Not so in ours. Should the General Government and a state come into conflict, we have a higher remedy : the power which called the General Govern- ment into existence, which gave it aU its authority, and can enlarge, contract, or abolish its powers at its pleasure, may be invoked. The states themselves may be appealed to, three-fourths of which, in fact, form a power, whose decrees are the Constitution itself, and whose voice can silence all discontent. The utmost extent, then, of the power is, that a state acting in its sovereign capacity, as one of the parties to the constitutional compact, may compel the government, created by that compact, to submit a question touching its infraction to the parties who created it ; to avoid the supposed dangers of which, it is proposed to resort to the novel, the hazardous, and, I must add, fatal project, of giving to the General Government the sole and final right of inter- 2 Mr. Calhoun's address, stating his each other. Port Hill, July 26, 1831. opinion of the relation which the States Calhoun's speeches, 1st ed., 1843, pp. and the general government bear to 30-31. 128 NATTIEE OF THE CONSTITUTION. [CHAP. n. preting the Constitution, thereby reversing the whole system, making that instrument the creature of its -will insteac. of a rule of action impressed on it at its creation, and annihilating, in fact, the authority which imposed it, and from which the government itself derives its existence. That such would be the result, were the right in question vested in the legislative or executive branch of the government, is conceded by aU. No one has been so hardy as to assert that Congress or the President ought to have the right, or deny that, if vested finally and exclusively in either, the consequences which I have stated would necessarily follow; but its advocates have been reconciled to the doctrine, on the supposition that there is one department of the General Government which, from its peculiar organization, affords- an indepen- dent tribunal through which the government may exercise the high authority which is the subject of consideration, with perfect safety to all. " I yield, I trust, to few in my attachment to the judiciary depart- ment. I am fully sensible of its importance, and would maintain it to the fullest extent in its constitutional powers and independence ; but it is impossible for me to believe that it was ever intended by the Consti- tution that it should exercise the power in question, or that it is competent to do so ; and, if it were, that it would be a safe depositary of the power. " Its powers are judicial, and not political, and are expressly confined by the Constitution ' to all cases in law and equity arising under this Constitution, the laws of the United States, and the treaties made, or which shall be made, under its authority' ; and which I have high authority in asserting excludes political questions, and comprehends those only where there are parties amenable to the process of the court.' Nor is its incompetency less clear than its want of constitu- tional authority. There may be many, and the most dangerous in- fractions on the part of Congress, of which, it is. conceded by aU, the court, as a judicial tribunal, cannot, from its nature, take cognizance. The tariff itself is a strong ease in point; and the reason applies equally to all others where Congress perverts a power from an object intended to one not intended, the most insidious and dangerous of all the infractions; and which may be extended to all of its powers, more especially to the taxing and appropriating. But supposing it competent to take cognizance of all infractions of every description, the insuper- 3 " I refer to the authority of Chief to refer to the speech, and speak from Justice Marshall, in the case of Jona- .memory." Calhoun's note, than Eobbins. I have not been able § 33.J snjLLrFicATioN. 1^9 able objection still remains, that it would not be a safe tribunal to exercise the power in question. " It is a universal and fundamental political principle, that the power to protect can safely be confided only to those interested in protecting, or their responsible agents — a maxim not less true in private than in public affairs. The danger in our system is, that the General Govern- ment, which represents the interests of the whole, may encroach on the states, which represent the peculiar and local interests, or that the latter may encroach on the former. ' ' In examining this point, we ought not to forget that the govern- ment, through all its departments, judicial as well as others, is adminis- tered by delegated and responsible agents ; and that the power ivMch really controls, ultimately, all the movements, is not in the agents, but those who elect or appoint them. To understand, then, its real character, and what would be the action of the system in any supposable case, we must raise our view from the mere agents to this high controlling power, which finally impels every movement of the machine. By doing so, we shall find all under the control of the will of a majority, compounded of the majority of the states, taken as corporate bodies, and the majority of the people of the states, estimated in federal numbers. These, united, constitute the real and final power which impels and directs the movements of the General Government. The majority of the states elect the majority of the Senate ; of the people of the states, that of the House of Representatives ; the two united, the President ; and the President and a majority of the Senate appoint the judges ; a majority of whom, and a majority of the Senate and house, with the President, really exercise all the powers of the government, with the exception of the cases where the Constitution requires a greater number than a majority. The judges are, in fact, as truly the judicial repre- sentatives of this united majority, as the majority of Congress itself, or the President, is its legislative or executive representative; and to confide the power to the judiciary to determine finally and conclusively what powers are delegated and what reserved, would be, in reality, to confide it to the majority, whose agents they are, and by whom they can be controlled, in various ways; and, of course, to subject (against the fundamental principle of our system and all sound political reasoning) the reserved powers of the states, with all the local and peculiar interests they were intended to protect, to the will of the very majority against which the protection was intended. Nor will the tenure by which the judges hold their office, however valuable the provision in many other respects, materially vary the case. Its highest possible 130 NATUBE OP THE CONSTITUTION. [CHAP. H. effect would be to retard, and not finally to resist, the will of a dominant majority. "But it is useless to multiply arguments. Were it possible that reason could settle a question where the passions and interests of men are concerned, this point would have been long since settled forever by the State of Virginia. The report of her Legislature, to which I have already referred, has really, in my opinion, placed it beyond controversy. Speaking in reference to this subject, it says : ' It has been objected ' (to the right of a state to interpose for the protection of her reserved rights) ' that the judicial authority is to be regarded as the sole expositor of the Constitution. On this objection it might be observed, first, that there may be instances of usurped powers which the forms of the Con- stitution could never draw within the control of the judicial department; secondly, that, if the decision of the judiciary be raised above the sovereign parties to the Constitution, the decisions of the other depart- ments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final with the decision of that depart- ment. But the proper answer to the objection, is, that the resolution of the General Assembly relates to those great and extraordinary cases in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department may also exercise or sanction dangerous powers, beyond the grant of the Constitution, and, consequently, that the ultimate right of the parties to the Constitution to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another — by the judiciary, as well as by the executive or legislative.' * "Against these conclusive arguments, as they seem to me, it is objected that, if one of the party has the right to judge of infractions of the Constitution, so has the other ; and that, consequently, in cases of contested powers between a state and the General Government, each would have a right to maintain its opinion, as is the case when sovereign powers differ in the construction of treaties or compacts, and that, of course, it would come to be a mere question of force. The error is in the assumption that the General Government is a party to the constitu- tional compact. The states, as has been shown, formed the compact, acting as sovereign and independent communities. The General Gov- ernment is but its creature ; and though, in reality, a government, with 4 State ex rel. McCready v. Hunt, under the appropriate titles. 2 Hill (S. C. Law), 1, A. D. 1834. This 2 Constitution, Article I, Section 9. 3 Constitution, Article IV, Section 2. § 35.] CONSTITUTIONAL ASPECT OP SLAVERY. 159 and to abolish slavery in the District;* although the Constitu- tional guaranty of private property might have been invoked to compel compensation in case of abolition. The free, as well as the slave States, had absolute control over slavery within their jurisdiction. According to international law, slavery is a status, the recognition of which is within the discretion of the State to which a person held as a slave elsewhere is brought, and conse- quently it was usually held within the free States that slaves were free when brought there voluntarily by their master, either for permanent residence or in the course of transit from one part of the country to another.^ These points were also generally conceded. But great friction had been caused by the decisions of the Northern courts in cases of the last kind ; the abolitionists attacked the fugitive slave law as unconstitutional in some of its provisions ; and the slave-owners made the same objection to the personal liberty laws of the Northern States which impeded the recapture of slaves. Much complaint was made in New England against the legislation of the slave States on the coast, especially in South Carolina, which imposed restrictions upon the liberty of colored sailors on vessels from the North. These laws, also, were attacked as impairments of the privileges and immunities secured by the Constitution to citizens of other States.^ The South claimed that this clause of the Constitution did not apply to negroes ; and a majority of the Supreme Court in the Dred Scott case had concurred in this view, which was expressed in the dictum of Chief Justice Taney, that when the Constitution was adopted, it was considered that the blacks " had no rights which the white man was bound to respect."'' The demonstration by Judge Curtis in his dissent, that this opinion was unsound, was accepted by the North. The more important questions, however, were those upon which in general controversies arose. Congress had the power to regulate interstate commerce. Did that include the power to regulate the interstate slave-trade? And could Congress thus compel a free or a slave State to allow the introduction of slaves from other States without her will ? Or on the other hand, could it forbid the transportation of slaves from 4 Constitution, Article I, Section 8. « Constitution, Article IV, Section 2. 6 Lemmon v. People, 20 N. Y., 562, ' Dred Scottu. Sandford, 19 How. 392, and cases cited in arguments of counsel. 407. 160 NATUEE OP THE CONSTITUTION. [CHAP. U. one State to another ? A majority of the justices of the Supreme Court of the United States had agreed that the second at least could not be done.^ Their opinions were, however, mere dicta, and the case was decided upon another point. Lincoln, in his debate with Douglas, had expressed himself as uncertain upon the subject,^ and had the Republican party increased in power, undoubtedly some attempt at interference with slavery would have been made in that direction. The live question Avas as to the right of Congress to regulate slavery in the Terri- tories. For if slavery was not extended to them, they would enter the Union as free States ; and in that way enough of a majority might be obtained to amend the Constitution so as to obliterate the sections which protected property in man. By the Missouri Compromise in 1820, it had been provided that slavery should not be allowed in the territory acquired from France, north of the parallel of 36° 30', which, when extended to the Pacific, included all but a small fraction of what are now the States of Texas, New Mexico and Arizona, the Indian Territory, Oklahoma, and a large part of Southern California.^" 8 Groves v. Slaughter, 15 Peters, 49. States, and that the admission or ex- Dispassionate arguments in support of elusion of slaves brought from one into this power of Congress, and the conse- another of them depends exclusively quent lack of power in the States to in- upon their own particular law." (Last terfere with such interstate trafBc, were resolution introduced by Henry Clay, madeby Clay and Webster at the bar in Jan. 29, 1850, Colton, Last Years of this case. On the other hand the act of Henry Clay, p. 132.) March 2, 1807 (2 St. at L., pp. 429, 430), s Debates between Lincoln and Doug- which abolished the international slave- las. Speech of Lincoln, at Freeport, 111., trade, in Sections 9 and 10, regulated April 27, 1858, p. 89. the interstate slave-trade so far as the lo The language of the statute was as shipment of slaves on coasters was follows : concerned. In 1818 the New Jersey ■• And be it further enacted that in legislature instructed the State delega- all of that territory ceded by France tion in Congress to procure an act pro- to the United States under the name of hibiting the transportation of slaves Louisiana.whichlies north of 36°and30' from any State whose ovm laws forbade north latitude, excepting only such part it. (Schouler's History of the United thereof as is Included within the limits States, vol. iii, pp. 143, 144, note, citing of the State contemplated by this act, Journals of Congress, December, 1818.) slavery and involuntary servitude, other- One of the features of the Clay com- wise than in the punishment of the promise of 1850, as originally Introduced, crimes whereof the party shall have was the declaration " that Congress has been duly convicted, shall be and is no power to prohibit or obstruct the hereby forever prohibited; Provided, trade in slaves between the slave-holding Always, That any person escaping into :35.J CONSTITXJTIONAI, ASPECT OP SLAVERY. 161 It was the general understanding at the time that this was a permanent adjustment of the dividing line between free and slave territories for the future, and it was continued, although with some opposition from the free States, upon the annexation of Texas in 1845." Many in the North, however, rebelled against such a settlement, and subsequent attempts were made by their repre- sentatives to disregard it, especially when the Wilmot Proviso,^^ which affected the land subsequently acquired from Mexico, was proposed and nearly adopted.^^ The Missouri Compromise was the same from whom labor or service is lawlully claimed in any State or Terri- tory of the United States, such fugitive may be lawfuEy reclaimed and conveyed to the person claiming his or her labor or service as aforesaid." u 6 St. atL., 798; Stephens, Constitu- tional Tiev? of the War between the States, vol. ii, p. 164; citing Congres- sional Globe, 28th Congress, 2d sess., p. 193. ^ It Is said that this proviso was originated by Prince John Van Buren at a weekly dining-club of politicians in New York City. According to the story, Samuel J. Tilden then suggested that each of the free-soil representatives in Congress should have a copy of the resolution in his pocket, and at the first opportunity should claim the floor in order to present it. The Speaker recog- nized David Wilmot of Pennsylvania, the most moderate of the crowd, and thus his name secured a permanent place in history. (Ben. Parley Poore, in the Boston Budget, 1885.) w The legislatures of New York and Vermont passed resolutions which were sent to the next session of Congress after the admission of Missouri, deny- ing that any compact was then made between the North and South for a permanent settlement of the question of slavery. (See Stephens, Constitutional View of the War between the States, vol. ii, p. 162, citing Annals of Congress, 16th Congress, 2d Session, pp. 23, 78.) In 1838, upon the application for admis- sion into the Union of Arkansas, which was formed south of the Compromise line out of a part of the Louisiana pur- chase, John Quincy Adams and a num- ber of other Northern members voted against its admission as a slave State. (Stephens, Constitutional View of the War between the States, pp. 163, 164. ) In 1846, upon the consideration of the bill appropriating $2,000,000 for use by the President in purchasing territory from Mexico, the Wilmot Proviso was moved and supported by most of the Northern Whigs and a number of the Northern Democrats. This declared it to be "an express and fundamental condition to the acquisition of any terri- tory from Mexico that neither slavery nor involuntary servitude shall ever ex- ist therein." At the next session, Jan- uary 15th, 1847, when the bill to organize a territorial government for Oregon was under consideration, Burke of South Carolina, to test the views of the Northern members, moved an amendment to that clause of the bill excluding slavery from the Territory in the following words : " Inasmuch as the whole of said territory lies North of 36° 30' latitude, known as the line of the Missouri Com- promise." This was voted down by 113 against 82. The negative votes were all from the North. All the Southern members, and only six from the North in- cluding Stephen A. Douglas, voted for the amendment. (Ibid. pp. 165, 166.) The Wilmot Proviso, which in 1846 had passed the House and failed in the Sen- ate, and with its failure defeated the 12,000,000 bill, was renewed and only 162 NATUEB OF THE CONSTITUTION. [chap. n. finally abrogated by the passage of the Kansas and Nebraska Bill in 1854.1* It was the contention of the North that the clause in the Con- stitution which gave Congress power to make all needful rules and regulations respecting the Territories or other property belong- ing to the United States,i^ included absolute power to regulate their domestic institutions. The South, on the other hand, maintained that the guaranty in the Fifth Amendment of pro- defeated hy a majority in the Senate of ten and five in the House, upon the consideration of the $3,000,000 bill for the same purpose in 1847. All the votes in its favor were from the free States, except that of Senator Clayton of Delaware; and all of the negatives were from the slave States, except five in the Senate, including Cass of Michigan and Dickinson of New York, and thirteen in the House, in- cluding Douglas as before. In 1848, upon the bill for organizing a territorial government for Oregon, Douglas, who was then in the Senate, moved to^ strikeout the general restriction against slavery, and to insert the following: " That the line of 36° 30' of north lati- tude, known as the Missouri Com- promise Line, as defined by the eighth section of an act entitled ' An act to authorize the people of Missouri Ter- ritory to form a Constitution and State Government, and for the admission of such State into the Union on an equal footing with the original States, and to prohibit slavery in certain ter- ritories,' approved March 6th, 1820, be and the same is hereby declared to extend to the Pacific Ocean, and the said eighth section, together with the Compromise therein affected, is hereby revived and declared to be in full force and binding for the future organization of the territories of the United States in the same sense and with the same un- derstanding with which it was originally adopted." The amendment was carried in the Senate by a vote of 33 to 21, but defeated by a vote of 82 to 121 in the House. The Senate receded from their amendment, and passed the House Bill, with an unconditional restriction against slavery, by a vote of 29 to 25. Every Southern senator present voted for the amendment in the Senate, and but seven Northern members, including Douglas and Dickinson from New York and Campbell of Pennsylvania, joined it. All those votes against it in the Senate were from the North. When the amendment was before the House, on Aug. 11th, all of the eighty- two votes In its favor were from the South, except four. Every one of the 121 against it was from the North, except that of Houston of Delaware. On the final vote in the Senate, every North- ern senator voted yea, and every South- ern senator nay, except Benton of Missouri. It was claimed by the South that "this was a complete and total abandonment of the Missouri Com- promise so-called by both Houses of Congress. It met its final doom on the 12th of August, 1848. On that day it fell and was buried in the Senate, where it had originated twenty-eight years he- fore, but had never quieted the abo- litionists a day. It fell, too, not by Southern but by Northern men. The very States to which it owed its pater- nity struck the last decisive blow." (Stephens, Constitutional View of the War between the States, vol. ii, pp. 172, 173.) " Act of May 30, 1884 ; 10 St. at L, 283. 16 Constitution, Article IV, Section 3. § 36.] HISTOEY OP SECESSION. 163 tection to private property forbade the enactment of a law wliicli took away a man's property in slaves when lie removed them to the Territories ; and that the clause in the Constitution upon which the North relied merely conferred power to make regulations concerning the use and disposition of the property wliich the United States had in lands and chattels, and gave no power of general legislation. A compromise was the doctrine of squatter sovereignty formulated by Stephen A. Douglas, according to which the people of each Territory had the absolute right to determine whether slavery should be allowed or forbidden, and Congress had no power to interfere with them.^^ The Supreme Court, in the Dred Scott Case, decided by a majority of six to two that Congress had no power to forbid slavery in the Territo- ries. The dissenting opinion of Judge Curtis, however, was claimed* by the North to be correct ; and it was, in accordance with his views, asserted that tliis ruling was no part of the decision of the Court, since by sustaining a plea to the jurisdiction, the case had been decided before the question arose. i'' Abraham Lincoln had vigorously repudiated the decision; and there was little doubt but that the North would refuse to respect it and seek to have it overruled. Thus stood the question at the time of the election of Lincoln to the presidency. § 36. History of Secession. The election by the Northern States, for President, of a northern man who had said that the Union could not " endure permanently half slave, half free," ^ and had publicly declared his refusal to acquiesce in the opinion in the Dred Scott Case, that slavery could not be constitutionally excluded from the Territories, convinced the South that new safeguards were necessary for the preserva- tion of their peculiar institution. Renewed threats of a dissolu- tion of the Union were received in such a manner by the North as to make it clear that a majority of the people were resolved to submit to no further aggressions by the slave power. The success of South Carolina more than a quarter of a century be- 16 Debates between Lincoln and § 36. i Lincoln's Speech before the Douglas, passim. Eepublican State Convention at Spring- " Dred Scott v. Sandiord, 19 How. , 293. .field, 111. , June 17, 1858. This case is discussed at length, infra. 164 HISTOEY OF SECESSION. [CHAP. II. fore made it seem probable that official action on the part of the slave States would compel concessions. The result of the presidential election had proved that nothing else could do so. A junto of members of Congress from the South, in co-operation with the other leaders of their constituents, planned a demonstra- tion which they resolved should be more imposing, and they ex- pected would be no less effective, than the work of Calhoun and Hayne. On December 14th, 1860, they issued a public address to their constituents, in which they said " that the honor, safety, and independence of the Southern people require the organization of a Southern Confederacy, a result to be obtained only by sepa- rate State secession." ^ The Palmetto State, the location of which, surrounded by slave States, made invasion from the North difficult, again took the lead. On December 20th, a convention of the people of South Carolina unanimously adopted the following ordinance of secession : — ' ' An ordinance to dissolve the Union between the State of South Carolina and other States united with her under the compact entitled ' The Constitution of the United States of America.' " We, the People of the State of South Carolina, in Convention as- sembled, do declare and ordain, and it is hereby declared and ordained, that the Ordinance adopted by us in Convention, on the Twenty-third of May, in the year of our Lord One thousand seven hundred and eighty-eight, whereby the Constitution of the United States was rati- fied, and also all other Acts and parts of Acts of the General Constitu- tion, are hereby repealed, and the Union now subsisting between Soutli Carolina and other States, under the name of the United States of America, is hereby dissolved." Action by a convention rather than by the legislature was due to the fact that, as the people through a convention had originally ratified the Constitution, it might have been contended that the legislature had no such authority .^ The people, however, were considered the sovereign power of the State. The ordinance was followed by a declaration of independence drawn with studied imitation of the original, to which it referred in its preamble, and 2 This was signed by about half the (Rhodes, History of the United States, members of the Southern delegations vol. iii, p. 178). in both houses, including Jefferson « See the language of Madison, Davis, Slidell, Benjamin and Wigfall quoted supra, § 19. § 36.J ' SECESSION OP SOUTH CAEOLINA. 165 from which was copied its conclusion. The body set forth the doc- trine that the Constitution was a compact, a breach of which by one party dissolved the others from their obligations. It recited those clauses inserted by way of compromise in the Constitution for the protection of the right of property in man ; and emphasized the pro- vision for the return of fugitive slaves. As infractions were set forth : the enactment by fifteen Northern States of personal-liberty laws, which interfered with the operation of the Fugitive Slave law ; the refusal of their officers to enforce, and of their people to obey, this constitutional mandate ; the denial of the right of transit for slaves ; and the refusal of two State executives to deliver, on demand of the executives of Southern States, persons accused of having committed crimes in connection with attempts at forcible emancipation. Complaint was made of the formation of a sec- tional party, which, " aided in some of the States by elevating to citizenship persons who, by the supreme law of the land, are inca- pable of becoming citizens," had elected President a man whose opinions and purposes were hostile to slavery. ' "It has announced that the South shall be excluded from the common territory ; that the judicial tribunals shall become sectional, and that a war must be waged against slavery until it shall cease throughout the United States." In conclusion it was declared that the Union was dissolved ; and South Carolina had resumed her position among " the nations of the world as a free, sovereign, and independent State." * The day following the action of the South Carolina conven- tion, the representatives of that State retired from their seats in Congress. On January 5th, 1861, a caucus of the senators of seven Southern States recommended to their constituents imme- diate secession and the organization of a new Confederacy.^ * This was the work of E. B. Khett Arkansas, were absent from the meet- (Ehodes, History of the TJiiited States, ing : " Resolved, That, in our opinion, vol. iii, p. 204). It is printed at length each of the States should, as soon as by Preston, Documents Illustrative of may be, secede from the Union. Re- American History, p. 305. solved, That provision should be made 5 The following resolutions were for a convention to organize a con- adopted by the Senators of Georgia, federaoy of the seceding States : the Florida., Alabama, Mississippi, Louisi- convention to meet not later than the ana, Texas and Arkansas. Messrs. 15th of February, at the city of Mont- Toombs, of Georgia, and Sebastian, of gomery, in the State of Alabama. 166 HISTORY OF SECESSION. [chap. II. The second State to secede was Mississippi, wMch adopted an ordinance of secession, January 9th, 1861. Florida followed on the 10th, Alabama on the 11th, Georgia on the 19th, and Louisi- aina on the 28th. Each of these States acted through conventions, and in none was the vote unanimous. In Mississippi, Alabama, Georgia, and Louisiana, propositions to submit the question to a direct popular vote were defeated. The Texas convention passed an ordinance of secession February 1st, and on the 7th submitted it to the people, a majority of whom adopted it on the 23d.® All these, like South Carolina, were separated from the free by the border slave States, upon whom they relied to preserve neutrality Resolved, That, in view of the hostile legislation that is threatened against the seceding States, and which may- be consummated before the 4th of March, we ask instructions whether the delegations are to remain in Con- gress until that date, for the purpose of defeating such legislation. Resolved, That a committee be and are hereby appointed, consisting of Messrs. Davis, Slidell, and Mallory, to carry out the obj ects of this meeting. " (Davis, Else and Fall of the Confederate Govern- ment, vol. i, p. 204, note). " McPherson, History of the Ke- bellion, pp. 2-6. The other ordinances of secession ^Yere similar in substance to that of South Carolina. The Geor- gia ordinance concluded by the decla- ration, "that the State of Georgia is in the possession and exercise of all those rights of sovereignty which be- long and appertain to a Free and Sove- reign State " (Stephens, Constitutional VIhw of the War between the States, vol. ii, p. 314). When Tennessee finally seceded, her Legislature adopted a declaration of independence, in which she claimed the right of revolution. The so-called "Sovereignty Conven- tion," in Kentucky, went through a similar form (see infra, over note 66). The Mississippi convention adopted a " Declaration of the imme- diate causes which induce and justify the secession of the State." The pre- amble to the Arkansas ordinance mentioned as one of the moving causes, Lincoln's call for troops to at- tack the seceded States (McPher- son, History of the Kebellion, pp. 4, 5, 8 ; Ehodes, History of the United States, vol. iii, pp. 274, 404; Hay and Nicolay, vol. iv, p. 201). On Jan. 6, 1861, Mayor Fernando Wood ad- dressed a message to the Common Council of New York City, in which he said that a dissolution of the Union into three or more republics seemed inevitable; that it was "folly to dis- guise the fact that, judging from the past. New York may have more cause o£ apprehension from the aggressive legislation of our own State than from external dangers"; and that "amid the gloom which the present and pros- pective condition of things must oast over the country, New York, as a free City, may shed the only light and hope of a future reconstruction of our once blessed Confederacy." (McPherson, History of the Rebellion, pp. 42^4. Rhodes, in his History of the United States (vol. iii, p. 369), quotes a let- ter to Jefferson Davis by Forsyth, a Confederate Commissioner, dated April 4, 1861, in which he says that there was then a" widespread conspi- racy in New York for a secession and its establishment as a free city. § 36.] THE BOEDER STATES. 167 at least, and to protect them from the North pending the negotia- tions for the compromise which they expected to obtain. They were fortified, moreover, by an opinion given by the Attorney- General, Judge Jere. S. Black, to President Buchanan, that under existing laws the President could not use force against them, ex- cept to defend attacks upon the property of the government, and that the United States had no power under the Constitution to wage war upon one of the States of which they were composed.'' In case of Avar they knew that the border States must be at first the battle-ground ; and, many of them believed, what was said by one of their leaders, that their citizens might " go home, raise cotton and make money," leaving the discomforts of the situation to their less fortunate allies.^ The border slave States — Maryland, Virginia, Kentucky, and Missouri — understood the perils of their situation ; and one at least of them, Missouri, had some time before made preparations to maintain neutrality in case of hostilities between the States who surrounded her.® Such of their legislatures as were then in session, early in 1861, either declared neutrality or recommended such a compromise as the others were anxious to obtain.^" Arkansas, Tennessee, and North Carolina, although not on the border, were more exposed than those nearer the centre of the slave States, and accordingly hesitated. The convention of Arkansas defeated the ordinance of secession, March 18th, by a majority of four ; submitted the question to a vote of the people ' Opinion of Attorney-General Black, 'In 1855 and 1856, Missouri legis- Nov. 20, 1860; 9 Op. A. Gr. 516. It is lated to provide means for raising said by Jefferson Davis, that two fifty thousand volunteers, to be used, members of the Supreme Court, Judge it was said by the promoter, in " pre- Campbell of Louisiana, and Judge Nel- venting our Northern and Southern son of New Yorli, expressed a similar brethren from flying at each other's view to President Lincoln. (Kise and throats, as they probably will do at Fall of the Confederacy, vol. i, pp. 267, the next presidential election in 1856, 268). See also Campbell's address to or passing that, certainly in 1860, the Southern Historical Society. The unless the border States talie action soundness of these views will be con- such as this to keep the peace." sidered elsewhere. (Carr's Missouri, pp. 300, 301). 8. This remark, which was attributed i» McPherson, History of the Eebel- to Howell Cobb of Georgia, had con- lion, pp. 4-11. The separate action siderable influence in turning Ken- of each of these States is described in tueky towards the Northern side a subsequent part of this section. (Shaler's Kentucky, p. 249). 168 HISTOEY OF SECESSION. [OHAP. n. in the following August; and provided for the appointment of delegates to an intermediate convention of the border States, in which category, on account of her abutment on the Indian Ter- ritory, she claimed to belong. In Tennessee, February 8th, and North Carolina, February 28th, a majority of the people voted against a convention." In the latter State by a majority of only six hundred and sixty-one.^^ The representatives of the seceding States in the House of Representatives retired from their seats without ceremony, although in some cases they gave written notice to the speaker.^^ A number of the Senators, however, with the dramatic instinct of the Southern people, seized the opportunity to make a scene in their assumed capacity as ambassadors from sovereign States by valedictories which announced the reasons for their retirement in a manner well calculated to impress upon the people of the North the determination of the South and the serious character of the crisis reached.!* The United States judges and district attorneys resigned as soon as their States seceded; but the postmasters did not before the bombardment of Fort Sumter. ^^ So, there was hardly any change in the habits of the people until that time. A congress from the seceded States met, February 4th, at Montgomery, Alabama; 11 MoPherson, History of the Kebel- " The Speech of Jefferson Davis, lion, pp. 4, 5 ; Stephens, Constitutional Jan. 21, which was dignified and ap- View of the War between the States, propriate to the occasion, is printed in vol. ii, pp. 363-366. The Else and Fall of the Confederate 12 Ibid. Government, vol. i, pp. 221-225. Bef- 13 Blaine, Twenty Years in Con- erence has already been made to the gress, vol. i, pp. 242, 243. John E. Speech of Judah P. Benjamin, supra, Bouligny of Louisiana, remained loyal § 12, note 21. A summary of all ot and retained his seat in the House them is made by Blaine, Twenty Years (Nicolay and Hay, Life ot Lincoln, in Congress, vol. i, pp. 244-254. vol. iv, p. 195). Wigfall of Texas, al- is 12 St. at L., p. 151; Rhodes, though he openly recommended se- History of the United States, vol. iii, cession, retained his seat in the Sen- p. 142. Mr. Justice Wayne of Georgia ate both throughout Buchanan's term retained his seat in the Supreme and at the special session called by Court of the United States until his Lincoln in March, 1861 (ibid., pp. death in 1867. Mr. Justice Campbell 195, 196). On July 11, after he had of Louisiana resigned and became as- left the Senate, he was expelled sistant secretary of war in the Con- (TaJt's Senate Election Cases, contin- federacy. ued by Furber, p. 741. See infra.) § 36.] CRITTENDEN BBSOLUTIONS. 169 adopted, on the 8th, a provisional Constitution ; ^^ on the following day elected president, Jefferson Davis of Mississippi, and vice-presi- dent, Alexander H. Stephens of Georgia,i^ of whom the latter had opposed secession, but after defeat cast his lot with that of his State ; ^^ continued in force and office until further legislation all statutes of the United States not inconsistent with the new Consti- tution,!^ and all Federal officers with similar functions in the Con- federacy ;2'' authorized the appointment by the President of a commission of three persons to be " sent to the government of the United States of America, for the purpose of negotiating friendly relations between that government and the Confederate States of America, and for the settlement of all questions of disagreement between the two governments, upon principles of right, justice, equity, and good faith ; " ^^ and shaped all their proceedings so as to facilitate a return to the Union without friction upon a com- pliance with their demands.^ It had been wisely determined that Kentucky and Virginia should lead, as in the past, to obtain concessions to the South under the plea of the danger of disruption. In imitation of his predecessor, Henry Clay, John J. Crittenden, of Kentucky,23 introduced into the Senate, of which he was the oldest member, a proposition for amendments to the Constitution, upon the adoption of which the Slave States were willing to remain in the Union.^* These re-established the Missouri compromise by 18 Davis, Else and Fall of the Con- ^ This is manifest from the action federate Government, vol. i, p. 220. of Virginia, which was evidently pre- It is discussed infra, § 37. arranged ; the minority report to the 1' Ibid., p. 230. House by seven representatives of the 18 Stephens, Constitutional View of Slave States, who recommended the the War between the States, vol. ii, Crittenden Resolutions (MoPherson, pp. 263-309. History of the Eebellion, p. 58) ; and 19 Confederate Statutes at Large, the address of the Virginia delegation Provisional Government, p. 27. to their constituents upon the re- 20 Ibid., p. 27, 28. jeotion of these resolutions (ibid., pp. 21 Ibid., p. 92. 39, 40). Toombs of Georgia, who 22 Znfra, § 37. knew how to demand more than he 28 According to the New York Her- was willing to accept, in his speech in aid, these were drawn by John C. the Senate, Jan. 7, 1861, laid down as Breckinridge, then Vice-President, and conditions upon the remanenoe of M. C. Johnson (McPherson, History Geotgia in the Union, that slavery of the Eebellion, p. 75). should be authorized and protected in 170 HISTORY OF SECESSION. [chap. II forbidding slavery above, and establishing it with a right to pro- tection as property by their governments below, the parallel of thirty-six degrees thirty minntes in all the Territories then held or thereafter acquired, until the admission of each as a State, when Congress was forbidden to impose any condition affecting slavery. They expressly provided that " Congress shall have no power to interfere with slavery, even in those places under its exclusive all Territories of tlie United States; and that more efficient provisions should be made for the return of fugitive slaves and criminals against slave property, and for the punish- ment of those who should aid or' abet insurrection in another State (Blaine, Twenty Years in Congress, vol. i, pp. 246, 247). Alexander H. Stephens, the Vice-President of the Confederacy, says, in his Constitutional View of the War between the States, vol. ii. p. 321 : "The truth is, in my judgment, the wavering scale in Georgia was turned by a sentiment, the key-note to which was given in the words — 'We can make better terms out of the Union than in it.' It was Mr. Thomas E. E. Cobb who gave utterance to this key- note, in his speech before the Legis- lature two days before my address before the same body. This one idea did more, in my opinion, in carrying the State out, than all the arguments and eloquence of all the others com- bined. Two-thirds, at least, of those who voted for the Ordinance of Seces- sion, did so, I have but little doubt, with a view to a more certain Ee-for- mation of the Union." And again speaking of Lincoln's proclamation, calling for troops (ibid., p. 356) : " The effect of this upon the public mind of the Southern States cannot be described or even estimated. The shock was not unlike that produced by great convulsions of nature . . . the upheavings and roekings of the earth itself ! It was not that of fright. Far from it! But a profound feeling of wonder and astonishment ! Up to this time, a majority, I think, of even those who had favored the policy of secession, had done ao under the belief and convic- tion that it was the surest way of secur- ing a redress of grievances, and of bringing the Federal Government back to constitutional principles. Many of them indulged hopes that a Ee-forma- tion, or a Ee-construction of the Union would soon take place on the basis of the new Montgomery Constitution, and that the Union, under this, would be continued and strengthened, or made more perfect, as it had been in 1789, after the withdrawal of nine States from the first Union, and the adoption of the Constitution of 1787. This proclamation dispelled all such hopes." He says again that when South Carolina attacked Fort Sumter, Lincoln should have called a Congress of the States which had not seceded, to consult them upon his action in the matter. " I will now go further, and tell you what I think the Congress of States ought to have done under the circumstances, if they had been bo convened by him. They should have called a Convention of all the States, with a view to a readjustment of their relations. If the seceded States had responded to that call, well and good. In that event I have but little doubt that the result would have been a peaceful adjustment of all matters in controversy, by the derelict States j36.] CRITTENDEN EESOLTTTIONS. 171 jurisdiction in the Slave States ;" and should never interfere with slavery in the District of Columbia, without the consent of Mary- land and Virginia, so long as slavery continued in these States, without the consent of the inhabitants of the District, and with- out compensation to them. Congress was also inhibited fi-om forbidding officers of the United States, or members of Congress, to take their slaves to and from the capital, and from interference with the transport of slaves between the States or between a State and a Territory south of the Missouri line ; and was empowered and directed to provide for the payment of the value of a fugitive slave to his owner where his return was prevented by force. The proposed amend- ments further ordained that neither these nor the provisions of the Constitution as to the ratio of representation and the return of fugitive slaves should ever be affected by any future amendment ; and that no amendment should ever be made to permit Congress heretofore referred to . . . those which had openly and avowedly refused to perform their obligations under the Constitution . . . receding from their position, (Judge Chase's opinion to the contrary, notwithstanding), and that upon this redress of grievances and righting of the wrong complained of, the seceded States would have re- turned to their positions ; and the whole Federal machinery, at no dis- tant day, would have been restored to its normal and harmonious action in all its parts, as peacefully and joy- ously as when it first went into opera- tion." (Ibid., pp. 416, 417. See also his Speech in opposition to the seces- sion Ordinance of Georgia, quoted ibid., pp. 306, 307.) Stephens gives the following testi- mony concerning the attitude of Jef- ferson Davis ; " I never saw a word from him recommending secession as the proper remedy against threaten- ing danger.'! until he joined in the general letter of the Southern Senators and Kepresentatives in Congress to their States advising them to take that course. This was in December, 1860, and not until after it was ascer- tained in the Committee of the Senate, on Mr. Crittenden's proposition for quieting the apprehensions and alarm of the Southern States, from the ac- cession of Mr. Lincoln to power, that the Kepublieans, his supporters, would not agree to that measure. It is well known that both he and Mr. Toombs both declared their willingness to ac- cept the adoption of Mr. Crittenden's measure as a final settlement of the controversy between the States and sections, if the party coming into power would agree to it in the same spirit and with the same assurance." (Ibid., vol. i, pp. 416, 417.) See also Douglas' speech in the Senate, Jan. 3d, 1861, stating the position of Toombs and Davis at that time. (Cong. Globe, 2d Sess., 36th Con- gress, appendix, p. 441) ; Report by H. P. Bell, commissioner of Georgia to Tennessee (Journal of Georgia Con- vention, p. 368); article by J. D. Cox in Atlantic Monthly for 1892, p. 390 ; infra, note 56. 172 HISTOBT OP SECESSION. [CHAP. n. to interfere with slavery within the States.^ The resolutions also provided, for amendments to the Fugitive Slave law, so as on the one hand to provide for the punishment of oppo- sition to it, and on the other to give the commissioner the same fee, irrespective of his decision, and to only compel the assistance of the power of the county in case of resistance or danger of res- cue. There was also a sop to the North, in a declaration that the laws for the suppression of the slave trade should be efficiently executed, and, if need be, further enactments for that purpose should be made.^^ Meanwhile, in order to aid the cause of slavery, Virginia, mind- ful of her action during the experiment of nullification, on January 19th, 1861, called a conference of commissioners of — "all such States, whether slave-holding or non-slave-holding, as are willing to unite with Virginia in an earnest effort to adjust the present unhappy controversies, in the spirit in which the Constitution was origi- nally formed, and consistently with its principles, so as to afford to the people of the slave-holding States adequate guarantees for the security of their rights. The resolutions for the call expressed the opinion that the proper sitions embraced in the Crittenden resolutions, — ' ' so modified as that the first article proposed as an amendment to the Constitution of the United States shall apply to all the territory of the United States now held, or hereafter acquired, south of latitude thirty-six degrees and thirty minutes, and provide that slavery of the African race shall be effectually protected as property therein during the continuance of the territorial government, and the fourth article shall secure to the owners of slaves the right of transit with their slaves be- tween and through the non-slave-holding States and Territories, consti- tute the basis of such an adjustment of the unhappy controversy which now divides the States of this confederacy, as would be accepted by the people of this commonwealth." ^ The conference, which had no powers except to affect public 25 MoPherson, History of the Be- ence Couvention, p. 9. The resolutions bellion, pp. 64, 65. Blaine, Twenty were passed at a special session of the Years in CJongress, vol. i, pp. 261, 262. legislature, called for that purpose. 2" Ibid. Tyler, Life and Times of the Tylers, 2' Crittenden, Beport of the De- vol. ii, p. 580. bates and Proceedings of the Confer- § 36.J PEACE CONPEEBNCE. 178 opinion, since, under the Constitution, amendments could only be proposed by Congress or by a convention of the States called by Congress upon the application of two-thirds of the State legisla- tures,28 met at Washington, February 4th, 1861, and chose as pre- siding officer ex-President Tyler. The delegates were appointed by the legislatures, governors, or conventions of twenty-one States, seven of whom were slave States and fourteen free.^^ Three of the Northwestern ^" and the two Pacific States,^i all of whom were free, together with the six who had already seceded and Texas and Arkansas, whose secession unless the rest returned, was from their location obviously inevitable, remained away. On the 27th, the conference adopted a report which recom- mended the adoption of seven amendments to the Constitution,^^ and these were, on the same day, reported by their president to Con- gress.^ Their opinions were greatly divided. Eight of the free States were opposed to the recommendation of any specific amend- ments.^ A recommendation of the re-enactment of the Missouri Compromise was carried by the vote of a single State, and would have been defeated had not David Dudley Field left the city, under the impression that his vote in the New York delegation would be counted, and thus cast the voice of that State against the proposition.^ In no other case were the votes of more than six free States ever in favor of any amendment which gave fur- ther protection to slavery, except that which permitted State 28 Constitution, Article V. The in- War between the States, vol. ii, p. validity of any action by the Confer- 364), and this was Lincoln's preference ence was demonstrated by Roger S. as expressed in his inaugural. Baldwin, a grandson of Roger Sher- 29 Chittenden, Report of the Debates man, who had himself been formerly and Proceedings of the Peace Conven- Govemor and United States Senator tion, passim. Stephens, Constitutional of Connecticut ; but his proposition to View of the War between the States, recommend all the State legislatures vol. ii, p. 364. to unite in a request to Congress to ^o Michigan, Missouri and Minne- call such a convention in the method sota. prescribed in the Constitution was de- 'i Oregon and California, feated by the vote of thirteen states to ^2 Crittenden's Report, pp. 440-452. eight (ibid., pp. 59-67, 411-417.) The as ibid., pp. 471^73. Kentucky legislature had requested ^ Ibid., p. 417 ; supra, note 28. Congress to call such a convention *5 iq^ew York was recorded as di- (ibid., pp. 62, 63). The Convention of vided under protest (ibid., pp. 441, Missouri had approved a similar course 442; 596-604). (Stephens, Constitutional View ot the 174 HISTOEY OF SECESSION. [CHAP. II. legislatures to provide for the return of fugitive slaves. This was supported by eight free States, in three of virhoni the delega- tions were not unanimous.^^ The conference, by the votes of eleven States to ten, refused to recommend an amendment to the Consti- tution forbidding secession,^^ and, by the votes of ten States to seven, refused to declare secession unconstitutional.^^ Their ree- ommendations included the substance of the Crittenden resolu- tions ; but the Missouri Compromise was limited to the Territories then existing and the language was ambiguous.^^ There was no provision compelling territorial legislatures to protect slaves as property ; and it was provided that — " no territory shall be acquh'ed by the United States, except by discov- ery and for naval and commercial stations, depots, and transit routes, ■without the concurrence of a majority of all the Senators from States which allow involuntary ser^^tude, and a majority of all the Senators from the States which prohibited that relation ; nor shall territory be ac- quired by treaty, unless the votes of a majority of all the Senators from each class of States hereinbefore mentioned be cast as a part of the two- thirds majority necessary to the ratification of such treaty." The grant of the right of transit with slaves was further pro- tected so as to forbid a discriminating tax on the shipments of slaves, and limited so as to exclude " the right of transit in or through any State or Territory, or of sale or traffic, against the laws thereof." It was provided that the constitutional provision for the return of fugitive slaves — " should not be construed to prevent any of the States, by appropriate legislation, and through the action of their judicial and ministerial 88 Crittenden's Eeport, p. 444. claimed by the Mexican government " Ibid., p. 398, 409. years before the acquisition of tlie ^' Il'id. western territory by the UnitedStates ; 89 The language used was that " in and he maintained that the law of New all the present territory south of the Mexico was the statvs of free soil," line mentioned, the status of persons "I thanked him for his explanation held to service or labor, as it now ex- afterwards. I went to him and said: exists, shall not be changed." Accord- 'You have, at all events, established ing to Tyler, Chase stated in the con- your character as an honest and frank ference" that the whole interpretation man.'" (L. G. Tyler, Letters and of the section was that it was the Times of the Tylers, vol. ii, p. 605. See status fixed by the Mexican law of also the speech of Chase, as reported emancipation, which had been pro- by Chittenden, pp. 326, 327.) § 36.] CONCESSIONS OFFERED BY THE NOETH. 175 officers, from enforcing the delivery of fugitives from labor to the per- son to whom such service or labor is due. " ^ Congress was directed to " provide by law for securing to the citizens of each State the privileges and immunities of citizens in the several States." *i Amendments of the Constitution to forbid the foreign slave trade, and slave trade in the District of Colum- bia, both of which were already forbidden by law, were also recom- mended. Slight as were these alterations of her ultimation, the South refused to accept them. Upon the presentation of their report to the State legislature, the commissioners of Virginia denounced the recommendations "as a delusion and a sham, and as an insult and an offence to the South ; " *^ and but six Senators supported Crittenden when he moved to substitute them for those which he had originally proposed.** The temper as well as the Conscience of the North was by this time thoroughly aroused. Her leading statesmen realized that if submission was made once again, the future would produce still more arrogant demands ; there would be no limit to the aggres- sions of the slave power ; and the example would arouse similar opposition throughout the Union to unpopular legislation of every kind, so that the Federal government would become as impotent and disorganized and society as disordered as in the Spanish American republics.** lo This was for the purpose of sent to any concession' or compro- annulling the ruling in Prigg v. Penn- mise which looks like buying the sylvania, 16 Peters, 534. privilege of taking possession of the *i This was designed to protect government to which we have a con- black sailors in Southern ports. See stitutional right ; because, whatever I the discussion of the appropriate may think of the merit of the various section of the Constitution, infra. propositions before Congress, I should 42 Feb. 28, 1861 (McPherson, His- regard any concession in the face of tory of the Kebellion, p. 6). menace as the destruction of the gov- *3 Douglas, Harlan, Andrew John- emment itself, and a consent on all son, Kennedy, Morrill and Thomson hands that our system shall be (ibid., p. 69). brought down to a level with the ex- « Lincoln, in a conversation, re- isting disorganized state of affairs in ported in the New York Tribune, Jan. Mexico. But this thing will here- 30 1861, used these prophetic words : after be, as it is now, in the hands of "I will suffer death before I will the people ; and if they desire to call consent or advise my friends to con- a convention to remove any grievances 176 HISTORY OF SECESSION. [chap. II. By the compromises in the Constitution, they were willing to abide. They were prepared to irrevocably agree that no amend- ment to the Constitution should permit the Federal government to interfere with slavery within a State.*^ They even offered to secure the effective operation of the Fugitive Slave law.*^ But they refused to imbed in the Constitution, beyond the power of amendment except by unanimity, inhibitions against inter- ference by the United States with slavery in the District of Columbia and the Territories, and the regulation of the transit of slaves between the States ; and to make similar guaranties against any constitutional amendment which might affect the original compromises 47 The Peace Conference, called by Virginia, failed. The Grit- for the permanence of vested rights, it is not mine to oppose " (MoPher- son, History of the Eebellion, p. 67). « Feb. 28, 1861, the following con- stitutional amendment passed the House by a vote of one hundred and thirty-three to sixty-five, and March 2, the Senate by twenty-four to twelve, the requisite two-thirds in each case : "Article XIII. No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere within any State, with the domestic institu- tions thereof, including that of per- sons held to labor or service by the laws of said State " (McPherson, His- tory of the Bebellion, pp. 59, 60). Lin- coln, in his inaugural address, March 4, expressed his approval of the amend- ment. The Ohio and Maryland legis- latures immediately ratified it. Had the South accepted this as a final set- tlement of the controversy, it would undoubtedly have been ratified by a sufBcient number of the States. Since the peace-offering was not satisfactory, the amendment was rejected by the New England States ; in many of the others it was not even considered, and it obtained no ratifications except by the two States who first acted upon the subject (Blaine, Twenty Tears in Con- gress, vol. i, pp. 266-287). The Thir- teenth Amendment, which was rati- fied, abolished slavery. ^ An amendment of the Fugitive Slave Law, which transferred the hear- ing upon any disputed facts to the re- sidence of the claimant, passed the House, March 1, 1861, by a vote of nine- ty-two to eighty-three ; but was not considered by the Senate. A conference of seven Northern governors, in December, 1860, agreed to recommend in official messages the repeal of the personal liberty laws by their respective States (Rhodes, His- tory of the United States, vol. iii. p. 252, citing Belmont's Letters, p. 27). Banks made this recommendation in the legislature of Massachusetts. Rhode Island repealed her Personal Liberty law in January, 1861 (Ehodes, ibid., p. 253). An act providing that a fugitive from justice should be surrendered by the United States judge of the District where he was found was defeated in the House by 125 nays to 48 yeas (McPherson, History of the Eebellion, pp. 61, 62). *' In Lincoln's correspondence be- tween his election and inauguration §36.] CONCESSIONS OFFERED BY THE NORTH. 177 tenden resolutions, whicli embodied the demands of the slave States, were rejected by the North, March 2d, two days before the inauguration of Lincoln.*^ Two days earlier, February 28th, the Confederate Congress had passed a bill authorizing President Davis to take command of the military forces of the seceded States.*^ Lincoln's inaugural was conciliatory in its tone. He expressed willingness to approve a constitutional amendment making it for- ever impossible for the Federal government to interfere with slavery within a State without its consent. He further suggested that a convention of the States was the best method of preparing amendments to the Constitution.^" He repudiated the right of secession; and announced his determination to maintain the laws of the United States.®^ It was well known that there was a he said again and again that he was "inflexible on the territorial ques- tion." (Lincoln to Thurlow Weed, Dee. 17, 1860, Nicolay and Hay, Lin- coln, vol. iii, p. 253 ; to Kellogg, Dec. 11, 1860, ibid., p. 257 ; to Washburn, Dec. 13, 1860, ibid., p. 259; to Sew- ard, Feb. 1, 1861, ibid., p. 260.) "Pre- vent as far as possible any of our friends from demoralizing themselves and their cause by entertaining propo- sitions for compromise of any sort on slavery extension. There is no pos- sible compromise upon it but what puts us under again, and all our work to do over again. Whether it be a Missouri line or Eli Thayer's popular sovereignty, it is all the same. Let either be done, and immediately fili- bustering and extending slavery re- commences. On that point hold firm as a chain of steel " (Lincoln to Wash- burne, Dec. 13, 1860, ibid., p. 259). He wrote: "I probably think all opposition, real and apparent, to the fugitive slave clause of the Constitu- tion ought to be withdrawn " (Lincoln to Weed, Dec. 17, 1863, ibid., p. 253.) And later : " As to fugitive slaves. Dis- trict of Columbia, slave trade among the slave States, and whatever springs of necessity from the fact that the Institution is amongst us, I care but little, so that what is done be comely and not altogether outrageous. Nor do I care much about New Mexico, if further extension be hedged against " (Lincoln to Seward, Feb. 1, 1861, ibid., p. 260. See also ibid., pp. 258, 259). For a summary of the dififerent propo- sitions for a settlement of the contro- versy, see Nicolay and Hay, Life of Lincoln, vol. iv, pp. 220-222. ^8 The vote in the Senate was nine- teen yeas to twenty nays, six senators from the slave States refusing to vote, since they knew that unless the amendments had the support of the North in Congress, they would not be ratified by the States. (McPherson, History of the Rebellion, pp. 66, 67). ^» McPherson, History of the Rebel- lion, p. 117. ^f This was the proposition of ex- Governor Baldwin to the Peace Con- ference, supra, note 28. ^1 He wrote this with the Constitu- tion, Clay's speech in support of the compromise of 1850, Jackson's procla- mation against nullification, and Web- ster's reply to Hayne before him (Herndon, Lincoln, vol. iii, p. 478). He 178 HISTOEY OF SECESSION. [CHAP. II. division in his cabinet as to the right and expediency of defending the places owned by the Federal government in the seceded States ; and it was the belief of the commissioners sent by the Confederate government to negotiate upon this point, that Seward had promised that Fort Sumter would be surrendered.^^ jjany of the leaders of the Republicans in the North, amongst them Horace Greeley, advised that the seceding States be permitted to depart in peace.^^ The South still believed that when she showed she was in earnest, the North would yield; and that even if Lincoln wished to resist, he was powerless to act under existing laws.^ On April 12th, the militia of South Carolina, under the command of a Confederate general, fired upon Fort Sumter, which was held by a small company of the army of the United States, in Charleston harbor, without provisions to endure a siege, and within the range of guns from the shore. After a short resistance to save liis honor, Major Anderson two days later surrendered the fort. But the victory was indeed like one by Pyrrhus. The North, roused by this blow, rose to the defense of the flag. On the 15th, Lincoln called for seventy-five thousand troops to defend the Union, and the governors of all the free States at once re- sponded.^^ The North had received the call and refused to lay down her cards. The South had too much pride to recede. Her leaders had raised a storm which it was now too late to cease ; and they were carried along by the tide.^ made a few alterations at the sugges- ^e Although this is not the view tion of Seward (Nicolay and Hay, usually taken by historians, it is diffi- Life of Lincoln, vol. iv, pp. 321-323). oult for the writer to see howanystu- ^2 Davis, Kise and Pall of the Con- dent with personal experience in the federate Government, vol. i, pp. 263- manoeuvres of politics or of litigation 281, 675-685. can escape this conclusion. Northern 53 "If the Cotton States shall de- writers during the war, and those who cide that they can do better out of the are still under the influence of the Union than in it, we insist on letting passions of that time, charge that se- them go in peace." The Tribune, cession was the result of a conspiracy Nov. 9, 1860. by a few ambitious men for the per- ^* See note 7, 8upra. manent disruption of the Union and 55 See infra, § 38, note 1. The con- the establishment of a great slave stitutional authority for this procla- empire. The evidence collected by mation is discussed in a subsequent Ehodes in his History of the United chapter. States,* vol. iii, pp. 272-280, 381-385, * Rhodes, however, does not seem to agree with the present writer as to the original intentions of the Southern leaders. §36.] SECESSION AND DIVISION OP VIRGINIA. 179 On May 13th, the people of North Carolina elected a conven- tion, which, on the 21st, passed an ordinance of secession. The Legislature of Tennessee, at a secret session on May 7th, passed a declaration of independence, and an ordinance dissolving the Fed- eral relations between the State and the United States, which was submitted to the people, and adopted the 8th of June. In Vir- ginia, which had at first proposed a compromise between the two sections of the country, on April 17th, an ordinance of secession was passed in convention, and, June 25th, was adopted by a popu- lar vote ; ^■^ there being an understanding with the other seceded States that they would, as hostages for her protection, remove their President and Congress to Richmond, which was, on May 21st, made the capital of the Confederacy.^^ Her people on the west of the AUeghanies, however, who abutted on the free States of Ohio and Pennsylvania, knew that their interests as well as their sympathies were on the Northern side, and broke away from the rest of the State. Two years later, June 20th, 1863, Congress admitted West Virginia into the Union, after her citizens had 404^08 (see also Stephens, Constitu- tional View of the War between the States, vol. ii, p. 389), proves conclu- sively that after the movement was under way, the people of the South went faster than their leaders wished. Jefferson Davis urged them to go more slowly, and said in private conference and by letters and telegrams that he was " opposed to secession as long as the hope of a peaceful remedy re- mained" (Letter of 0. K. Singleton, quoted by Davis, Kise and Fall of the Confederate Government, vol. i, p. 58 ; see also ibid., pp. 201, 227 ; Lifeof Davis, by his wife, vol. i, p. 697) . Even Toombs was accused by his constituents of brandishing a tin sword (see citations by Rhodes, ibid., vol. iii, p. 213). The evidence cited in note 24, supra, as well as all the contemporary reports, prove that, had the Crittenden com- promise been adopted, secession would have been abandoned. On the other hand, the addresses to their constitu- ents by the delegations at Washing- ton show that the movement was directed by the Southern members of Congress. And the whole order of procedure, with its dramatic situa- tions, threats by word and action, accompanied by offers of mediation by Virginia and Kentucky, in imita- tion of former precedents; and the measures adopted by the seceding States, even after the adoption of the permanent Constitution of the Con- federacy, to make no change in the existing order and create no obstacles to a return to the Union, show that the object of the proceedings was to scare the North into further conces- sions, not to tear the United States apart. 6' McPherson, History of the Ke- bellion, pp. 3-8. 68 The first capital was Montgomery, Ala. See Davis, Kise and Fall of the Confederate Government, vol. i, pp. 339, 648. 180 HISTORY OP SECESSION. [CHAP. n. expressed their wish, through a convention, and the form of ob- taining the consent of the mother State had been transacted by the vote of a so-called Virginia Legislature, chosen under the control of the Union army by a minority of the whole, few if any of whom claimed to represent constituencies out of the new State, and in no manner representing the wishes of Virginia. This was, in fact, a revolutionary proceeding, justified only by the exigency of the situation.^^ The South had relied upon the common interests of the border slave States for protection against invasion by their neutrality, if not alliance. But, ground as they were between the upper and the nether millstone, all except Virginia refused to incur martyr- dom for the sake of slavery, and, after some hesitation, sided with the North. Kentucky at first attempted to remain neutral, and her house of representatives so voted in May, 1861.®*' On April 15th, the gover- nor, Magoffin, whose sympathies were with the South, and who had previously recommended a convention of the border States at Baltimore,^^ replied to the call for soldiers : " In answer, I say emphatically, Kentucky will furnish no troops for the wicked purpose of subduing her sister Southern States." ^^ President Lincoln, with his usual tact, at first respected this neutrality, without acknowledging its legality ; and sent no new ^^ Upon the vote for the admission the best means of preserving the of the new State, Thaddeus Stevens natural peace and securing the laws, said: " We know that it is not constl- liberty, and property of the citizens tutional, but it is necessary " (Davis, of the State ; therefore, Resolved, by Else and Pall of the Confederate Gov- the House of Eepresentatives, That ernment, vol. ii, pp. 304-308). The this State and the citizens thereof, best history of these proceedings is by should take no part in the Civil War Kieolay and Hay (Lincoln, vol. iv, pp. now being waged, except as mediatore 327-340; vol. vi, pp. 297-313). They or friends of the belligerent parties; will be described in more detail in the and that Kentucky should during the chapter on the admission of new contest occupy a position of strict States. neutrality" (Shaler's Kentucky, p. so In May, 1861, the lower house 243). of the Kentucky Legislature adopted n Stephens, Constitutional View of the following resolutions: "Consid- the War between the States, vol. ii, ?• ering the deplorable condition of the 364. country, for which Kentucky is in 62 McPherson, History of the Be- no way responsible, and looking to bellion, p. 114. § 36.] ACTION OP KENTFCKY. 181 troops into the State, although he formed a recruiting camp of Kentucky Union soldiers at Camp Dick Robinson, Garrard County. Jefferson Davis offended the conservatives by the state- ment, in a letter to Governor Magoifin, " that the Government oi the Confederate States will continue to respect the neutrality of Kentucky so long as her people will maintain it themselves." ^ The first invasion of the State's soil, by troops from other States, was made by the Confederate forces under Polk and ZoUicofer, September 3d, 1861. Grant's army followed immediately from Ohio. On the 11th, the Legislature passed, over the Governor's veto, a resolution, — ' ' That Governor Magoffin be instructed to inform those concerned, that Kentucky expects the Confederate or Tennessee troops to be with- drawn from her soil unconditionally." A resolution requesting the Federal troops to withdraw was defeated, and, on the 18th, the Legislature resolved, over the governor's veto, that the Kentucky troops should expel the Con- federate invaders.^ Thereafter, Kentucky co-operated with the other loyal States, although many Kentuckians joined the Southern army. A majority of the population seem to have been always loyal, but those who sympathized with the South were allowed not too much liberty to vote.®^ A so-called " Sovereignty Convention " of persons claiming to represent sixty-five counties of the State, either self-appointed or chosen by Kentuckians in the Confederate army, met for three days, in November, 1861, with- out any authority from the Legislature ; and, on the 20th, passed an ordinance of secession, and elected State officers.^® The Con- federacy went through the form of admitting the State into their league; and representatives and senators from Kentucky, chosen by Kentucky soldiers in the Confederate army, sat in the Con- federate Congress.^'^ Once for a few hours the Confederate troops occupied the capital of the State and attempted to perform the ceremonial of the induction of their State government into pos- es Shaler's Kentucky, pp. 235-247. 66 ghaler's Kentucky, pp. 320, 334- See Davis, Rise and Fall of the Con- 336, 348. federate Government, vol. i, pp. 385- ^^ ibid., p. 270. MoPherson, His- 402. of the Eebellion, p. 8. 6^ Shaler's Kentucky, pp. 248, 250- ^7 Davis, Bise and Fall of the Con- 253. federate Government, vol. i, p. 303. 182 HISTOEY OP SECESSION. [CHAP. II. session ; but in the midst of their governor's speech he was driven from the city by an attack of the Union troops.^^ Meanwhile, the State remained in the Union, and was regularly represented in the Congress and Electoral College of the United States without any intermission. Missouri, as has been shown above, had prepared for neutrahty six years before.^^ The Legislature, January 21st, 1861, passed an act for the election of a convention "to consider the relations between the government of the United States " " and the govern- ment and people of the State of Missouri; and to adopt such measures for vindicating the sovereignty of the State, and the pro- tection of its institutions, as shall appear to them to be de- manded ; " but it was expressly provided that " no act, ordinance, or resolution of said convention shall be deemed to be vahd to change or dissolve the political relations of this State to the gov- ernment of the United States, or any other State, until a majority of the qualified voters of tliis State, voting upon the question, shall ratify the same." ™ In the election of delegates, on Febru- ary 18th, the people, by a majority of eighty thousand, determined against secession, and not a single secessionist was chosen."^ The convention resolved, in March, by a vote of eighty-nine to one, that there was " no adequate cause to impel Missouri to dis- solve her connection with the Federal Union." ^^ . They also ap- pointed delegates to the proposed convention of the border States, as well as to the Peace Conference.'^^ Subsequently, under authority claimed from State militia-laws, some of which were passed for the occasion, the governor attempted to oppose the army of the United States, and left the State to seek aid from the Confederacy.^* In the meantime he had replied to Lincoln's call for troops: "Your requisition is illegal, unconstitutional, revo- lutionary, inhuman, diabolical, and cannot be complied with."'' The convention reassembled in July, declared his office vacant, appointed a new governor in liis place, abrogated the laws under 08 Shaler's Kentucky, pp. 269-272. 74 Stephens, Constitutional View of 89 Supra, note 9. the War between the States, vol. ii, '" Carr's Missouri, p. 278. p. 364. " Ibid., p. 284. 76 McPherson, History of the Ee- '2 Ibid., p. 289. bellion, p. 115. " Ibid., p. 318. See Harper's Maga- zine for 1861, p. 547. § 36.] ACTION OP BIAEYLAND. 183 whicli he claimed to act, and continued to exercise supreme con- trol at intervals, until June, 1863, when they dissolved, after the adoption of an ordinance for gradual emancipation.^^ A rump of less than a quorum of the Legislature met in extra session at the summons of the deposed governor, October 21st, 1861, under the protection of the Confederate army, away from the capital of the State. They voted an ordinance of secession, which the Confed- erate government recognized as valid, and on November 28th the form of an admission of Missouri into the Confederacy was trans- acted.^^ Missouri was represented in the Congress and the Elec- toral College of the Union throughout the war. Delaware, which was bounded by the free States of Pennsyl- vania on the north and east and the slave State of Maryland on the west and south, remained loyal throughout. Under the plea that the State law did not vest liim with such authority. Governor Burton ordered no militia to aid in the invasion of the South, but recommended the formation of companies of volunteers to aid the President in the defence of Washington and the support of the Constitution and laws of the United States.^^ The loss of the slave State of Maryland, which separated the national capital from the free States, would have been irreparable to the North. Governor Hicks refused, in November, 1860, to call a special session of the Legislature at the request of a number of citizens of the State who desired to aid the South; and De- cember 19th, in answer to the commissioner from Mississippi, declined to assist in secession.™ At the same time he declared his purpose " to act in full concert with the other border States." '6 Poore's Charters and Constitu- State of the Confederacy, as well as to tions, pp. 1123-1136. the State he represents, we deem it '^ Nicolay and Hay, Lincoln, vol. iv, proper, and due to ourselves and the pp. 206-226. For the Confederate view people of Delaware, to express our of these proceedings, see Davis, Bise unqualified disapproval of the remedy and Fall of the Confederate Govern- for existing difficulties suggested by ment, vol. i, pp. 410-432. the Legislature of Mississippi " (Ste- '8 McPherson, History of the Be- phens, Constitutional View of the War bellion, p. 114. On Jan. 3, 1861, the between the States, vol. i, p. 370). legislature passed a resolution stating " McPherson, History of the Eebel- that, "having extended to the Hon. lion, p. 8. Stephens, Constitutional H. Dickinson, the Commissioner of View of the "War between the States, ■ Mississippi, the courtesy due him, as vol. ii, p. 368. the Representative of a Sovereign 184 HISTORY OF SECESSION. [CHAP. II. The State's representatives in the Peace Conference and Congress voted for the concessions demanded by the South; and in the meantime a political campaign for and against secession was in active progress through the State. On April 18th, 1861, the gov- ernor informed the people by a proclamation, "that no troops will be sent from Maryland, unless it may be for the defence of the capital." On April 19th, a mob attacked the Union troops on their march tlirough Baltimore. On the following day the com- mon council appropriated five hundred thousand dollars for the defence of the city ; and an informal understanding- was had with the Federal and railroad authorities, that no troops should be marched through the city if it were practicable to bring them to Washington by another route.^" The Legislature met April 26th, and on the following day passed a bill ratifying the Baltimore ordinance by a vote lacking only one of unanimity .^^ On April 29th, the legislature voted against secession; in one house unan- imously, in the other by a majority of more than three-fourths.^^ May 14th, they passed resolutions ' ' to register this her solemn protest against the war which the Federal government has declared upon the Confederate States of the South, and our sister and neighbor Virginia, and to announce her resolute determination to have no part or lot directly or indirectly in its prosecution." ' ' That the State of Maryland desires the peaceful and immediate recognition of the independence of the Confederate States, and hereby gives her cordial consent thereto as a member of the Union, entertain- ing the profound conviction that the willing return of the Southern people to their former federal relations is a thing beyond hope, and the attempt to coerce them will only add slaughter and hate to impossi- bility ; " and ' ' That under existing circumstances it is inexpedient to call a sovereign convention of the State at this time or to take any measures for the immediate organization of the militia." The resolutions also protested against the military occupation of the State as " a flagrant violation of the Constitution." ^ 8° Davis, Else and Fall of the Con- 82 MoPherson, History of the Be- federate Government, vol. i, pp. 331, bellion, pp. 8, 9. 332; Butler's Book, p. 181. 83 McPherson, History of the Be- 81 McPherson, History of the Ee- bellion, p. 397. bellion, p. 396. § 36.J ACTION OF MARYLAiTO. 185 During tlie discussion of these resolutions, General B. F. Butler took military possession of Baltimore on May 13tli.^ In the same month, an attempt was made to pass a bill to appoint a Board of Public Safety, with authority to spend two million dollars in the defence of the State against the Federal army. This, however, was finally defeated.® On June 10th, the Legis- lature instructed the representatives of the State in Congress "to urge and vote for a speedy recognition of the Independence of the Government of the Confederate States of America." ^ When the Legislature reassembled in September, its adoption of an ordi- nance of secession was prevented by the arrest of nineteen mem- bers under the order of the Secretary of War; and by military force the State was retained in the Union with regular representation in Congress and the Electoral College, while the South sought consolation in the song of " Maryland, my Maryland." ^'^ The trial of the wager of battle lasted more than five years.^^ The dispute as to the construction of the Constitution was too mighty to be decided in a court of justice. The South had ap- pealed to the final argument. In imitation of the Gallic Brennus, she had thrown her sword into the scale. To her sur- prise, the North, less timid than the Romans, followed her ex- ample, and the weapon of the latter proved the heavier. The result determined the character of the Constitution for all time, and compelled the conquered to consent to amendments which eradicated the evil that had been the cause of the fraternal dis- cord. No amendment which disclaimed the right of secession was written into the great charter. Pen and paper were not needed to express what had been stamped upon it by blood and iron.^^ 8* Butler's Book, pp. 228-231. vol. iv, pp. 167, 168). The subject of 86 McPherson, History of the Ke- military arrests is discussed later, bellion, pp. 9, 398. '* The war closed August 20, 1866. 88 Ibid., p. 398. See proclamation of President John- s' Ibid., pp. 152, 153. Message of son of that date; TJ. S. i). Anderson, 9 Governor Hicks, Dec. 3, 1861, quoted Wallace, 56, 70; The Protector, 12 by Davis, Else and Fall of the Con- Wall., 600; Adgers v. Alson, 15 Wall., federate Government, vol. i, p. 336; 560; Burke u. Miltenberger, 19 Wall., Rhodes, History of the United States, 519, 525. vol. iii, pp. 553, 554. Lincoln had re- 89 a. few State Constitutions adopted fused to authorize such a proceeding after the outbreak of the Civil War in April (Nioolay and Hay, Lincoln, expressly repudiate the right of seces- 186 CONSTITXJTIONAi HISTOEY OF CONFEDEEACY. [CHAP. n. § 37. Constitutional History of the Southern Confederacy. Slavery was the corner-stone ^ of the Confederate Constitution, but the doctrine of State rights lay also at its foundation, and the latter was more dangerous to its advocates than its opponents. § 37. 1 This was frankly admitted by the Vice-President of the Confed- eracy, Alexander H. Stephens, in his speech of March 21, 1861, where he said: " Many governments have been founded upon the principle of the subordination and serfdom of certain classes of the same race ; such were, and are in violation of the laws of nature. Our system commits no such violation of nature's laws. With us, all of the white race, however high or low, rich or poor, are equal in the eye of the law. Not so with the Negro. Subordination is his place. He, by nature, or by the curse against Ca- naan, is fitted for that condition which he occupies in our system. The ar- chitect, in the construction of build- ings, lays the foundation with the proper material — the granite; then comes the brick or the marble. The substratum of our society is made of the material fitted by nature for it, and by experience we know that it is best, not only for the Superior, but for the Inferior race, that it should be so. It is, indeed, in conformity with the ordinance of the Creator. It is not for us to inquire into the wisdom of his ordinances, or to question them. For his own purposes, he has made one race to differ from another, as he has made ' one star to differ from an- other star in glory.' The great ob- jects of humanity are best attained when there is conformity to his laws and decrees in the formation of gov- ernments as well as in all things else. Our Confederacy is founded upon principles in strict conformity with these laws. This stone which was rejected by the first builders, 'is be- come the chief of the corner' — the real ' comer-stone ' — in our new edi- fice" (Stephens, Constitutional View of the "War between the States, vol. ii, pp. 86, 521). In the case of John- son V. Tomkins, 1 Baldwin, 271; S. C. Fed. Cases, No. 7416, Mr. Justice Baldwin of the Supreme Court had said of the United States : " The foun- dations of this Government are laid, and rest on the rights of property in slaves, and the whole fabric must fall by disturbing the corner-stone." Jef- ferson Davis, after the war, repudi- ated this metaphor (Davis, Else and Fall of the Confederate Government, vol. i, p. 261). sion. In Alabama, Art. I, Sec. 35, reads: "The people of this State ac- cept as final the established fact that from the Federal Union there can be no secession of any State.'' In South Carolina, Art. I, Sec. 5 : " This State shall ever remain a mem- ber of the American Union, and all attempts, from whatever source, or upon whatever pretext, to dissolve the said Union, shall be resisted with the whole power of the State." In North Carolina, Art. I, Sec. 4 : "That this State shall ever remain a member of the American Union; that the people thereof aire a part of the American nation; that there is no right on the part of the State to secede, and that all attempts, from whatever source or upon what- §37.] PEOVISIONAi COKFEDEEATB CONSTITUTION. 187 On February 4tli, 1861, a congress of delegates appointed by the conventions of the seceded States of South Carolina, Georgia, Florida, Alabama, Mississippi and Louisiana, met at Montgomery, Alabama. They prepared and adopted, on February 8th, the " Con- stitution for the Provisional Government of the Confederate States of America." This vested all legislative powers therein " dele- gated" "in the Congress now assembled, until otherwise or- ever pretext, to dissolve said Union, or to sever said Nation, ought to be re- sisted with the 'whole power of the State." And Art. I, Sec. 5: "That every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and that no law or ordinance of the State in contravention or subversion thereof can have any binding force." In Mississippi, Art. 1, Sec. 7 : " The right to withdraw from the Federal Union on account of any real or sup- posed grievance, shall never be os- 8um6d by this State, nor shall any law be passed in derogation of the para- mount allegiance of the citizens of this State to the government of the United States." In Virginia, Art. I, Sec. 2: "That this State shall ever remain a member of the United States of America, and that the people thereof are a part of the American nation, and that all at- tempts, from whatever source or upon whatever pretext, to dissolve said union or to sever said nation are un- authorized, and ought to be resisted with the whole power of the State." Art. I, Sec. 3: "That the Constitu- tion of the United States and the laws of Congress passed in pursuance there- of, constitute the supreme law of the land, to which paramount allegiance and obedience are due from every citi- zen, anything in the Constitution, ordinances or laws of any State to the contrary notwithstanding. " In West Virginia, Art. I, Sec. 1 : "The State of West Virginia is, and shall remain, one of the United States of America. The Constitution of the United States of America, and the laws and treaties made in pursuance thereof, shall be the supreme law of the land." In Texas, Art. I, Sec. 1 : "Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preserva- tion of the right of local self-govern- ment unimpaired to all the States." In Missouri, Art. II, Sec. 3 : "That Missouri is a free and independent State, subject only to the Constitution of the United States; and as the pre- servation of the States and the main- tenance of their governments are nec- essary to an indestructible Union, and were intended to coexist with it, the Legislature is not authorized to adopt, nor will the people of this State ever assent to, any amendment or change of the Constitution of the United States which will in anywise impair the right of local self-government be- longing to the people of this State." In California, Art. I, Sec. 3 : "The State of California is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land." In North Dakota, Art. I, Sec. 3 : " The State of North Dakota is an in- separable part of the American Union, 188 CONSTITTJTIOKAL HISTORY OF CONFEDERACY. [CKAP. XL. dained.''^ Vacancies in the representation of any State were filled in such manner as the proper authorities of the State directed.^ It said : " Until the inauguration of the President, all bills, orders, resolutions and votes adopted by the Congress shall be of full force without approval by him." * After the inaugura- tion of the President, he had the same veto power as the Presi- dent of the United States ; except that he was authorized to veto separate items in appropriation bills.^ Congress had the power of taxation " for the revenue necessary to pay the debts and carry on the Government of the Confederacy."^ In other respects, the Provisional Congress had the same powers as the Congress of the United States, excepting legislation over the ter- ritories and any ceded district, none of which then existed in the Confederacy, and the appropriation of money from the treasury, " unless it be asked and estimated for by the President or some one of the heads of departments, except for the purpose of paying its own expenses and contingencies." '' Express powers were also given to admit other States, and to exercise executive powers until the President was inaugurated.^ The importation of African ne- groes, from any foreign country other than the slave-holding States of the United States, was forbidden ; and the Congress had power to enforce this provision by legislation, and "to prohibit the introduction of slaves from any State not a member of the Con- 2 Provisional Constitution of the * Ibid., Art. I, Sec. 2. Confederacy, Art. I, Sec. 1 ; Davis, « Ibid., Art. I, Sec. 5. See mfra, Rise and Fall of the Confederate Gov- over notes 33, 34. ernment, vol. i, p. 640. " Ibid., Art. I, Sec. 6. 8 Provisional Constitution, Art. I, ' Ibid., Art. I, Sec. 7. Sec. 2. s Ibid., Art. I, Sec. 6. and the Constitution of the United Constitution of the United States is States is the supreme law of the land." the supreme law of the land." In Idaho, Art. I, Sec. 3: "The , Art. XIX, Sec. 1: "The following State of Idaho is an inseparable part article shall be irrevocable without of the Union, and the Constitution of the consent of the United States and the United States is the supreme law the people of this State : of the land." "The State of Wyoming is an in- In Wyoming, Art. I, Sec. 37 : "The separable part of the Federal Union, State of Wyoming is an inseparable and the Constitution of the United part of the Federal Union, and the States is the supreme law of the land." See infra, § 38. § 37.] PBO VISIONAL CONFEDERATE CONSTITUTION. 189 federacy." ^ The President and Vice-President were elected by Congress, Yoting by States. Each was to hold of&ce for one year, or until a permanent government should be established.^" The compensation of the President was fixed at twenty-five thou- sand dollars a year. The judicial power was vested in a Supreme Court, and, until otherwise provided by Congress, a District Court in each State, the latter court with " the jurisdiction vested by the laws of the United States, as far as applicable, in both the District and Circuit Court of the United States for that State." " It pro- vided : that " The Supreme Court shall be constituted of all the district judges, a majority of whom shall be a quorum, and shall sit at such times and places as the Congress shall appoint." ^^ " The Congress shall have power to make laws for the transfer of any causes which were pending in the courts of the United States to the courts of the Confederacy, and for the execution of the orders, decrees and judgments heretofore rendered by the said courts of the United States; and also all laws which may be requisite to protect the parties to all such suits, orders, judgments or decrees, their heirs, personal representatives, or assigns." ^^ This Consti- tution could be amended by the vote of two-thirds of Congress.^* It directed: that " The Government hereby instituted shall take immediate steps for the settlement of all matters between the States forming it and their late confederates of the United States, in relation to the public property and public debt at the time of their withdrawal from them ; these States hereby declaring it to be their wish and earnest desire to adjust everything pertaining to the common property, common liberty and common obligations of that union upon the principles of right, justice, equity and good faith." ^^ Until otherwise provided by Congress, the seat of government was fixed at Montgomery, Alabama. ^^ The Constitution was to continue in force one year from the inauguration of the President, or until a permanent constitution or confederation between the States should be put in operation.^^ In other respects, the instrument was a 9 Ibid., Art. II, Sec. 7. The object 12 Ibid., Art. Ill, Sec. 1. of this and the corresponding clause is ibid., Art. Ill, Sec. 1. in the permanent constitution was to 1* Ibid., Art. V. coerce the border slave States. 1^ Ibid., Art. VI. 10 Ibid., Art. II, Sec. 1. i^ ibid., Art. VII. 11 Ibid., Art. Ill, Sec. 1. " Ibid., Preamble. 190 CONSTITUTIONAL HISTOEY OF CONFEDBEACr. [OHAP. II. substantial copy of the Constitution of the United States. At that time, nearly all expected a speedy return to the original Union, and for that reason the paper was hastily drawn, with the object of making the least practicable disturbance with the exist- ing order, except so far as was necessary to maintain consistency with the theory under which the proceeding was justified. The first act of the Provisional Congress was passed February 9th, 1861 : " That all the laws of the United States of America, in force and in use in the Confederate States of America on the first day of November last, and not inconsistent with the Constitution of the Confederate States, be and the same are hereby continued in force until altered or repealed by the Congress." ^^ The next act, passed February 14th, continued in office, until April 1st, all offi- cers connected with the collection of customs, and the assistant treasurers entrusted with the keeping of the money thus collected, who were engaged in the performance of such duties within one of the Confederate States, with the same powers and functions which they had exercised under the Government of the United States.^^ On February 9th, Jefferson Davis, of Mississippi, was elected President, and Alexander H. Stephens, of Georgia, Vice- President, of the Confederacy.^" On the 15th, Congress passed a resolution declaring " that it is the sense of this Congress that a commission of three persons be appointed by the President-elect, as early as may be convenient after his inauguration, and sent to the Government of the United States of America, for the purpose of negotiating friendly relations between that government and the Confederate States of America, and for the settlement of all ques- tions of disagreement between the two governments upon princi- ples of right, justice, equity and good faith." ^i February 25th, an act was passed " to declare and establish the free navigation of the Mississippi River," which prevented any interference with the passage of Northern as well as Southern vessels upon that stream;^ and, on February 26th, the Congress repealed all laws of the 18 statutes at Large, Provisional federate Government, vol. i, p- 280. Government, Confederate States of 21 Statutes at Large, Provisional America, p. 27. Government, Confederate States of 19 Ibid., pp. 27-28. America, p. 292. 20 Davis, Else and Fall of the Con- 22 Ibid., pp. 36-38. § 37.] PEOVISIONAl, CONFBDEEATE CONSTITXITION. 191 United States whicli reqtiired the enrollment or licensing of coast- ing vessels, and imposed discriminating duties upon foreign ves- sels or goods imported ia them.^^ Thus, there was no interrup- tion of the existing business relations with the United States, and means were taken to prevent friction on the restoration of the Union. The permanent Confederate Constitution was adopted March 11th, after the North had refused to accede to the amendments to the Federal Constitution which the South demanded. Even then, when the more sagacious of them at least must have foreseen the danger of a war ^ which would necessitate unity and strength in the central government where the command of their armies was reposed, the Southern statesmen did not recede from the theo- ries which they and, their predecessors had advocated for the gov- ernment of the United States since the time of Jefferson. They did not realize that those checks upon the power of the central government, which seemed necessary for the protection of a domestic institution maintained in their own States, and regarded at first with suspicion and subsequently with undisguised hostility by other States of a common Union, were not needed in and must be injurious to the welfare of the new Confederacy in which all alike had a common interest in its preservation. The permanent constitution of the Confederacy was avowedly modelled upon the Constitution of the United States, with a few cor- rections which seemed likely to secure economy and prevent waste of the public revenues. All other changes were designed to secure the interests of slaveholders and establish those theories of State rights for which they had so long contended. The twelve amendments were incorporated into the main body of the instrument, and the style of the new government through- out was " The Confederate States." The Preamble read : — ' ' We the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent Federal Government, establish justice, insure domestic tranquillity and 28 Ibid., p. 38. vention, in which he foretold thatde- 24 A prophetic speech in the Gas- feat would be followed by "universal Sandra vein was made by Alexander emancipation" (McPherson, History H. Stephens before the Georgia Con- of the Bebellion, p. 25). 192 CONSTITUTIONAL HISTORY OF CONPEDEEACT. [CHAP. n. secure the blessings of liberty to ourselves and our posterity, invoking the favor and guidance of Almighty God, do ordain and establish this Constitution for the Confederate States of America." The legislative powers vested in Congress were " delegated," in- stead of "granted." 2^ The custom, in the "Western States, of allowing immigrants to vote before they had been naturahzed, which was criticized in the South Carolina declaration of inde- pendence, was prevented by the provision that the electors of members of the House of Representatives must be citizens of the Confederate States, and that " No person of foreign birth, not a citizen of the Confederate States, shall be allowed to vote for any officer, civil or political. State or Federal."^ It directed that senators should be chosen by the legislatures of the several States "at the regular session next immediately preceding the com- mencement of the term of service ; " and Congress had no power to regulate " the times and places of choosing senators." ^^ In addition to the former provisions for impeachments, it pro- vided, " That any judicial or other federal officer, resident and acting solely within the limits of any State, may be impeached by a vote of two-thirds of both branches of the legislature thereof." Congress had the power by law to " grant to the principal officer in each of the executive departments a seat upon the floor of either house, with the privilege of discussing any measures appertaining to his department." ^^ The necessary legislation to put this pro- vision into effect was never adopted,^^ but the practice prevailed in the provisional Congress.^^ The President was elected for a term of six years and was not re-eligible.2i No person was eligible who was not " a natural born 25 Confederate Constitution, Art. I, p. 358). The point will be discussed Sec. 1. subsequently. 26 Ibid., Art. I, Sec. 2. so Wilson, Division and Reunion, p. 27 Ibid., Art. I, Sec. 4. 244. 28 Ibid., Art. I, Sec. 6. si Confederate Constitution, Art. 29 Davis, Rise and Fall of the Con- II. This article was largely the work federate Government, vol. i, p. 260. of R. Barnwell Ehett of South Caro- He was of the opinion that the prac- Una, the Chairman of the Committee tioe would have been beneficial. The upon the formation of this Constitu- provision was the work of Alexander tion. Most of the other changes from H. Stephens (Constitutional View of the text of the Federal Constitution the War between the States, vol. ii, were suggested by him, except those §37.] PEEMAJSTENT COISTFEDEEATE CONSTITUTION. 193 citizen of the Confederate States, or a citizen thereof at the time of the adoption of this Constitution, or a citizen thereof born in the United States prior to the 20th of December, 1860," the date of the secession of South Carolina, and "who shall not have attained the age of thirty-j&ve years, and been fourteen years, a resident within the limits of the Confederate States, as they may exist at the time of his election." ^ The amount of his salary was not fixed as in the provisional Constitution. He had the power to veto any item in an appropriation bill.^ This provision, which was also in the provisional constitution, was first adopted by the Confederacy, and has since been copied into the constitu- tions of nearly one-half the States in the Union.^ The disputed question under the Federal Constitution as to the power of re- moval from office was settled by the provisions : — "The principal officer in each of the executive departments, and all persons connected with the diplomatic service, may be removed from office at the pleasure of the President. AU other civU. officers of the executive department may be removed at any time by the President or other appointing power when their services are unnecessary, or for dishonesty, incapacity, inefficiency, » misconduct, or neglect of duty; and, when so removed, the removal shaU be reported to the Senate, together with the reasons therefor." "° The frequent evasions of that part of the Constitution which requires the consent of the Senate to certain appointments to office were prevented by the clause, " No person rejected by the Senate shall be reappointed to the same office during their ensuing recess." ^ The Confederate Congress had in general the same powers as the Congress of the United States, but the latitudinarian construc- tion, under which appropriations for internal improvements and protective tariffs had been passed, was prevented by the provision the authorship of which is stated in 85 lUd., Art. II, Sec. 2 ; this sub- subsequent notes (Stephens, Constitu- jeot will be discussed subsequently in tional View of the War between the the chapter on the Executive Power; States, vol. ii, p. 358). '" Ibid., Art. II, Sec. 2 ; this sub- 82 Ibid., Art. II, Sec. 1. ject will also be discussed subse- 83 Ibid., Art. I, Sec. 7. quently. 8* The effect of such a provision will be discussed subsequently. 194 CONSTITUTIONAL HISTORY OP CONPEDEEACY. [CHAP. U. that tlie power of taxation' should be limited "for revenue neces- sary to pay the debts, proyide for the common defense, and carry on the government of the Confederate States; but no bounties shall be granted from the treasury ; nor shall any duties or taxes on importations from foreign nations be laid to promote or foster any branch of industry ; " and after the delegation of the power to regulate commerce, it was said : " but neither this, nor any other clause contained in the Constitution, shall ever be construed to delegate the power to Congress to appropriate money for any internal improvement intended to facilitate commerce ; except for the purpose of furnishing lights, beacons and buoys and other aid to navigation upon the coasts, and the improvement of harbors and the removing of obstructions in river navigation, in all which cases such duties shall be laid on the navigation facilitated there- by, as may be necessary to pay the costs and expenses thereof." ^ The power over naturalization was "to establish uniform laws" instead of " a uniform rule of naturalization " ■,^ and the power to pass bankrupt laws was limited so that " no law of Congress shall discharge any debt contracted before the passage of the same.^ Taxes on exports were permitted by a vote of two-thirds of both houses, so that in an exigency money could be raised by a tax on exported cotton. No appropriation " not asked and estimated for by some one of the heads of departments, and submitted to Congress by the President," could be made except by the vote of two-thirds of both houses of Congress, unless for the purpose of paying the expenses and contingencies of Congress, or for the pay- ment of claims against the Confederate States, the justice of which had been judicially declared by a tribunal for the investigation of claims which it was made the duty of Congress to establish. It was provided that " all bills appropriating money shall specify in 8T Confederate Constitution, Art. I, ss ibid., Art. I, Sec. 8. The acute Sec. 8. Most of these provisions were and learned author of The Eepublicof suggested by Khett. Kobert Toombs Kepublios has criticised this as an of Georgia, however, was the author unnecessary abandonment by the of the prohibitions upon bounties, ex- framers of the Confederate Constitu- tra allowances and internal improve- tion of one of the arguments in favor ments (Stephens, Constitutional View of the right of secession (Wh ed., pp. of the War between the States, vol. ii, 398, 399). P- 333). 39 Ibid., Art. I, Sec. 8. § 37.] PERMANENT CONFEDERATE CONSTITUTION. 195 Federal currency, the exact amount of each appropriation, and the purposes for which it is made ; and Congress shall grant no extra compensation to any public contractor, officer, agent, or servant, after such contract shall have been made or such service ren- dered;" *" and that every law or resolution having the force of law, must relate to but one subject, to be expressed in its title. States were permitted to lay duties " on tonnage " " on sea-going vessels, for the improvement of rivers and harbors navigated by the said ves- sels " : provided that such duties did not conflict with any treaties of the Confederate States with foreign nations ; and that any sur- plus revenue, after pajdng for the improvement, should be paid into the common Treasury.*^ States were also permitted to make compacts to improve the navigation of rivers which flowed through two or more of them.*^ The Confederate Courts had no jurisdiction, because parties were citizens of different States ; *^ and the provision for the re- turn of fugitives from justice was expressly limited to cases where the crime was committed against the laws of the State which demanded the return.** The main provisions, however, were the guarantees of slavery, which were thorough. The old circumlocutions were abandoned, and there was no squeamishness about calling a slave a slave. The Congress was expressly forbidden to pass any law denying or impairing the right of property in negro slaves.*^ Citizens of each State were secured " the right of transit and sojourn in any State of this Confederacy, with their slaves and other property ; and the right of property in said slaves shall not be impaired." The provision for the return of fugitive slaves was extended so as to cover those who might escape from Territories as well as States.*^ The importation of negroes from any foreign country other than the slave-holding States or Territories of the United States was expressly forbidden. Congress was directed to legislate for the enforcement of this prohibition ; and had the further power to pro- «> Confederate Constitution, Art. I, ^^ Ibid., Art. I, Sec. 9. Sec. 9. *^ Ibid. South Carolina and Florida *i Ibid., Art. I, Sec. 10. were opposed to ttiese prohibitions. 42 n,i(j. (National Intelligencer, March 28th, «3 Ibid., Art. Ill, Sec. 2. 1861, cited by Bhodes, vol. iii, p. « Ibid., Art. IV, Sec. 2. 322.) 196 CONSTITUTIONAL HISTORY OF CONFEDERACY. [CHAP. n. hibit the introduction of a slave from any State " not a member of, or any Territory not belonging to, this Confederacy." *'^ New States could be admitted only by a vote of two-thirds of each house, the Senate voting by States.^^ Express power was granted for the acquisition of new territory ; and the power was delegated to Congress to legislate and provide governments for the inhabitants of all territory belonging to the Confederate States, lying without the limits of the several States ; and to permit them, at such time and in such manner as should be provided by law, to form States to be admitted into the Confederacy. "In all such territory, the ' institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected by Congress, and by the territorial government; and the inhabitants of the several Con- federate States and Territories shall have the right to take to such Territory any slaves lawfully held by them in any of the States or Territories of the Confederate States." Any three States, acting through their conventions, had the right to a convention of all the States summoned by Congress, to take into consideration such amendments as they suggested; and any proposed amendments agreed on by such convention, voting by States, and ratified by the legislatures or conventions of two-thirds of the several States, were to become thenceforth a part of the Constitution. But no State could, without its consent, be deprived of its equal " repre- sentation " in the Senate.*^ The government established by the Constitution was declared the successor of the Provisional Got- ernment. All laws passed by the latter were continued in force until repealed or modified ; and all officers appointed by the same remained in olfice until their successors were appointed and quali- fied, or the offices abolished.^" The Constitution was to be in force upon its ratification by the conventions of five States ; but until the election and meeting of the new Congress, the Provisional Congress were authorized to " continue to exercise the legislative power granted them, not extending beyond the time limited by the Constitution of the Provisional Government." ^^ ^' Confederate Constitution, Art. I, View of the War between the Sec. 8. See supra, note 9. vol. ii, p. 338). 48 Ibid., Art. IV, Sec. 3. This clause ^9 Ibid., Art. Ill, Sec. 3. was drawn by John Perkins, Jr., of 6o Ibid., Art. VI. Louisiana (Stephens, Constitutional " lu^,^ Art. VII. § 37.] PERMANENT CONrEDBRATB CONSTITUTION. 197 The Confederate Constitution was ratified in most States by the same Conventions which had passed the ordinances of secession. In Georgia, the convention defeated a proposition to submit it to tlie people. In Tennessee, it was submitted to the people and approved after it had been ratified by the Legislature.^^ Vir- ginia and Tennessee, through commissioners appointed in the former State by her convention, in the latter by her legislature, entered into what was termed in Virginia a convention and in Tennessee a military league, by which their respective military forces, arms and supplies, were placed under the direction of the President of the Confederacy until an ordinance of secession and a ratification of the Confederate Constitution could be adopted. A similar transaction took place between the commissioners ap- pointed by the rump legislature of Missouri and the Confederate Government.^ The first act to provide for the defense of the Confederacy was that of the Provisional Congress, February 28th, 1861, in which it was provided — "That the President be further authorized to receive into the services of this government such forces now in the service of such States as may be tendered or who may be volunteered by the consent of their State, in such numbers as he may require, for any time not less than twelve months, unless sooner discharged." ^* On March 6th, 1861, a law was passed to establish and organize a permanent army of the Confederacy, as distinct from the provisional army for which provision was made in the last-named statute. The number to be raised was nine thousand four hundred and twenty. Officers who left the army of the United States received the same relative rank in the Confederate army which they had held in the former.^ 52 MoPherson, Histoiy of the Ke- Fall of the Confederate Government, bellion, pp. 1-5. Davis said that it vol. i, p. 299) said that these prooeed- was submitted to and ratified by the ings were constitutional before the se- people of the respective States (Bise cession of these States under Article I, and Fall of the Confederate Govern- Section 10 of the Federal Constitution, ment, vol. i, p. 258). But he evidently because they were ' ' in such imminent considered the action of these con- danger " as would not admit of delay, ventions the action of the people. ^4 Davis, Else and Fall of the Con- 58 MoPherson, History of the Ke- federate Government, vol. i, p. 304. bellion, pp. 5, 8, 11. Davis (Else and «= Ibid., pp. 306, 307. 198 CONSTITUTIONAL HISTOEY OP CONFEDERACY. [CHAP. n. The -weakness in time of. war of a constitution full of guaranties of personal liberty and checks upon the powers of the government is manifest in the history of the Confederacy. The constitutional obstructions to direct taxation made it almost impossible to collect the funds necessary for military operations, except by borrowing through the negotiation of bonds and the issue of a paper currency.®^ The passage of a legal-tender law was pre- vented by constitutional objections in the minds of the President and Congress.^^ The governor of Georgia vetoed a bill to make State taxes payable in Confederate currency, amongst other rea- sons, because he thought it violated the constitutional prohibition against making anything but gold or silver a legal tender.^^ Other governors assisted the Confederacy by approving bills which made a tender of Confederate and State bonds and the notes of State banks sufficient to stay executions ; ^^ and in Florida it was enacted that a refusal to accept Confederate currency should terminate an exemption from military service.^" A tax upon the circulation of Confederate currency, accompanied by provisions for funding the same, was subsequently passed by the Confederate Congress and M Davis, Else and Fall of the Con- notes became unavoidable." (Ibid., federate Government, vol. i, pp. 493- p. 496.) 496. " So long as there seemed to be " Within six months after the pas- a probability of being able to carry sage of the war-tax of August 19tli, out these provisions of the Constitu- 1861, the popular aversion to taxation tion fully, and in conformity with the by the general government had so in- intentions of its authors, there was an fluenced the legislation of the several obvious diffloulty in framing any States that only in South Carolina, Mis- system of taxation. A law which sissippi and Texas were taxes actually should exempt from the burden two- collected from the people. The quotas thirds of the property of the country from the remaining States had been would be as unfair to the owners of raised by the issue of bonds and State the remaining third as it would be in- treasury notes. The public debt of adequate to meet the requirements of the country was thus actually increased the public service. The urgency of instead of being diminished by the the need, however, was such that, taxation imposed by Congress." (Ibid,, after great embarrassment, the law of p. 495.) April 24th, 1863, above mentioned, 67 j. c. Schwab, The Finances ot the was framed. Still a large proportion Confederacy, a valuable monograph, of these sources was unavailable for Pol. Sc. Quar., vol. ii, pp. 43-50. some time, and the intervening ex- ss Dec. 15, 1863 ; ibid., p. 51. igencies permitting of no delay, a 69 ibid., p. 51. resort to further issues of treasury eo Florida Act of Dec. 3, 1863 ; ibid., p. 51. § 37.] TAXATION, IMPEESSMENT, AND SBQTJESTEATION. 199 justified under the tax power against constitutional objections.®^ Finally, against the protests of many leaders of the people,®^ they were obliged to resort to a practice to which Washington was driven during the revolution,®^ and an act was passed March 26th, 1863, which authorized the impressment of property of all kinds, • including slaves, needed for military operations, with certain ex- emptions, at arbitrary prices fixed by joint commissioners ap- pointed by the State and the Confederacy, or in certain cases by appraisers, upon payment in certificates of indebtedness.®* This practice was the cause of many desertions from their cause.®^ The Supreme Court of Georgia once issued an injunction against the impressment by the Confederate army of a hotel for use as a hospital.®® On August 6th, 1861, an act was passed " for the sequestra- tion of the estates, property and effects of alien enemies, and for the indemnity of citizens of the Confederate States, and persons aiding the same in the existing war against the United States." Under this, which was subsequently held by the courts of the United States to be void as an infringement of the Federal Con- stitution,®'' debts due to citizens of the free States, the border slave States being expressly excepted, and to all persons, irrespec- tive of their citizenship, who aided the United States, were confis- cated. Nearly two millions of dollars were collected from this source.®^ Obedience to the law was, however, refused by many under the claim that it was an infringement of the Confederate Constitution ; and the celebrated Petigru, whose position at the 61 Ibid., p. 50. See Davis, Eise and ^s Alexander H. Stephens' testl- Fall of the Confederate Government, mony before "the Joint Committee on vol. i, pp. 489-492. Eeconstruction (Report of that Corn- ea vice - President Alexander H. mittee, Part III, p. 165). Stephens protested against this prac- ^ "White v. Ivey, 34 Ga., 186. tice (Constitutional View of the "War «' Williams v. Bruffy, 96 U. S., 176; between the States, vol. ii, p. 570). S. C. 102 U. S., 248; Stevens v. Grif- 63 See the remarks of Governor Clin- fith. 111 TT. S. , 48. ton in the New York Convention of ^^ The amount collected up to Sept. ratification (Elliot's Debates, 2d ed., 30, 1863, was $1,862,550.27, as reported vol. ii, p. 360), and of Grayson in the by the Confederate Secretary of the Virginia Convention (ibid., vol. ill, p. Treasury (MePherson, History of the 290). Eebellion, pp. 203, 205). The law is 6* This is reprinted in Chase's De- reprinted in Chase's Decisions, p. 584. cisions, p. 597. 200 CONSTITUTIONAL HISTOKY OF CONFEDBKACY. [CHAP. II. bar of the South, was similar to that of Charles O'Conor in the North, led a vigorous opposition, in which he was finally OTer- ruled by the courts.^^ On the recommendation of Congress, the States ceded to the Confederacy all the land and other property of the United States within their jurisdictions. This included the sum of $536,000 in coin at the New Orleans mint and custom- house, for which the State of Louisiana received a vote of thanks.f" It was found necessary to regulate, if not restrain, the liberty of the press by an act passed in January, 1862, which forbade, under the penalty of a fine of one thousand dollars and one year's imprisonment, the publication of news concerning the number, disposition, movement, or distribution of the land or naval forces, or a description of vessels, battery, fortification, engine of war, or signal, unless first authorized by the President or Congress, or the secretary of war or navy, or commanding officer of post, district or expedition ; ''^ and in the same year to pass a bill to " regulate the destruction of property under military necessity." ^^ The Confederate Government was obliged to follow the exam- ple of the United States by a compulsory draft of soldiers made by the authorities at Richmond, under an act of the Confederate Congress.'^^ The conscription was vigorously opposed by the State authorities and high Confederate ofiicers, upon the ground that the Confederate Government had no such constitutional powers, and that drafts could only be made by the State authorities. The arguments for and against the right were similar to those used at the same time in the North.f* The subsequent conscription law, ' 88 An interesting report of his ar- February, 1864. Abstracts of these gument is to be found in MoPherson's are published in McPherson's History History of the Rebellion, pp. 205, 206. of the Eebellion, pp. 117-119. The For the decisions, see Eichmond Ex- first act is reprinted in Chase's De- aminer, Oct. 19 and Nov. 8, 1861 ; cisions, p. 579. Kiohmond Whig, Nov. 8, 1861 ; Sa- 7* See the very able argument In vannah Eepublioan, Deo. 21, 1861 ; the letter of Jefferson Davis in answer Charleston Courier, Oct. 25, 1861 ; cited to the constitutional objections of by Ehodes, History of the United Governor Joseph E.Brown, of Georgia, States, vol. iii. dated May 29, 1862, the style of which '» Ibid., vol. iii, p. 322. is so logical and temperate, and in " McPherson, History of the Ee- that respect so different from the bellion, p. 117. other writings of Jefferson Davis, as '2 Ibid., p. 117. to suggest the suspicion that it was '3 See act of April 16, 1862 ; act of the work of his attorney-general, that §3T.] STATE EIGHTS. 201 which annulled the statutory right to exemption from military service obtained by the purchase of substitutes, was likewise vig- orously attacked, but was supported by the decisions of the high- est courts of Virginia, North Carolina, Georgia, and AlabamaJ^ It was held, however, that the Confederate government had no power to draft any State officer, not even a policeman or a justice of the peace.'^^ The discharge by State courts of conscripts by writs of habeas corpus was commonJ^ It was held that a Con- federate soldier was not exempt from arrest on civil processJ^ Much friction was also caused by the objections of the militia to serve under officers of other States,^^ and at one time the gov- ernor of Mississippi refused to order them to leave the State.^" The doctrine of State rights was also a formidable obstruction to the military operations. It was said of Davis, by one well qualified to judge him, that he was a man of narrow views of con- stitutional construction. " A straw of construction across his path eminent lawyer, Judah P. Benjamin. It is reprinted in full in Davis, Rise and Fall of the Confederate Govern- ment, pp. 505-514. This measure was also vigorously opposed by Alexander H. Stephens, both on constitutional grounds and on those of expediency (Constitu- tutlonal View of the War between the States, vol. ii, pp. 570-574, 790, 791). This constitutional question is subse- quently discussed in the chapter on the war-powers of the United States. '5 Burroughs v. Peyton, 16 Grattan (Va.), 470; Gatlin v. Walton, 1 Win- ston (N. C), 333; Daly v. Harris, 33 Ga. Supp. 38 ; Ex parte McCants, 38 Ala., 107. This subject will be dis- cussed subsequently under the War- Power and Impairment of the Obliga- tion of Contracts. '6 Andrews v. Strong, 33 Ga. Supp., 166; Johnston v. Mallett, 2 Winston (N. C), 13; Burroughs v. Peyton, 16 Grattan (Va.), 470, 483. " Matter of Bryan, 1 Winston (N. C), 1; Matter of Guyer, 1 Winston (N. C), 66; Matter of Eitter, 1 Winston (N. C), 76; Matter of Hine, 1 Winston (N. C), 165; Matter of Boyden, 1 Winston (N. C), 175 ; Mat- ter of Curtis, 1 Winston (N. C), 180 ; Matter of Took, 1 Winston (N. C), 186; Matter of Prince, 1 Winston (N. C), 195; Matter of Hunter, 1 Winston (N. C), 447; Matter of Wy- rick, 1 Winston (N. C), 450; Matter of Bradshaw, 1 Winston (N. C), 454; Matter of Somers, 1 Winston (N. C), 459; Matter of Bussell, 1 Winston (N. C), 463; Matter of Cunningim, 1 Winston (N. C), 664; Johnston v. Mallett, 2 Winston (N. C), 13; Up- church V. Scott, 2 Winston (N. C), 137 ; Cobb v. Stallings, 34 Ga., 72 ; Ex parte Cain, 39 Ala. (N. S.), 440; Ex parte Graham, 13 Law and 12 Eq., Eich. (S. C), 277. '8 Ex pa/rte Harlan, 39 Ala., N. S., 563. '9 Davis, Eise and Fall of the Con- federate Government, vol. i, p. 544. 80 Cox, Three Decades of Federal Legislation, p. 312. 202 CONSTITUTIONAL HISTOBT OP CONPBDEEACY. [CHAP. n. ■would stop him from the most darling wish of his heart." ^i At the outset of the war he could probably have seized Washington had he not been unwilling to invade the soil of Virginia and Mary- land during their deliberations over secession.^^ He continually vetoed war measures because he thought them unconstitutional. But the State governors considered him a dangerous latitudinarian. Governor Vance formally threatened to call out the State mihtia to resist the unconstitutional acts of the Confederate government on North Carolina soil.^ A conference of State governors was planned in order to organize opposition to him.^ Once when General Lee's orders were obstructed by the attempts of local authorities in North Carolina to compel his observance of their quarantine regu- lations, he said that, although while the town was in existence he might perhaps be obliged to respect its quarantine, if there was further trouble he would, as an act of military necessity, be obliged to order all inhabitants to leave the place.^ The convention of Virginia, in July, 1861, passed an ordinance which provided that any citizen of the State, holding office under the Government of the United States after the first of July, 1861, with the exception of those holding office outside of the United States and Confederate States, upon whom it did not take effect until after July 1st, 1862, should be forever banished from the State; and that any citizen thereafter undertaking to represent the State in the Congress of the United States, should, in addition to ban- ishment, be liable to be punished by the confiscation of his prop- erty, and be guilty of treason.^ On August 14th, 1861, President Davis issued a proclamation requiring every male citizen of the United States, fourteen years of age, then within the Confederate States, who adhered to and acknowledged the authority of the United States, and was not a citizen of the Confederacy, to de- part from the Confederate States within forty days. The border slave States were excepted from this proclamation.^^ 81 Testimony of John B. Baldwin, 84 ibid. Speaker of the Virginia House of Dele- 86 This story was told the writer by gates, before the Joint Committee on a Confederate ofiSoer. Reconstruction, Part II, p. 107. 86 McPherson, History of the Be- 82 Ehodes, History of the United bellion, p. 8. States, vol. iii, pp. 374-381. 87 ibid., p. 121. 88 Cox, Three Decades of Federal Legislation, p. 312. § 37.] MAETIAL LAW. 203 In Davis' inaugural at the institution of their permanent con- stitution, February 22d, 1862, he said : — " Through all the necessities of an unequal struggle, there has been no act on our part to impair personal liberty or the freedom of speech, of thought, or of the press. The courts have been open, the judicial functions fully executed, and every right of the peaceful citizen main- tained as securely as if a war of invasion had not disturbed the land." =« Within five days he approved an act which authorized the sus- pension of the writ of habeas corpus. On March first he placed " Richmond under martial law, and passports were required from those who wished to enter or leave the Confederate capital until his government abandoned it.*^ Two later acts extended his powers in this respect,^" under which arbitrary arrests were made throughout the whole Confederacy. These statutes and proceedings were denounced as unconstitutional in the Congress, the State legislatures, and the courts, and created much opposition to the Confederacy, although the courts upheld them.^^ The Vice- President, Alexander H. Stephens, was their vigorous opponent.®^ When a Confederate general had appointed a civil governor of the city of Atlanta, he wrote to the latter : " Your office is un- known to the law. General Bragg had no more authority for appointing you civil governor of Atlanta than I had; and I had, or have, no more authority than any street-walker in your State. Under his appointment, therefore, you can rightfully ex- ercise no more power than if the appointment had been made 88 Ehodes, History of the United ity petitioned for release by the writ States, vol. iii, p. 601. of habeas corpus, in every case, save 89 Acts of First Confederate Con- one, the writ was granted, and it grass, p. 1 ; Khodes, ibid., p. 601. was decided that there could be no 9° Ibid., pp. 601-603. suspension of the writ or declaration 91 See McPherson, History of the of martial law by the executive or by Eebellion, pp. 121, 187,188,618,619. any other than the supreme legislative The Supreme Court of North Carolina authority." were divided upon the subject, with 92 Stephens, Constitutional View of a majority in favor of the oonstitu- the War between the States, vol. ii, tlonality of the suspension (MePher- p. 570. The State legislature of son. History of the EebelUon, p. 120). Georgia, in March, 1864, when the Garfield said, in his argument in Mil- Confederacy was in desperate straits, ligan's Case (4 "Wall. 2, 57) : "When passed resolutions protesting against civilians arrested by miUtary author- the suspension of the writ of habeas 204 CONSTITUTIOKAL HISTOEY Or CONPEDEEACT. [CHAP. n. by a street-walker." ^^ The doctrine of State rights further injured the Confederacy, by attempts in the State legislatures to insti- tute separate negotiations for peace ^ and secessions from the Confederacy.^^ In but one case did it prove beneficial. Davis and Lee, than whom no one was more competent to pass judg- ment upon such a subject, were strongly of the opinion that negroes should be employed in the Southern army. The oppo- sition in the Confederate senate was so strong that Davis finally said, in his exasperation, " If the Confederacy dies, there should be written on its tombstone, ' Died of a theory.' " At the close of the war, when it was too late to prove of much value or mischief, the measure was finally carried through their Congress by the votes of the senators of Virginia, who believed the measure dangerous as well as inexpedient, but yielded to the instructions of their State Legislature.®^ The last act under the Confederate Constitution was at Charlotte, North Carolina, on April 24th, 1865, — the approval by President Davis of the terms of the agreement between Generals Johnston and Sherman that the Confederate army should disband, peace be restored, amnesty granted, and the Confederate States return to the United States with their former political rights and the rights of person and property of their inhabitants unimpaired. He obtained a written opinion from each member of his cabinet corpus and the proceedings under the senate (ibid., pp. 618, 619). See also same, declaring, "That in the judg- Stephens' testimony before the Joint ment of this .general assembly, the Committee on Eeconstruction (Report said act is a dangerous assault upon of that Committee, Part III., p. 165). the constitutional power of the courts, ^^ Stephens, Constitutional View of and upon the liberty of the people, the War between the States, vol. ii, and beyond the power of any possible p. 786. necessity to justify it" (ibid., vol. s* See the letter of Jefferson Davis ii, pp. 788, 789). Similar resolutions to the State senators of Georgia, on were passed by the legislature of State negotiations for peace (MoPher- Mississippi (McPherson, History of son, History of the Kebellion, pp. theEebellion, p. 399). More than one- 616,617). See also ibid., p. 456, 6U- third of the lower house of the Con- 622. federate Congress supported a resolu- w Cox, Three Decades of Federal tion protesting against the suspension Legislation, p. 313. of the writ of habeas corpus ; and a ^^ Davis, Else and Fall of the Con- new bill extending its power of sus- federate Government, vol. i, PP- Bl^- pension was at first defeated in the 519. §38.] PEOBLBMS OF BECONSTBUCTION. 205 recommending his action before he signed the paper. They further recommended that he should afterwards request the States to ratify his action, which was considered to be beyond his con- stitutional powers, and only justified by the emergency.^^ The government of the United States relieved them from further em- barrassment by a refusal to approve the agreement, a destruction of the Confederate government and the capture of its President.^^ § 38. Keconstruction. The restoration of peace and order after the close of the Civil War, and the readmission of the conquered people to their former relations with the Federal government, presented the most difficult political and constitutional problem which the United States has had to solve. It was accomplished only by what was, in fact as well as name, a complete reconstruction of the Union. The re- sult had established the illegality of secession, and the proceed- ings by the successful army had been justified upon the position that the war was made, not upon the seceding States, which could not be, and had not been, in law or fact separated from the Union, but upon such of the people in them as had com- bined to oppose the laws of the United States.^ "When the '■f The opinions of the Confederate war against it by the League, B. C. 189- eabinet were reprinted in the New 188, which resulted in the surrender York Sun, Feb. 14, 1886. No student of the malefactors, of whom seventeen should fail to examine the files of that were immediately massacred, and the periodical, which contain more valua- rest, sixty-three in number, executed ble historical material and more accu- the following day, after a trial before rate information concerning oonstitu- the military assembly of the League : tional questions than any other news- see Livy, xxxviii, pp. 31-33 : Freeman, paper in the world. History of Federal Government, pp. *8 Infra, § 38. The decisions of the 641-643. Sparta later resumed her courts upon the validity of the acts of former relations with the confederaojr the Confederate Government are dis- without any reconstruction (ibid), cussed subsequently under the War § 38. ' In Lincoln's Proclamation Power. of April 15, 1861, calling for troops For an interesting account of the {swpra, § 36, over note 55, and infra) : secession of Sparta from the Achaian " Whereas the laws of the United League because of the demand for States have been for some time past, some Lacedemonian filibusters who and now are opposed, and the execu- had attacked another Federal city ; tion thereof obstructed, in the States — "deoreverunt renunciandam societa- of South Carolina, Georgia, Alabama, tern Achaeis" — ; and the consequent Florida, Mississippi, Louisiana and 206 EECOJSrSTETJCTION. [chap. n. battles were over, the South and their friends in the North re- joined that, now it had been established that they had not gone out, these States must be still within the Union, and as such they were entitled to immediate representation in both houses of Congress, and complete local self-government, including full authority to regulate the right of suffrage, to determine the status and civil rights of the blacks within their boundaries, and even to pay the debts incurred for the prosecution of war against the national government.^ The victors felt their moral obligation not only to protect from the vengeance of a majority, embittered by defeat, their white allies in the South, who had risked their property and lives in support of the Union through the war, but Texas by combmations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by law; now, therefore, I, Abraham Lin- coln, President of the United States, in virtue of the power in me vested by the Constitution and the laws, have thought fit to call forth, and do call forth, the militia of the several States of the Union to the aggregate number of 75,000, in order to suppress said combinations and to cause the laws to be duly executed." 2 The best statement of this posi- tion is in the minority report of the Joint Committee on Eeconstruction (McPherson, History of Eeconstruc- tion, pp. 93-101. See also Pollard, The Lost Cause Eegained, p. 51). Ex- Senator Henry L. Dawes, of Mas- sachusetts, thus describes a scene in the Senate during October, 1861, speaking of Breckinridge of Ken- tucky : — "One of the debates in which he took part in that session was so dra- matic in some of its features that the impression it made upon me is still vivid. It occurred a few days before the disaster at Ball's Bluff, in which the lamented Baker, one of the most effective orators who ever sat in the Senate, was kiUed. Breckinridge had taken the position in debate that the Constitution had made no provision for the exigency wliioh confronted us, and was pressing for an answer to his question, ' What will you do with us if you do conquer us? We can still vote. What hinders the vanquished from marching from the battle-field in solid column to the ballot-box, and beating you there, if we shall number there more than you do? You may defeat us in the field, but you cannot disfranchise us till after conviction and judgment of court; and you can- not do that tin you have tried us by twelve of our own peers in the very State whose people have themselves revolted. So while you may conquer us in arms, we will afterward conquer you at the ballot-box.' At that mo- ment, Baker entered the Senate-cham- ber in full uniform, fresh from his command at Ball's Bluff, and, placing his sword across his desk, plunged at once into the debate. The garb of the warrior in which he stood, strangely emphasized the words of the legisla- tor when he fiercely hurled back the answer, 'We will govern you as Qon- quered provinces.'" (The Century, July, 1895, vol. 1, p. 464.) § 38.] PROBLEMS OF EECONSTETJCTION. 207 also to care for the blacks to whom they had given freedom, and who, untrained to self-support, and without civil rights recognized by law, must, if abandoned, sink, if not into actual slavery, into practical serfdom to their former masters. The situation was further complicated by the clause in the Constitution which would, if unamended, give to the Southern whites representa- tion in the House of Representatives based upon the whole number of free inhabitants, although by the State laws then upon their statute-books, the blacks, who were, in Mississippi, Louisiana and South Carolina, more than half the population, could not vote, so that, if the result of the war left that unchanged, the conquered section would have gained a stronger voice in the national councils than before.^ The disorder inevitable from the passions and habits engendered during five years of internecine strife, during which the courts had been so often closed, and the greater portion of the property of the whites had been destroyed, was moreover heightened by the presence of the mass of freed- men, untrained in that self-restraint without which liberty is intolerable, not accustomed to voluntary labor or respect for contracts and the rights of property ; and to preserve order appeals were continually made for interference by the Union army.* In 8 " A large proportion of the popu- number of free persons in each State, lation had become, instead of mere and three-fifths of all other persons, chattels, free men and citizens. When all become free, representation Through all the past struggle these for all necessarily follows. As a con- had remained true and loyal, and had, sequence, the inevitable effect of the in large numbers, fought on the side Kebellion would be to increase the of the Union. It was impossible to political power of the insurrectionary abandon them without securing them States whenever they should be al- their rights as free men and citizens. lowed to resume their position as The whole civilized world would have States in the Union." Keport of the cried out against such base Ingrati- Joint Committee on Eeconstruction. tude, and the bare idea is offensive to (McPherson, History of Keconstruo- all right-thinking men. Hence it be- tion, p. 88. See also the speech of came important to inquire what could Thaddeus Stevens, in the House, be done to secure their rights, civil Dec. 18, 1865, quoted by Blaine, and political. It was evident to your Twenty Years in Congress, vol. ii, pp. Committee that adequate security 128-130.) could only be found in appropriate * The condition of affairs is de- constitutional provisions. By an ori- scribed in the testimony before the ginal provision of the Constitution, Joint Committee on Eeconstruction. representation is based on the whole 208 BECONSTETJCTION. [CHAP. H. such, a state of affairs, it was the belief of many that local self- government was impossible. The theories propounded to meet the situation may be reduced to five : The Southern theory; the theory of conquered provinces ; the theory of State suicide ; the presidential theory; and the theory of forfeited rights.^ The Southern theory has just been explained. The theory that the seceded States were conquered provinces, with no constitutional rights, whose boundaries, if need were, might be obliterated, which was that of Thaddeus Stevens,^ was only logical if the legality of secession was conceded, and the North admitted the original contention of the South, that the war was waged by them for conquest, and not to uphold the Constitution. The theory of State suicide was ingenious as a legal fiction in- vented to meet the purposes of the situation, but without support in legal precedent, history, or the language of the Constitution. It was formulated by Charles Sumner, in a series of resolutions tabled in the Senate in 1862. These declared : — ' ' That any vote of secession or other act by which any State may undertake to put an end to the supremacy of the Constitution within its territory is inoperative and void against the Constitution, and when sustained by force it becomes a practical abdication by the State of all rights under the Constitution, while the treason it involves still further works an instant forfeiture of aU those functions and powers essential to the continued existence of the State as a body politic, so that from that time forward the territory falls under the exclusive jurisdiction of Congress as other territory, and the State being, according to the language of the law, felo-de-se, ceases to exist." " That the termination of a State under the Constitution necessarily causes the termination of those peculiar local institutions which, having no origin in the Constitution or in those natural rights which exist independent of the Constitution, are upheld by the sole and exclusive authority of the State." ' ' That slavery, being a peculiar local institution, derived from local laws, without any origin in the Constitution or in natural rights, is upheld by the sole and exclusive authority of the State, and must '• Dunning, The Constitution in Ee- 6 gee his speech in the House, Dec. construction, Political Science Quar- 18, 1865. terly, vol. i, pp. 558, 580. § 38.] THEOEIES OF KECONSTRUCTION. 209 therefore cease to exist legally or constitutionally when the State on which it depends no longer exists ; for the incident cannot survive the principal." '' The presidential theory was, that the President as conimander- in-chief had the constitutional right to organize temporary governments in the States which had been the seat of the in- surrection, until in his opinion they were capable of self-govern- ment; that by his power to pardon he had the discretion to determine the time when the insurgent people should receive immunity for their treason and restoration to any rights which they had forfeited by rebellion; and that by the imposition of conditions upon the grant of these privileges he could compel such changes in the State constitutions as were demanded by the new situation. The theory of forfeited rights was that upon which Congress finally acted. It was a compromise between the other views, and had little support in the logical interpretation of the Constitution, although great practical advantages. According to this, the insurgent States had never left, could not go out of the Union, and had always retained their political existence, but by their rebellion they had forfeited their political right to share in the councils of the nation and even to complete local self-government. In the enforcement of his plan the President had the absolute power to grant pardons ^ and the power to control the army as commander-in-chief, ^ although Congress claimed the right to regulate by law i° the exercise of the latter executive function. On the other hand. Congress was vested with the powers to exercise exclusive jurisdiction over the admission and exclusion of members," to suppress insurrections,^ and to guarantee to each State a republican form of government.!^ The clause containing this last grant was called by Sumner " the sleeping giant of the Constitution." ' McPherson, History of the Be- ^ Constitution, Art. II, Sec. 2. bellion, pp. 322, 323. This theory is » Ibid. advocated by John C. Hurd in his i" Constitution, Art. I, Sec. 8, con- Theory of our Natural Existence, and eluding clause. Brownson in The American Bepublic. " Constitution, Art I, Sec. 5. The idea was of course suggested by ^ Constitution, Art. I, Sec. 8. the English proceedings in 1688; and i* Constitution, Art. IV, Sec. 4, was equally revolutionary. Luther v. Borden, 7 How., 1, 42. 210 RECONSTRUCTION. [CHAP. U. During the early stages of the Civil War, Congress proclaimed the theory upon which the South subsequently relied. In July, 1861, the following resolution, introduced by Crittenden in the House and Andrew Johnson in the Senate, was passed with but two dissentients in the former and five in the latter body: — " Resolved, That the present deplorable Civil War has been forced upon the country by the disunionists of -the Southern States, now in revolt against the Constitutional government, and in arms around the capital. That in this national emergency Congress, banishing all feelings of mere passion or resentment, will recollect only its duty to the whole country ; that this war is not waged upon our part to any spirit of oppression, or for any purpose of conquest or subjugation, or purpose of overthrowing or interfering with the rights or established institutions of those States, but to defend and maintain the supremacy of the Constitution and preserve the Union," [in the Senate the re- solutions here said, " and all laws made in pursuance thereof "], " with all the dignity, equality, and rights of the several States unimpaired ; and that as soon as these objects are accomplished the war ought to cease." " The existence in the Union of the seceded States was re- cognized in the imposition of the direct tax of 1861, when their proportion was assigned to them and the amount of the deficiency of each was made a charge upon the land within its jurisdiction.^ At first, no attempt was made by the United States to or- ganize a civil government in any except Virginia, as described in a preceding section.^^ Before the organization of the State of West Virginia, senators and one representative elected under the auspices of the Pierpoint government were admitted to seats in Congress, from Virginia, ^^ but no other representatives from that State received seats until its reconstruction. Andrew Johnson was admitted as a senator and Maynard and Clements as representatives from Tennessee while it was still the seat of war.18 On February 9th, 1863, at the close of the thirty-seventh " McPherson, History of the Bebel- " Segur's Case, Bartlett, Contested lion, p. 286. See, however, note 2, Election Cases, 414-418; Nicolayand swpra- Hay, Life of Lincoln, vol. Ix, p. 437. 15 12 St. at L., 295, 422. is ibid., vol. ix, p. 438; vol. vi, p. 16 Swpra, § 36, over note 59. See 348. also infra, over notes 33, 54, and 58. § 38.] WAE GOVERNMENTS. 211 Congress, two representatives, chosen in the previous December at an election held under the direction of a military governor of Louisiana, were admitted to seats in the House ; but there was considerable opposition to this proceeding, and it was not intended to establish a binding precedent.^^ The insurgent territory, when subjected, was governed under martial law by the officers of the army of the United States or military governors appointed by the Presidejit, and justice was administered by judges detailed either from the military service or civil hfe, whose decrees were subject to revision by the officer in command of the district. In some cases, taxes, or rather requisitions, were levied upon the inhabitants by the officers in charge. Of the constitutionality of these acts under the war- power and the power to suppress insurrections, during the pend- ency of actual war, there can be no doubt ; and the proceedings were sustained by the Supreme Court of the United States.^" The standing in those States of the blacks and the disloyal whites, who were not prisoners of war or actually in arms against the Union, was, however, a question of serious difficulty. That of the whites was settled by acts of Congress which imposed a test-oath, called the iron-clad oath, upon all officers of the United States ^ and grand and petit jurors,^ under which all persons were disqualified from office and the jury-box who were unable to swear that they had not voluntarily assisted the Confederate Government or the insurrection. Both houses of Congress, through their power to determine the qualifications of their members, excluded all persons who, in their opinion, were guilty of disloyalty.^ Several senators from the Confederate States, w Case of Flanders and Hahn. quently in the chapter on the War Blaine, Twenty Years in Congress, vol. Power, ii, p. 36. =1 Act of June 17, 1862, 12 St. at L., 20 Cross V. Ha,rrison, 16 How., 164, p. 430. 190 ; Hamilton v. Dillon, 21 WaU., 73 ; ^ Act of July 2, 1862, 12 St. at L., Leitensdorfer v. Webb, 20 How., 176; p. 502. The Grapeshot, 9 Wall., 129 ; Mechan- 23 Case of Philip P. Thomas, of ics and Traders Banki). Union Bank, Maryland, Taft's Senate Election Cases, 22 Wall., 276; New Orleans v. N. Y. continued by Furber, p. 237, and oases Mail Steamship C!o., 20 Wall., 387. cited m/ra in the section on the sub- This subject will be discussed subse- jeet of qualifications for members of Congress. 212 EBCONSTEUCTION. [CHAP. n. and one from tlie loyal State of Kentucky, were expelled for treason.^ The validity of this action by the House and Senate is beyond dispute. The law prescribing a test-oath for grand jurors remained upon the statute-book until May 14th, 1884, when it was repealed,® after the clear intimation by the Supreme Court that although it might be a constitutional exercise of the war-power, it was unconstitutional in time of peace.^ The con- stitutionality of the act imposing such a test-oath upon officers of the United States has never been brought before the Supreme Court for review. An extension of the act so as to apply to attorneys in the Courts of the United States was subsequently held unconstitutional as an ex post facto law.^ The status of the blacks was a subject of greater difficulty. At the outbreak of hostilities, neither President Lincoln nor a majority of the Republican party was prepared to do any act which might make it appear as if the object of the war were to abohsh slavery. The negroes left behind by such of their former owners as had fled within the Confederate lines, and those who had es- caped thence to the Union army, and sought protection, were, however, capable of affording valuable assistance ; and, moreover, the consciences of the Northern civilians, as well as soldiers, were offended at the thought of returning them to slavery. Orders by General Fremont, in Missouri, August 31st, 1861, and General Hunter, May 9th, 1862, of which the former emancipated the slaves of all persons in the State of Missouri who had taken up arms against the United States, and the latter all slaves in the States of Georgia, Florida, and South Carolina, were rescinded by President Lincoln, who said : " That whether it be competent for me, as Commander-in-Chief of the army and navy, to declare the slaves of any State or States free, and whether, at any time, in any case, it shall have become a necessity indispensable to the maintenance of the government, to exercise such supposed power, are questions which, under my responsibility, I reserve to myself, 2< See the subsequent section on 180, 183 ; Atwood v. Weems, 99 V. S., expulsion from Congress. 183, 187, 188. 25 23 St. at L., 22. 27 Ex parte Garland, 4 Wall., 323. 26 U. S. V. Gale, 109 U. S. 65, 73. This subject will be discussed subse- See also Burt v. Panjaud, 99 U. S., quently. § 38. J CONTRABANDS. 213 and which I cannot feel justified in leaving to the decision of commanders in the field." ^ A temporary solution of the problem was afforded by the ingenuity of General Benjamin F. Butler, who refused to return slaves that had escaped to the Union lines, upon the plea that they were contraband of war.^ Finally, September 22d, 1862, Lincoln issued his Emancipation Proclamation, which declared that, on the first day of January, 1863, "all persons held as slaves within any State, or designated part of a State, the peo- ple whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free " ; and, at the ap- pointed time, a second proclamation, declaring the freedom of all slaves in the insurgent territory.^" Destitute freedmen were sup- ported by the War Department, in which a Freedmen's Bureau was established.^! The President observed the same care in preventing the officers of the Union army from committing him to any course of action towards the insurgent States after the restoration of peace. General Grant was instructed — " to have no conference with General Lee, unless it be for the capitula- tion of General Lee's army, or on some minor and purely military matter"; and "not to decide, discuss, or confer upon any political question. Such questions the President holds in his own hands, and will submit them to no military conferences or conventions." ^= He had previously disapproved the action of General Butler in ordering municipal elections in the district under his command, to decide whether the local governments organized by Pierpoint in Virginia should be continued. In his letters he said : — 28 McPherson, History of the Bebel- subsequently. Later statutes eman- lion pp. 245-251. cipated " able-bodied colored persons " 29 Butler's Book, p. 257. His action drafted into the army, and also their was approved by the Department of wives and children, with provisions War. He was directed to keep a list for compensation to loyal owners (13 of the fugitives employed by him, with St. at L. , 11, 29) . the names of their masters, in order ^i The abandoned land in the South that loyal masters might receive com- was temporarily appropriated for their pensation from Ctongress after the support (McPherson, History of the War (McPherson, History of the Ee- Bebellion, pp. 594, 595). bellion, pp. 244, 245) . ^'^ Stanton's telegram to Grant, Nov. 80 McPherson, History of the Bebel- 3, 1866 (McPherson, History of the lion, pp. 227, 228. The legality of Eeconstruction, p. 122). this proclamation will be considered 214 BECONSTEUCTION. [CHAP. n. ' ' Nothing justifies the suspending of the civil by the military au- thority but military necessity, and of the existence of that necessity the military commander, and not a popular vote, is to decide. And what- ever is not within such necessity should be left undisturbed." ■"The course here indicated does not touch the case when the military com- mander, finding no friendly civil government existing, may, under the sanction or direction of the President, give assistance to the people to inaugurate one." ^' Upon the collapse of the Confederacy, the Southern States as- sumed that their former position in the Union remained unim- paired ; and their governors summoned meetings of their legislar tures to adopt such measures as seemed appropriate to tliem. These proceedings were, however, suppressed by the Union army.^ In Virginia, the President at first suggested that " the gentlemen who have acted as the Legislature of Virginia, in support of the rebellion, should meet, under the protection of the army, with- draw the Virginia troops and other support from resistance to the General Government " ; but, upon finding that such permission by him would be construed as a recognition of the legal authority of the legislature, he promptly recalled liis proposition.^ The shot which killed Lincoln was more injurious to the South than any other fired in the Civil War. It was his earnest desire to restore the insuirgent States to their normal condition as soon as possible, without any more change than was absolutely neces- sary in the fundamental law. That the validity of the Proclamar tion of Emancipation should be recognized he was determined; but, beyond that, he was not disposed to impose further material conditions upon their return, although there can be little doubt but that he would have found some means of protecting the freedmen from oppression.^ And liis consummate tact and ^^ Lincoln to Butler, Aug. 9, 1864; as McPherson, History of the Be- not sent till Dec. 21, 1864; Nicolay construction, p. 26. and Hay, Life of Lincoln, vol. ix, p. ss jq ^ speech by President John- *^3- son, February 22, 1866, he said: 3* Davis, Eise and Fall of the Con- "Shortly after I reached Washington, federate Government, vol. ii, pp. 746, for the purpose of being Inaugurated 757; Dunning, The Constitution in Vice-President, I had a conversation Reconstruction, Pol. So. Q., vol. ii., with Mr. Lincoln. We were talking P- 558. about the condition of affairs, and in § 38.J Lincoln's plan. 215 firmness, supported by the confidence reposed in him by the people, and the use of the executive powers and patronage, would have made him successful in any conflict in which the opponents of his policy in Congress or the South might have engaged.^'^ On December 8th, 1863, he issued a proclamation of amnesty, grant- ing pardon to all persons who should swear that they would support, protect and defend the Constitution of the United States and the Union of the States thereunder, and abide by and faith- fully support all existing acts of Congress and proclamations of the President made during the Rebellion, with reference to slaves, "so long and so far as not modified or declared void by the decision of the Supreme Court." Persons who had held high office, civil or military, under the Confederate Government, or who had left seats on the bench or in the Congress, or resigned commissions in the army or navy of the United States in order to aid the Rebellion, and all who had engaged in any way in treating Union colored soldiers or sailors, or their of&cers, otherwise than lawfully as prisoners of war, were excepted from the proc- lamation. He then continued : — "And I do further proclaim, declare, and make known that when- ever in any of the States of Arkansas, Texas, Louisiana, Mississippi, Tennessee, Alabama, Georgia, Virginia, Florida, South Carolina, and North Carolina, a number of persons, not less than one-tenth in num- ber of the votes cast in such State at the presidential election of the reference to matters in my own State. suggested was, and he replied, ' I I said we had called a convention and have labored to preserve this Union, demanded a constitution, abolishing I have toiled four years. I have been slavery in the State, which provision subjected to calumny and misrepre- was not contained in the President's sentation, and my great and sole de- proclamation. This met with his ap- sire has been to preserve these States probation, and he gave me encour- Intact under the Constitution, as they agement. In thinking upon the sub- were before ; and there should be an ject of amendments to the Constltu- amendment to the Constitution which tion, he said, ' when the amendment would compel the States to send their to the Constitution now proposed Is Senators and Representatives to the adopted by three-fourths of the Congress of the United States States, I shall be pretty nearly or (McPherson, History of the Eeoon- quite done as regards forming amend- struction, p. 61). ments to the Constitution, if there 87 See Blaine, Twenty Years in Con- should be one other adopted.' I gress, vol. ii, pp. 43, 44; Eiddle, Eecol- asked what that other amendment lections of War Times. 216 EECONSTETJCTION. [CHAP. II. year of our Lord one thousand eight hundred and sixty, each having taken the oath aforesaid and not having since violated it, and being a quaMed voter by the election law of the State existing immediately before the sO'Called act of secession, and excluding all others, shall re- establish a State government which shall be republican, and in no wise contravening said oath, such shall be recognized as the true govern- ment of the State, and the State shall receive thereunder the benefits of the constitutional provision which declares that ' the United States shall guarantee to every State in this Union a republican form of gov- ernment, and shall protect each of them against invasion ; and, on application of the legislature, or the executive (when the legislature cannot be convened) , against domestic violence.' ' ' And I do further proclaim, declare, and make known that any pro- vision which may be adopted by such State government in relation to the freed people of such State, which shall recognize and declare their permanent freedom, provide for their education, and which may yet be consistent, as a temporary arrangement, with their present condition as a laboring, landless, and homeless class, will not be objected to by the National Executive. And it is suggested as not improper, that, in con- structing a loyal State government in any State, the name of the State, the boundary, the subdivisions, the Constitution, and the general code of laws, as before the rebellion, be maintained, subject only to the modifications made necessary by the conditions heretofore stated, and such others, if any, not contravening said conditions, and which may be deemed expedient by those framing the new State government. ' ' To avoid misunderstanding, it may be proper to say that this Proclamation, so far as it relates to State governments, has no refer- ence to States wherein loyal State governments have all the while been maintained. And for the same reason, it may be proper to further say, that whether members sent to Congress from any State shall be admitted to seats constitutionally, rests exclusively with the respective Houses, and not to any extent with the Executive. And still further, that this Proclamation is intended to present the people of the States wherein the national authority has been suspended, and loyal State governments have been subverted, a mode in and by which the national and loyal State governments may be re-established within said States, or in any of them ; and, while the mode presented is the best the Executive can suggest, with his present impressions, it must not be understood that no other possible mode would be acceptable." The only conditions imposed for the benefit of the blacks were that the new State governments should recognize the validity of §38.] LINCOLN S PLAN. 217 the Emancipation Proclamation ; and Lincoln even expressed his approval of a temporary arrangement by which they might be kept for a limited period of time in compulsory apprenticeship, in order to gradually habituate them to freedom.^ In explanation of this suggestion, he said, in his message to Congress contemporary with the proclamation : — ■ ' ' The proposed acquiescence by the National Executive in any rea- sonable temporary State arrangement of the freed people is made with a view of finally modifying the confusion and destitution which must, at best, attend all classes by a total revolution of labor throughout whole States. It is hoped that the already deeply afflicted people in those '" States may be somewhat more ready to give up the cause of their afflic- tion, if, to this extent, this vital matter be left to themselves ; while no power of the National Executive to prevent an abuse is abridged by the proposition."'^ He suggested, subsequently, to the governor elected in Louisi- ana that the right of suffrage should be extended to a part of the blacks.*" 88 McPherson, History of the Ee- bellion, pp. 147, 148. In explanation of this proclamation, he said in his annual message to Congress of the same date: "But why tender the benefits of this provision only to a State government, set up in this par- ticular way? This section of the Constitution contemplates a case wherein the element within a State, favorable to republican government, in. the Union, may be too feeble for an opposite and hostile element external to or even within the State ; and such are precisely the cases with which we are now dealing. An attempt to guarantee and protect a revived State government, constructed in whole, or in preponderating part, from the very element against whose hostility and violence it is to be protected, is sim- ply absurd. There must be a test by which to separate the opposing ele- ments so as to build only from the sound ; and that test is a sufficiently liberal one, which accepts as sound whoever will make a sworn recanta- tion of his former unsoundness " (McPherson, History of the Eebellion, p. 146). In his speech of April 11th, 1865, Lincoln said: "This plan was, in advance, submitted to the then Cabinet, and distinctly approved by every member of it. One of them suggested that I should then, and in that connection, apply the Emancipa- tion Proclamation to the theretofore excepted parts of Virginia and Louisi- ana; that I should drop the sugges- tion about apprenticeship for free people, and that I should omit the protest against my own power, in re- gard to the admission of members of Congress ; but even he approved every part or parcel of the plan which has since been employed or touched by the action of Louisiana" (ibid., p. 609). This was Chase. 89 McPherson, History of the Rebel- lion, p. 146. *» "I barely suggest for your pri- vate consideration, whether some of 218 EECONSTEUCTION. [CHAP. 11. Pursuant to this proclamation, in the spring of 1864, under the protection of the army, State governments were organized by a minority of the inhabitants of Arkansas and Louisiana, — in the former State by more than a fifth, and in the latter by about an eighth of the number of voters at the last presidential election.*^ In Arkansas, senators and representatives were elected, and ap- plied for admission to Congress. The members of the National Legislature, however, were by no means satisfied with the action of the President in thus taking the initiative without consulting with them. Many of their leaders, moreover, not only cherished feelings of bitterness against the South, but were more impressed than he with the necessity of ensuring protection for the emancipated but helpless blacks, and providing in the conquered States indemnity for the past and security for the future. The scheme of Lincoln was derided as a short-hand method of reconstruction by means of ten-per-cent gov- ernments.*^ The Senate, June 24th, 1864, refused admission to the senators chosen by Arkansas upon the following ground, stated in the report of the committee of the judiciary : "While a portion of Arkansas is at this very time, as the Committee are informed, in the actual possession and subject to the control of the enemies of the United States, other parts of the State are only held in subordination to the laws of the Union by the strong arm of military power. While this state of things continues, and the right to exercise armed authority over a large part of the State is claimed and exerted by the military power, it cannot be said that a civil government, set up and continued only by the sufferance of the military, is that re- publican form of government which the Constitution requires the United States to guarantee to every State in the Union." ^^ the colored people may not be let in ; Cases, continued by Furber, p. 205. as for instance, those who have fought In Louisiana, 6,836 against 1,5G6. gallantly in our ranks." Lincoln to Blaine, Twenty Years in Congress, Michael Hahn, March 15, 1864 (Blaine, vol. ii, p. 40. Twenty Years in Congress, vol. ii, p. 42 Blaine, Twenty Years in Con- 39). gress, vol. ii, pp. 40-43, 79. *i In Arkansas, for the new Consti- ^3 Case of Fishbaok and Baxter, tution, 12,177 ; against it, 226. Fish- Taft's Senate Election Cases, contin- back's Case, Taft's Senate Election ued by Furber, pp. 202-205. § 38.] OPPOSITION TO LINCOLN. 219 Similar action was taken by the House.** At the same session of Congress at which these senators elect were refused admission, a bill was passed which authorized the President to appoint pro- visional governors of each of the States declared to be in rebellion, with authority to organize State governments through an elec- tion by the white male citizens whenever a majority had taken the oath of allegiance, with the exclusion from the franchise and from eligibility as delegates of all persons who had held office under the Confederate Government. It required that such con- ventions should insert in the State constitutions disfranchisement from the rights to vote and hold office in the legislature or as governor of all persons who had held civil office or a military office of the grade of colonel or higher under the Confederacy ; the abolition of slavery ; and the repudiation of the Confederate debt and the State debt incurred during the war. Upon the adoption of such a Constitution, the government so established was to be recognized by the President as legitimate, and representatives in both houses of Congress and the Electoral College were to be received from the State. Subsequent sections abolished slavery in the States affected by the bill and declared members of the disfranchised class not to be citizens of the United States. The main points of difference between the presidential and congres- sional plans at this time were that the latter required the action of a majority and the former that of only about ten per cent of the white male citizens to entitle the new State government to recog- nition ; and that Congress also required the adoption by the States of certain constitutional provisions permanently excluding from political power their natural leaders, besides repudiating the debts incurred in aid of the insurrection. Lincoln failed to sign this bill, and issued a proclamation, which stated as his reasons : — "While I am unprepared, by a formal approval of this bill, to be inflexibly committed to any single plan of restoration ; and, while I am also unprepared to declare that the free State constitutions and governments already adopted and installed in Arkansas and Louisiana shall be set aside and held for nought, thereby repelling and dis- couraging the loyal citizens who have set up the same as to further effort, or to declare a constitutional competency in Congress to abolish ** Blaine, Twenty Years in Congress, vol. ii, p. 41. 220 KECONSTBUCTION. [chap. n. slavery in States, but am at the same time sincerely hoping and ex- pecting that a constitutional amendment abolishing slavery throughout the nation may be adopted, nevertheless I am fully satisfied with the system for restoration contained in the bill as one very proper plan for the loyal people of any State choosing to adopt it, and that I am, and at all times shall be, prepared to give the executive aid and assistance to any such people, so soon as the military resistance to the United States shall have been suppressed in any such State, and the people thereof shall have sufficiently returned to their obedience to the Con- stitution and laws of the United States, in which case military governors will be appointed, with directions to proceed according to the biU."'" « McPherson, History of the Ke- bellion, pp. 317-319. " Congress was to adjourn at noon, on the Fourth of July; the President was at work in his room at the Capitol, signing bills, which were laid before him as they were brought from the two Houses. When this important bill was placed before him, he laid it aside and went on with the other work of the moment. Mr. Sumner and Mr. Boutwell, whUe their nervousness was evident, re- frained from any comment. Zachariah Chandler, who was unabashed in any mortal presence, roundly asked the President if he intended to sign the bill. The President replied : ' This bill has been placed before me a few minutes before Congress adjourns. It is a matter of too much importance to be swallowed in that way.' ' If it is vetoed,' cried Mr. Chandler, 'it will damage us fearfully in the Northwest. The important point is that one pro- hibiting slavery in the reconstructed States.' Mr. Lincoln said : ' That is the point on which I doubt the author- ity of Congress to act.' ' It is no more than you have done yourself,' said the Senator. The President answered : ' I conceive that I may in an emergency do things on military grounds which cannot be done consti- tutionally by Congress.' Mr. Chand- ler, expressing his deep chagrin, went out, and the President, addressing the members of the Cabinet who were seated with him, said, ' I do not see how any of us now can deny or con- tradict that Congress has no constitu- tional power over slavery in the States.' Mr. Eessenden expressed his entire agreement with this view. ' I have even had my doubts,' he said, ' as to the constitutional effloaey of your own decree of emancipation, in those cases where it has not been carried into effect by the actual ad- vance of the army.' The President said : ' This bill and the position of these gentlemen seem to me, in assert- ing that the insurrectionary States are no longer in the Union, to make the fatal admission that States, whenever they please, may of their own motive dissolve their connection with the Union. Now we cannot survive that admission I am convinced. If that be true, I am not President ; these gen- tlemen are not Congress. I have laboriously endeavored to avoid that question ever since it first began to be asserted, and thus to avoid confusion and disturbance in our own councils. It was to obviate this question that I earnestly favored the movement for an amendment abolishing slavery, which passed the Senate and failed in the House. I thought it much better if it were possible to restore the Union § 38.J OPPOSITION TO LINCOLN. 221 Meanwhile his lenient treatment of the Southern States had caused considerable ill-feeling towards him among leaders of the Republican party out of Congress as well as in it. A move- ment to secure his defeat in the convention and the nomination in his place of Governor Tod of Ohio had been supported by a number of other war governors ; but the will of the people was too strong for them.*^ After Lincoln's renomination, and the adjourn- ment of Congress, Senator Benjamin F. Wade of Ohio, and Henry "Winter Davis of Maryland, the chairmen of the Committees on the Rebellious States of the two houses of Congress, united in a protest published in the New York Tribune, August 5th, 1864, against his refusal to sign the Reconstruction Bill ; ^'^ but the paper had no effect except to aid in defeating the renomination of Davis.48 Before the presidential election, Tennessee had also organized a government under Lincoln's proclamation, and presidential electors were chosen in Tennessee and Louisiana. February 4th, 1865, Congress passed the following : — " Joint Resolution declaring certain States not entitled to representa- tion in the electoral college : Whereas the inhabitants and local authorities of the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas, and Tennessee rebelled against the government of the United States, and were in such condition on the 8th day of November, 1864, that no valid election for President and Vice-President of the United States according to the Constitution and laws thereof was held therein on said day : Therefore, Be it resolved. That the States mentioned in the preamble to this joint resolution are not entitled to representation in the electoral college, and no electoral votes shall be received or counted from said States." ^' without the necessity of a violent then Attorney-General of Massaehu- quarrel among its friends as to whether setts under Governor Andrew, who certain States have been in or out of sympathized with this movement. the Union during the war — a merely *' McPherson, History of the Ke- metaphysical question, and one un- bellion, p. 332. necessary to be forced into discus- *' Blaine, Twenty Years in Congress, sion ' " (Nicolay and Hay, Life of vol. ii, p. 44. Lincoln, vol. ix, pp. 120, 121). *» McPherson, History of the Be- *8 The writer learned this from the bellion, pp. 577-579. late Judge Dwight Foster, who was 222 EECONSTEUCTION. [CHAP. n. Lincoln signed this resolution and informed Congress that it — " has been signed by the Executive in deference to the view of Con- gress implied in its passage and presentation to him. In his own view, however, the two Houses of Congress, convened under the twelfth article of the Constitution, have complete power to exclude from counting all electoral votes deemed by them to be illegal ; and it is not competent for the Executive to defeat or obstruct that power by a veto, as would be the case if his action were at all essential in the matter. He disclaims all right of the Executive to interfere in any way in the matter of canvassing or counting electoral votes, and he also disclaims that, by signing said resolution, he has expressed any opinion on the recitals of the preamble, or any judgment of his own upon the subject of the resolution." *° His last public speech was a defence of this plan of reconstruc- tion, in -which, however, he said that he was not inflexibly com- mitted to it.^i Lincoln's death, however, on April 15th, 1865, placed the presidency in the hands of Andrew Jolmson, who was by no means qualified to acquire the leadership, or even to command the respect of the party who had chosen him Vice-President in order to acknowledge their obligations to the Union men of the South. The difficulties of the situation were increased by the action of General Sherman, who, flushed with the triumph of his unparalleled march to the sea, three days after Lincoln's death, assumed to solve the problem of reconstruction in an agreement for an armistice with General Johnston in North Carolina. In this, he individually and officially pledged himself to procure the neces- sary acts by his superiors for a general amnesty and the immedi- ate restoration of the seceded States to their political position before the war ; " the people and inhabitants of all these States to be guaranteed, so far as the Executive can, their political rights and franchises, as well as their rights of person and property, as defined by the Constitution of the United States, and of the States respectively " ; a clause which, if executed, might have restored slavery ; in return for the disbandment of the Confederate army and the resumption of peaceful pursuits by its officers and pri- M McPherson, History of the Be- " ibi^., pp. 608-610. bellion, pp. 577-579. § 38.] Sherman's ARivnsTiCB. 223 vates. This agreement was promptly ratified by Jefferson Davis, on behalf of the Confederacy, with the approval of his cabinet ; but, as soon as received in Washington, it was disapproved by the President and cabinet, and Sherman was ordered to resume hos- tilities immediately.^^ After at first inclining to severer measures against the South, influenced by the persuasion of Seward,^^ ^j^q ^g^g g^.j^ Secretary of State, Johnson pursued the policy instituted by his predecessor. On May 29th, 1865, he issued a proclamation which directed the administrative and judicial officers of the United States to en- force the laws in Virginia, and said — ' ' that, to carry into effect the guaranty of the Federal Constitution of a republican form of State government, and afford the advantage and security of domestic laws, as well as to complete the re-establishment of the authority of the laws of the United States, and the full and com- plete restoration of peace within the limits aforesaid, Francis H. Pier- point, Governor of the State of Virginia, will be aided by the Federal Government, so far as may be necessary, in the lawful measures which he may take for the extension and administration of the State govern- ment throughout the geographical limits of said State." ^* On May 29th he issued a proclamation of amnesty similar to that of Lincoln, with, however, more stringent exceptions, in- cluding in the excepted classes all " persons who have voluntarily participated in said rebellion, and the estimated value of whose taxable property is over twenty thousand dollars." ^^ He immedi- ately appointed provisional governors of the States of North Car- olina, Mississippi, Georgia, Texas, Alabama, South Carolina, and Florida, with instructions to each — 62 McPherson, History of the Ke- the proposition of States relapsing construction, pp. 121, 122. The opin- into Territories and held as such." ions of the Ctonfederate Cabinet on "The institution of slavery is gone, the subject are published in the New and there is no good reason for de- York Sun, Feb. 14, 1886 ; supra, § 37, stroying the States to bring about the over note 97. destruction of slavery." (McPherson, M Blaine, Twenty Years in Con- History of Reconstruction, p. 199.) grass, vol. ii, pp. 67-68. As early as " McPherson, History of the Ee- Nov. 24, 1863, however, Johnson had construction, p. 8. See infra, over written to the Postmaster-General, note 58. Montgomery Blair: "I hope that the ^^ Ibid., p. 10. President will not be committed to 224 KECONSTKUCTION. [CHAP. II. ' ' at the earliest practicable period, to prescribe such rules and regula- tions as may be necessary and proper for convening a convention, com- posed of delegates to be chosen by that portion of the people of said State who are loyal to the United States, and no others, for the purpose of altering or amending the constitution thereof ; and with authority to exercise, within the limits of said State, all the powers necessary and proper to enable such loyal people of the State of North Carolina to restore said State to its constitutional relations to the Federal Govern- ment, and to present such a republican form of State government as will entitle the State to the guaranty of the United States therefor, and its people to protection by the United States against invasion, insurrec- tion, and domestic violence ; that in any election that may be hereafter held for choosing delegates to any State convention, as aforesaid, no person shall be qualified as an elector, or shall be eligible as a member of such convention, unless he shall have previously taken the oath of amnesty, as set forth in the President's proclamation of May 29, A. D. I86J9 and is a voter qualified as prescribed by the Constitution and laws of the State of North Carolina, in force immediately before the twentieth day of May, 1861, the date of the so-called ordinance of se- cession ; and the said convention, when convened, or the legislature that may be thereafter assembled, will prescribe the qualification of electors, and the eligibility of persons to hold office under the constitu- tion and laws of the State, — a power the people of the several States composing the Federal Union have rightfully exercised from the origin of the government to the present time. " And I do hereby direct : — ' ' First, That the military commander of the department, and all offi- cers and persons in the military and naval service, aid and assist the said Provisional Governor in carrying into effect this proclamation ; and they are enjoined to abstain from in any way hindering, impedmg or discouraging the loyal people from the organization of a State govern- ment, as herein authorized. ' ' Second, That the Secretary of State proceed to put in force all laws of the United States, the administration whereof belongs to the State Department, applicable to the geographical limits aforesaid. " Third, That the Secretary of the Treasury proceed to nominate, for appointment, assessors of taxes and collectors of customs and internal revenue, and such other officers of the Treasury Department as are au- thorized by law, and put in execution the revenue laws of the United States within the geographical limits aforesaid. In making appoint- ments, the preference shall be given to qualified loyal persons residing § 38.J Johnson's plan. 225 within the districts where their respective duties are to be performed. But if suitable residents of the districts shall not be found, then per- sons residing in other States or districts shall be appointed. ^^ Fourth, That the Postmaster-General proceed to establish post- offices and post-routes, and put into execution the postal laws of the United States within the said State, giving to loyal residents the prefer- ence of appointment ; but if suitable residents are not found, then to appoint agents, &c., from other States. " Fifth, That the district judge for the judicial district in which North Carolina is included, proceed to hold courts within said State, in accordance with the provisions of the act of Congress. The Attorney- General will instruct the proper officers to libel, and bring to judgment, confiscation and sale, property subject to confiscation, and enforce the administration of justice within said State in all matters within the cog- nizance and jurisdiction of the Federal courts. " Sixth, That the Secretary of the Navy take possession of all pub- lic property, belonging to the Navy Department, within said geograph- ical limits, and put in operation all acts of Congress in relation to naval affairs having application to the said State. " Seventh, That the Secretary of the Interior put in force the laws relating to the Interior Department applicable to the geographical limits aforesaid." '" Under the immediate supervision of the President, who sent constant instructions in telegrams signed by himself or the Secretary of State, and issued thirteen thousand pardons within nine months to members of the excepted classes who seemed will- ing to aid his policy, the governors called conventions which proceeded to amend the State constitutions. These repealed or declared null and void the ordinances of secession. All but Mississippi declared slavery to be abolished; and most, under pressure by the President, annulled their war-debts and ratified the Thirteenth Amendment, which abolished slavery, although some with the qualification that the ratification was " with the understanding that it does not confer upon Congress the power to legislate upon the political status of freedmen in this State." ^'' Thereupon they immediately elected members of Congress and ^ McPherson, History of the Ke- cations of South Carolina and Florida, construction, pp. 11-12. Ibid., pp. 18-28 ; Blaine, Twenty Years 6' Alabama. Similar are the ratifl- in Congress, vol. ii, p. 76. 226 EECONSTRUCTION. [CHAP. II. State legislatures which elected senators. In Virginia, Jolxason had recognized the Pierpoint government, headed by Francis H. Pierpoint, -who had been elected governor in 1861 by a con- vention composed mostly of residents of what subsequently became West Virginia.^^ All its archives and property were taken from Alexandria to Richmond in an ambulance.^^ Pier- point called together a legislature which reorganized the gov- ernment without a convention, after having obtained by a vote of the people authority to amend the State Constitution.^" In Louisiana, Arkansas, and Tennessee, Johnson respected the State governments organized during the life of Lincoln. All these proceedings were instituted, and most of them completed, while Congress was not in session. When the Thirty-ninth Congress assembled in December, 1865, senators and representatives from nearly all these States were ready to present their credentials for admission. Many of them could not take the iron-clad oath and were excepted from the proclamations of amnesty. Amongst these was Alexander H. Stephens, the Vice-President of the late Confederacy. The President informed Congress in his message that a restoration of loyal State governments, accompanied by the abolition of slavery and obedience to the laws and government of the United States, had been established in all the seceded States, except Florida and Texas, where — ' ' the people are making commendable progress in restoring their State governments, and no doubt is entertained that they will at an early period be in a condition to resume all their practical relations with the Federal government." ^^ He said further : — ' ' The full assertion of the powers of the General Government requires the holding of Circuit Courts of the United States within the districts where their authority has been interrupted. In the present posture of our public affairs, strong objections have been urged to holding those courts in any of the States where the rebellion has 68 MoPherson, History of the Ee- construction, p. 26 ; Cox, Three re- construction, p. 8 ; supra, over notes cades of Federal Legislation, pp. 122- 17, 33, 54 ; and § 36, over note 59. 424. • 63 Blaine, Twenty Years in Con- n McPherson, History of the Ee- gress, vol. ii, p. 79. construction, p. 67. ^'> McPherson, History of the Be- § 38.] < JOINT COMMITTEE ON EECONSTEUCTION. g27 existed : and it was ascertained, by inquiry, that the Circuit Court of the United States would not be held within the district of Virginia during the autumn or early winter, nor until Congress should have ' an opportunity to consider and act on the whole subject.' To your delibera- tions the restoration of this branch of the civil authority of the United States is therefore necessarily referred, with the hope that early pro- vision will be made for the resumption of all its functions. It is manifest that treason, most flagrant in character, has been committed. Persons who are charged with its commission should have fair and impartial trials in the highest civil tribunals of the country, in order that the Constitution and the laws may be fully vindicated ; the truth clearly established and affirmed that treason is a crime, that traitors should be punished and the offence made infamous ; and, at the same time, that the question be judicially settled, finally and forever, that no State of its own will has the right to renounce its place in the Union." °' On December 5tli Georgia ratified the Thirteenth Amendment. The United States were then thirty-six in number, of which twenty-seven constituted three-fourths. Georgia was the twenty- seventh State to ratify, and on December 18th, Seward, the Secre- tary of State, filed a certificate under the seal of his department, stating that the amendment had been adopted. Subsequently, four of the loyal States and one of the former members of the Confederacy also ratified this amendment. But even after the votes by those four loyal States were added, it has never ob- tained the requisite ratification by three-fourths of the States, unless the validity of this action by the governments of the former insurgent States, organized by Lincoln and Johnson, is recognized.®^ The majority of hoth Houses lost no time in manifesting their opposition to the policy of the President. The usual courtesy of the privileges of the floor pending the decision as to their admission, was not extended to the Southern representatives.®* On December 13th, 1865, a joint committee on Reconstruction was appointed, with instructions to " inquire into the condition of tiie 62 itid., p. 65. tion in Eeconstruction, Pol. So. Q., vol. 83 Ibid., p. 6. Seward was criticized it, p. 591.) at the time for his recognition of the «* Blaine, Twenty Years in Oon- validity of this action by the insur- gress, vol. ii, pp. 112, 113. gent States. (Dunning, The Constitu- 228 BBCONSTEUCTION. [CHAP. 11. States whicli formed the so-called Confederate States of America and report whether they or any of them are entitled to be repre- sented in either House of Congress, with leave to report by bill or otherwise." The report was not made until June 18th, 1866. In the meantime, the legislatures and people of the former Con- federate States under their new constitutions had acted with great indiscretion, in view of the perils of their situation. They refused to comply with Johnson's recommendation to " extend the elec- tive franchise to all persons of color who can read the Constitution of the United States in English and write their names, and to all persons of color who own real estate, valued at not less than two hundred and fifty dollars and pay taxes thereon." ^ Many persons who had not received amnesty were elected to high office, and different statutes were enacted grossly oppressive to the freed blacks, which made them liable to be " hired out " for six months to the highest bidder, as vagrants, and their children to appren- ticeship to their former owners ; subjected them to arrest and compulsory service in case of a breach of a contract of employ- ment ; and in one State, Louisiana, compelled agricultural laborers to make labor contracts within the first ten days of January, to be in force for an entire year, compliance with which could be compelled by justices of the peace. Poll-taxes without representar tion were also imposed upon them, in some States, and in one State at least were collected by the compulsory labor of the de- linquents.^^ ^5 Johnson recommended this in a will be completely foiled in their at- cireular letter to the provisional gov- tempt to keep the Southern ernors whom he appointed. In a from renewing their relations to the telegram to Governor W. L. Sharkey Union by not accepting their senators of Mississippi, August 15, 1865, he and representatives." (Ibid., pp. 81- said that by such action " You would 82; McPherson, History of the Eecon- completely disarm the adversary struction, pp. 19, 20.) and set an example the other States 66 ggg abstracts of these statutes in will follow. This you can do with McPherson, History of the Eecon- perfect safety, and you thus place struction, pp. 29-44; Blaine, Twenty the Southern States, in reference to Years in Congress, vol. ii, pp- 94-106; free persons of color upon the same and Cox, Three Decades of Federal basis with the free States. I hope and Legislation, pp. 414-416. This subject trust your convention will do this, will be considered subsequently in the and as a consequence, the radicals, discussion of the Fourteenth Amend- who are wild upon negro franchise, ment. § 38.] JOINT COMMITTEE ON KECONSTEUCTION. 229 The report of the Joint Committee on Reconstruction, like most important state documents of the Anglo-Saxon race, was based upon compromise, and mentioned without too much regard to logical consistency, each theory that could be applied to support the measures which it recommended. The beginning stated the condition of the insurgent States at the close of the Civil War and the declaration of the President that they were "deprived of all civil government." The Committee continued : — " These Confedexate States embrace a portion of the people of the Union who had been in a state of revolt, but had been reduced to a state of obedience by force of arms. They were in an abnormal condition, without civU government, without commercial connections, without national or international relations, and subject only to martial law. By withdrawing their representatives in Congress, by renouncing the privilege of representation, by organizing a separate government, and by levying war against the United States, they destroyed their State Constitutions in respect to the vital principle which connected their respective States with the Union and secured their federal relations ; and nothing of those constitutions was left of which the United States were bound to take notice. For four years they had a dejacto govern- ment, but it was usurped and illegal. They chose the tribunal of arms wherein to decide whether or not it should be legalized, and they were defeated. At the close of the Rebellion, therefore, the people of the rebellious States were found, as the President expresses it, ' deprived of all civil government.' Under this state of affairs it was plainly the duty of the President to enforce existing national laws, and to establish, as far as he could, such a system of government as might be provided for, by existing national statutes. As commander-in-chief of a vic- torious army, it was his duty, under the law of nations and the army regulations, to restore order, to preserve property, and to protect the people against violence from any quarter until provision should be made by law for their government. He might, as President, assemble Congress and submit the whole matter to the law-making power ; or he might continue military supervision and control until Congress should assemble on its regular appointed day. Selecting the latter alternative, he proceeded, by virtue of his power as commander-in-chief, to appoint provisional governors over the revolted States.'' " It cannot, we think, be contended that these governors possessed, or could exercise, any but military authority. They had no power to organize civil governments nor to exercise any authority except that which inhered in 230 EECONSTEUCTION. [CHAP. U. their own persons under their commissions. Neither had the President, as commander-in-chief, any other military power. But he was in exclusive possession of the military authority. It was for him to decide how far he would exercise it, how far he would relax it, when and on what terms he would withdraw it. He might properly permit the people to assemble, and to initiate the local governments, and to execute such local laws as they might choose to frame not inconsistent with, nor in opposition to, the laws of the United States. And, if satisfied that they might safely be left to themselves, he might withdraw the military forces altogether, and leave the people of any or all of these States to govern themselves without his interference." " But it was not for him to decide upon the nature or effect of any system of government which the people of these States might see fit to adopt. This power is lodged by the Constitution in the Congress of the United States, that branch of the government in which is vested the authority to fix the political relations of the States to the Union, whose duty is to guarantee to each State a republican form of government, and to protect each and all of them against foreign or domestic violence, and against each other. We cannot, therefore, regard the various acts of the President in relation to the formation of local governments in the insurrectionary States, and the conditions imposed by him upon their action, in any other light than as intimations to the people that, as commander-in- chief of the army, he would consent to withdraw military rule just in proportion as they should, by their acts, manifest a disposition to preserve order among themselves, establish governments denoting loyalty to the Union, and exhibit a settled determination to return to their allegiance, leaving with the law-making power to fix the terms of their final restoration to all their rights and privileges as States of the Union." After referring to the message of the President urging the speedy restoration of these States to their former condition in the Union, the report continued : ' ' The impropriety of proceeding wholly on the judgment of any one man, however exalted his station, in a matter involving the welfare of the republic in all future time, or of adopting any plan, coming from any source, without fully understanding all its bearings and comprehending its full effect, was apparent." The fact that military force was still employed and the writ of habeas corpus not yet restored in the States affected was then stated. The southern theory was summarized and rejected as " not only wholly untenable, but, if admitted, would tend to the destruction of the government." " WJiether legally and constitutionally or not, they did, in fact, with- draw from the Union and made themselves subjects of another govern- § 38.J JOINT COMMITTEE ON EECONSTKUCTION. 231 ment of their own creation." "Your committee does not deem it either necessary or proper to discuss the question whether the late Confederate States are still States of the Union, or can even be other- wise. Granting this profitless abstraction about which so many words have been wasted/' it by no means follows that the people of those States may not place themselves in a condition to abrogate the powers and privileges incident to a State of the Union, and deprive themselves of all pretence of right to exercise those powers and enjoy those privileges. A State within the Union has obligations to discharge as a member of the Union. It must submit to federal laws and uphold federal authority. It must have a government republican in form, under and by which it is connected with the General Government, and through which it can discharge its obligations. It is more than idle, it is a mockery, to contend that a people who have thrown off their allegiance, destroyed the local government, which bound theii States to the Union as members thereof, defied its authority, refused to execute its laws, and abrogated every provision which gave them political rights with the Union, still retain, through all, the perfect and entire right to resume, at their own will and pleasure, all their privileges within the Union, and especially to participate in its government, and 6' In his last speech, March 17, 1865, that the seceded States, so-called, are Lincoln had said: "I have been out of their proper practical relation shown a letter on this subject, sup- with the Union, and that the sole ob- posed to be an able one, in which the ject of the Government, civil and mil- writer expresses regret that my mind Itary, of those States, is to again get has not seemed to be definitely fixed them into that proper practical rela- on the question whether the seceded tion. I believe it is not only possible, States, so-called, are in the Union or but in fact easier to do this without out of it. It would, perhaps, add deciding, or even considering, whether astonishment to his regret were he these States have ever been out of to learn that, since I have found the Union, than with it. Finding professed Union men endeavoring to themselves safely at home, it would make that question, I have pwrpoaely be utterly immaterial whether they forborne any public expression upon had ever been abroad. Let us all Join it. As appears to me, that question in doing the acts necessary to restor- has not been, nor yet is, a practically ing the proper practical relations be- material one, and that any discussion tween those States and the Union, and of it, while it thus remains practically each forever after innocently indulge immaterial, could have no effect other his own opinion, whether, in doing than the mischievous one of dividing the acts, he brought the States from our friends. As yet, whatever it may without into the Union, or only gave hereafter become, that question is them proper assistance, they never bad as the basis of a controversy, and having been out of it." (McPherson, good for nothing at all — a merely History of the Bebellion, p. 609.) pernicious abstraction. We all agree 232 BECONSTEPCTION. [CHAP. II. to control the conduct of its affairs. To admit such a principle for one moment would be to declare that treason is always master and loyalty a blunder. Such a principle is void by its very nature and essence, because inconsistent with the theory of government, and fatal to its very existence. On the contrary, we assert that no portion of the people of this country, whether in State or Territory, have the right, while remaining on its soil, to withdraw from or reject the authority of the United States. They must obey its laws as paramount, and acknowledge its jurisdiction. They have no right to secede ; and while they can destroy their State government, and place themselves beyond the pale of the Union, so far as the exercise of State privileges is concerned, they cannot escape the obligations imposed upon them by the Constitution and the laws, nor impair the exercise of national authority. The Constitution, it will be observed, does not act upon the people ; while, therefore, the people cannot escape its authority, the States may, through the act of their people, cease to exist in an organized form, and thus dissolve their political relations with the United States." The obligations of the North to the freedmen and the difficulties arising from the original provisions of the Constitution concerning the proportion of representatives were then stated. Objec- tions were raised to the regularity of the proceedings for the election of representatives from the south, and it was said : ' ' Your committee are accordingly forced to the conclusion that the States referred to have not placed themselves in a condition to claim representation in Congress, unless all the rules which have, since the foundation of the Government, been deemed essential in such cases should be disregarded." The dis- loyal temper of the South, as proved by the evidence taken before them, was then set forth : "With such evidence before them, it is the opinion of your com- mittee — "I. That the States lately in rebellion were, at the close of the war, disorganized communities, without civU government, and without con- stitutions or other forms, by virtue of which political relations could legally exist between them and the Federal Government. " II. That Congress cannot be expected to recognize as valid tie election of representatives from disorganized communities, which, from the very nature of the case, were unable to present their claim to representation under those established and recognized rules, the obser- vance of which has been hitherto required. ' ' III. That Congress would not be justified in admitting such com- munities to a participation in the government of the country without § 38.J JOINT COMMITTEE ON EECONSTEUCTION. 233 first providing such constitutional or other guarantees as will tend to secure the civil rights of all citizens of the Republic ; a just equality of representation; protection against claims founded in rebellion and crime ; a temporary restoration of the right of suffrage to those who have not actively participated in the efforts to destroy the Union and overthrow the Government ; and the exclusion from positions of public trust of at least a portion of those whose crimes have proved them to be enemies to the Union, and unworthy of public confidence." It was said that the State of Tennessee occupied a position apart from all the other insurrectionary States ; and it was the subject of a separate report wliich recommended its immediate restoration to full rights in the Union. "The conclusion of your committee, therefore, is, that the so-called Confederate States are not at present entitled to representation in the Congress of the United States ; that, before allowing such representa- tion, adequate security for future peace and safety should be required ; that this can only be found in such changes of the organic law as shall determine the civil rights and privileges of all citizens in all parts of the Republic, shall place representation on an equitable basis, shall fix a stigma upon treason, and protect the loyal people against future claims for the expenses incurred in support of rebellion and for manumitted slaves, together with an express grant of power in Congress to enforce these provisions. To this end, they offer a joint resolution for amend- ing the Constitution of the United States, and the two several bills de- signed to carry the same into effect, before referred to." The minority report, which was signed by the three Democratic members of the committee, set forth the Southern theory, and claimed that the excluded States were entitled to immediate un- conditional admission.^^ Accompanying the report of the majority was the Fourteenth Amendment of the Constitution in a form slightly different from its final adoption. This had, in fact, been reported on April 30th, 88 Both reports are printed in W. Grimes, Ira Harris, J. M. How- McPherson, History of Eeeonstruc- ard, George H. Williams, Thaddeus tion, pp. 84-101. The majority report Stevens, Elihu B. Washburne, Justin with the evidence, which is well worth S. Morrill, John A. Bingham, Koscoe careful study, was printed by the Conkling, George S. Boutwell, Henry Government Printing Office. The ma- T. Blow. The minority, Keverdy John- jority were W. P. Fessenden, James son, A. J. Rogers, Henry Grider. 234 EBCONSTEtrCTION. [chap. II. 1866, more than a month before the presentation of the full report of the Committee. The Committee also reported to their respect- ive houses two bills. Of these, one declared certain persons therein designated, including high Confederate officials and Confederates who had held high Federal office, ineligible to office under the Government of the United States. The other was " A bill to pro- vide for restoring the States lately in insurrection to their full political rights." It provided that whenever the Fourteenth Amendment should have become a part of the Constitution of the United States, the senators and representatives duly elected from any State lately in insurrection, which should ratify the same and modify its constitution and laws in conformity therewith, should be admitted into Congress upon taking the required oaths of office.^^ Neither of these bills was passed; but Congress sub- sequently enforced their provisions. The Fourteenth Amendment finally passed through Congress, June 13th, 1866. It would have been well for the Southern States had they immediately accepted it. For then each would have re- tained the control of the right of suffrage within its jurisdiction; the country would have been saved the evils that resulted from the sudden entrance of a horde of ignorant blacks into the enjoy- ment of a right which most of them were unfit to exercise ; and the provisions for an increase of representation in proportion to enfranchisement, together with the influence of the democratic spirit of the people and the age, would have undoubtedly pro- duced a method by which universal suffrage would have been gradually extended to their children. The Southern people, bow- ever, had too great confidence in the power of the Executive to obtain, by the use of his patronage and prerogatives, those rights to which they thought themselves entitled by the Constitution. Contrary to the hope of the North, the amendment was rejected between October, 1866, and March, 1867, by the almost unani- mous votes of the legislatures of all the insurrectionary States except Tennessee, while it received the ratification of all the loyal States, except the border States of Delaware, Maryland and Ken- tucky, and the Pacific State of California, the last of whom rejected it in 1868. On July 20th, 1868, after its adoption by six of the 89 McPherson, History of the Keconstruction, pp. 103, 104. § 38.J FOUETEENTH AMENDMENT. 235 excluded States under the pressure of the new reconstruction legislation, it was finally declared adopted by the Secretary of State on that day, and by Congress July 21st. It was subse- quently ratified by the other disfranchised States as a condition to their restoration to representation in Congress. This established citizenship of the United States with the right of protection for its privileges and immunities from the laws of any State. It also imposed upon the States the inhibition previ- ously in force against the United States, and existing in most, if not all. State constitutions which forbade the taking of life, liberty, or property without due process of law, and further forbade them to deny any person within their jurisdiction the equal protection of their laws. It provided that representation should be apportioned according to population, excluding Indians not taxed, but that whenever the right to vote for the choice of presidential electors, representatives in Congress, or the executive, judicial, or legislative officers of the State, was denied to any male inhabitants twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebel- lion or other crime ; the basis of represention therein should be re- duced in the proportion that the number of such male citizens bore to the whole number of male citizens twenty-one years of age. The pardoning power of the President was limited by im- posing a disability to hold the office of member of either house of Congress, presidential elector, or any civil or military office under the United States, or under any State, upon any person who after taking an oath as a member of Congress, officer of the United States, or State officer, to support the Federal Constitution, had taken part in the rebellion. But Congress was permitted, by a vote of two-thirds of each house, to remove such disability. The validity of the public debt of the United States, including debts incurred for pensions and bounties for services in the Civil War, was affirmed, but it was ordained that neither the United States nor any State should assume or pay any debt or obligation incurred in time of insurrection against the United States, or any claim for the loss or emancipation of any slaves.™ During the investigation by the Joint Committee on Recon- "> The construction of the Fourteenth Amendment is discussed subsequently. 236 EECONSTBTJCTION. [CHAP. II. struction, Johnson had vetoed, February 17th, 1866, an act to establish a new Preedmen's Bureau, which reorganized and gave new powers to a branch of the War Department established for the relief of the freedmen and refugees during the war ; and March 27th, a civil rights bill which sought to secure equality in civil rights for whites and blacks. The latter, which was passed under color of the Thirteenth Amendment, was clearly unconstitutional.'^^ Support for the for- mer was sought under the war-power. The President, in his mes- sage, thus protested against such an assumption: "Let us not unnecessarily disturb the commerce and credit and industry of the country by declaring to the American people, and to the world, that the United States are still in a condition of civil war." His position was, however, weakened by the fact that the writ of ha- beas corpus was still suspended in the South, and that, while the bill was before him, the army there was taking measures for the suppression of disloyal papers.'^^ Congress retaliated by the joint resolution : " That, in order to close agitation upon a question wliich seems likely to disturb the action of the government, as well as to quiet the minds of the people of the eleven States which have been declared to be in in- surrection, no senator or representative shall be admitted into either branch of Congress from any of said States, until Congress shall have declared such State entitled to such representation." '^ On April 2d, Johnson issued a proclamation declaring " that the insurrection which heretofore existed in the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi, and Florida, is at an end, and is henceforth so to be regarded." "i* The preamble recited the con- gressional resolution previously quoted,''^ and contained an argu- ment in support of his theory of reconstruction. Texas was '1 Civil Eights Cases, 109 TJ. S., 3. 's xhis passed the House, Feb. 20, A similar act, however, was upheld at 1866, by a vote of 109 to 43 ; and the Circuit by Chief Justice Chase, in Tur- Senate, by a vote of 29 to 18, March ner's Case, 1 Abbott, U. S. 20, and Mr. 2d (McPherson, History of the Ee- Justice Swayne in TJ. S. v. Rhodes, 1 construction, p. 72). Abbott, U. S. 28. 74 jbid., pp. 15_17. '2 See McPherson, History of the '^ Supra, over note 14. Eeconstruction, p. 123. § 38.] BECOGNITION OF PEACE. 237 excepted by him. On August 20th, 1866, he issued another proc- lamation, in which he declared that the insurrection in Texas was at an end, and was to be henceforth so regarded ; and concluded : "I do further proclaim that the said insurrection is at an end, and that peace, order, tranquillity and civil authority now exist throughout the whole of the United States of America." ''^ That this established the date of the close of the Civil War was subse- quently recognized by Congress and the courts.'^^ In the meantime, by the consent of the Chief-Justice of the United States, the district and circuit courts, then held by the district judges and the justices of the Supreme Court, resumed their jurisdiction in the South, under the direction of the Presi- dent, as fast as the provisional organizations were effected.'^* Congress, by an act passed July 23d, 1866,'8 divided them into judicial circuits, and the Senate confirmed nominations by the President of district judges, district attorneys, and marshals for them.^" The Chief-Justice himself, and Mr. Justice Wayne, the other Supreme Court justice assigned to hold court there, declined themselves to sit in these States while the protection of the army was needed.^i On April 3d, 1866, the Supreme Court ordered that the writs of errors and appeals from the circuit and district courts, in the States previously declared to be in rebellion, be called at the next term.^^ Meanwhile, public sentiment in the North was crystallizing against Johnson; and his opponents in Congress consequently increased in power. An act to continue the former Freedmen's Bureau, which was vetoed by him July 16th, 1866, was on the same day re-passed by the necessary two-thirds of both houses.^ On the 23d, Congress passed the following — '8 McPherson, History of the Ke- Supplement to the Keconstruction construction, pp. 194-196. Bill, July 19, 1867. " U.S. V. Anderson, 9 Wall., 56. The ^i See letter of Chief Justice Chase Protector, 12 Wall., 700; Adgeru. Al- to President Johnson, Oct. 12, 1865. son, 15 Wall., 560. Burke d. Milten- (Chase's Decisions, p. 9; Appleton's berger, 19 Wall., 519, 525; March 2, AnnualEncyclopsedlafor 1866, p. 514;) 1867, 14 St. at L., 422, § 2. and Address of Chief Justice Chase to '8 Dunning, The Constitution in the bar of North Carolina, in June, Beconstruction, Pol. Sc. Q., vol. ii, 1867, Chase's Decisions, p. 152. p. 570. '^ 3 Wall., viii. '» 14 St. at L., 209. ^^ McPherson, History of the Be- so Johnson's veto of the Second construction, p. 151; 14 St. at L. 361. 238 BECONSTEtrcTioN. [chap. n. "Joint Resolution restoring Tennessee to her relations to the Union : — " Whereas in the year eighteen hundred and sixty one, the govern- ment of the State of Tennessee was seized upon and taken possession of by persons in hostility to the United States, and the inhabitants of said State, in pursuance of an act of Congress, were declared to be in a state of insurrection against the United States ; and whereas said State government can only be restored to its former political relations in the Union by the consent of the law-making power of the United States ; and whereas the people of said State did, on the twenty-second day of February, eighteen hundred and sixty five, by a large popular vote, adopt and ratify a constitution of government whereby slavery was abolished and all ordinances and laws of secession, and debts contracted under the same, were declared void; and whereas a State government has been organized under said constitution which has ratified the amend- ment to the Constitution of the United States abolishing slavery, also the amendment proposed by the Thirty -ninth Congress, and has done other acts proclaiming and denoting loyalty ; Therefore " Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the State of Tennessee is hereby restored to her former proper,' practical relations to the Union, and is again entitled to be represented by Senators and Representatives in Congress." The next day, the President approved the bill ; but accompanied his approval with a message protesting against the preamble : — "Among other reasons recited in the preamble for the declarations contained in the resolution is the ratification by the State government of Tennessee, of ' the amendment to the constitution of the United States abolishing slavery, and also the amendment proposed by the Thirty-ninth Congress.' If, as is also declared in the preamble, ' said State government can only be restored to its former political relations in the Union by the consent of the law-making power of the United States,' it would really seem to follow that the joint resolution which, at this late day has received the sanction of Congress, should have been passed, approved and placed on the statute books before any amend- ment to the Constitution was submitted to the Legislature of Tennessee for ratification. Otherwise, the inference is plainly deducible that while, in the opinion of Congress, the people of a State may be too strongly disloyal to be entitled to representation, they may, nevertheless, during the suspension of their ' former proper practical relations to the Union,' have an equally potent voice with other and loyal States in propositions § 38.] ENCROACHMENTS BY CONGRESS ON THE EXECUTIVE. 239 to amend the Constitution, upon whicli so essentially depend the stabil- ity, prosperity, and very existence of the nation."*^ During the summer, Johnson weakened his policy in the North by a series of injudicious speeches made by him when he was " swinging around the circle," as well as at "Washington. In one of these he said : " We have seen hanging upon the verge of the Government, as it were, a body called, or which assumes to be, the Congress of the United States, while, in fact, it is a congress of only a part of the States." ^ The elections in the fall largely increased the Republican majority in the loyal States, while the excluded States went heavily Democratic, and rejected the terms of readmission which had been proposed to them. At the meeting of Congress in December, 1866, the dominant party now felt that they had gained sufficient strength to over- come the influence of the Executive. The control of the purse and the means of starving the President into submission were in their hands, for use if they believed that their constituents would approve such a revolutionary measure. Each house had the ex- clusive power to determine as to the admission or exclusion of its members ; but the first steps in the organization of the lower house and the consequent control of the later proceedings lay in a majority of those who were on the roll which was called by the clerk of the preceding body. It was known that Johnson had considered the plan of recognizing a House and Senate in the next Congress composed of the members from the Southern States and the followers of his policy in the North. In that way, he might have obtained a quorum of both, and could then have claimed that the Northern majority was a rump which had no legal right to act alone. As commander-in-chief of the army, he might use force to install the bodies which he recognized in the Capitol, leaving the rest to organize in some outside hall. It was rumored that he had sought to tamper with General Grant in order to induce the 81 MoPherson, History of the Ee- between Johnson's speeches, which construction, pp. 152, 153. were usually undignified and seme- ns Johnson's speech from the exeou- times vulgar, and his veto messages tive mansion at Washington, Aug. 18, and other State papers, which are dig- 1866, quoted in his articles of impeach- nified and masterly. In the prepara- ment, X (Impeachment Trial, vol. i, tion of the latter he had the assistance p. 8). There is a marked diilerence of Seward and Stanbery. 240 KECONSTKTJCTION. [chap. II. latter to aid him in such a contest, but that Grant not only refused aid but threatened to driye such a body out of the Capitol at the point of the bayonet, though recognized by Johnson as a lawful Congress. ^ 86 Grant testified as follows before the House Committee on the Judiciary, July 18, 1867 : " Q. Have you at any time heard the President make any remarks in reference to admission of members of Congress from the rebel States into either house? A. I cannot say positively what I heard him say on the subject. I have heard him say as much, perhaps, in his published speeches last summer, as I ever heard him say at all upon that subject. I have heard him say — and I think I have heard him say it twice in his speeches — that if the North carried the elections by members enough to give them, with the southern mem- bers, a majority, why would they not be the Congress of the United States ? I have heard him say that several times. "By Mr. Williams: Q. When you say ' the North ' you mean the demo- cratic party of the North, or in other words the party favoring his policy ? A. I mean if the North carried enough members in favor of the admission of the South. I did not hear him say that he would recognize them as Con- gress. I merely heard him ask the question, ' Why would they not be the Congress? ' "By the Chairman: Q. When did you hear him say that? A. I heard him say that in one or two of his speeches. I do not recollect where. "By Mr. Boutwell: Q. Have you heard him make a remark kindred to that elsewhere? A. Yes; I have heard him say that aside from his speeches, in conversation. I cannot say j ust when. It was probably about that same time. " Q. Have you heard him, at any time, make any remark or suggestion concerning the legality of Congress with the Southern members excluded? A. He alluded to that subject fre- quently on his tour to Chicago and back last summer. His speeches were generally reported vrith considerable accuracy. "Q. Did you hear him say anything in private on that subject, either dur- ing that trip or at any other time? A. I do not recollect specially. " Did you at any time hear him make any remark concerning the ex- ecutive department of the govern- ment? A. No. I never heard him allude to that. " Q. Did you ever hear him make any remark looking to any controversy between Congress and the Executive? A. I think not " (MePherson, History of the Beconstruction, p. 303). Blaine was convinced that Grant's testimony established the falsity of this rumor about Johnson (Twenty Years in Con- gress, vol. ii, pp. 343-344). On the other hand Grant afterwards told the following story, as reported by Chauncey M. Depew, in The New York Sun of Oct. 21, 1865, and corrobo- rated by Frederick D. Grant. " He had perfected a scheme to ac- complish this result, and with General Grant's assistance its success was as- sured. He would by proclamation direct the rebel States to send to Washington their full quota of Senar tors and Kepresentatives. He had as- surances from enough members from the North, who, united with them would make a quorum of one House at least if not both. The Congress thus § 38.] ENCROACHMENTS BY CONGRESS ON THE EXECUTIVB. 241 One of tlie first steps of Congress was to provide for the legality of the organization of the succeeding House of Representatives in favor of the North. A bill passed the House, December 11th, 1866, and the Senate, February 1st, 1867, by a vote of more than two-thirds of each, which became a law without the President's signature, and provided : — "That before the first meeting of the next Congress, and of every subsequent Congress, the clerk of the next preceding House of Eepre- sentatives shall make a roll of the representatives-elect, and place thereon the names of all persons claiming seats as representatives-elect from States which were represented in the preceding Congress, and of such persons only, and whose credentials show that they were regularly elected in accordance with the laws of their States respectively, or the laws of the United States." *' A bill was also passed directing that the Fortieth Congress meet on March 4th, 1867, immediately upon the close of the President by the Constitution, and it he would refuse to obey the Comman- der-in-chief. Gen. Grant said that under such circumstances he most certainly would. " Shortly afterward, the President sent for Grant and said to him that the relations of our Government with Mexico were very delicate, and he wished him to go to the City of Mexico at once on a very important mission. The General knew that this was to get him out of the way and put it in the power of the President to call as his successor to "Washington some ofScer upon whom he could rely. He replied that if the appointment was a diplomatic one, he declined it. If it was a military one, he refused to obey, because the General of the army could not be ordered to a for- eign country with which we are at peace. The interview was a stormy one, but the subject was dropped." See as to this last suggestion by John- son to. Grant, Blaine, Twenty Years in Congress, vol. ii, p. 351. " 14 St. at L. 397. formed he would recognize and install at the Capitol. If the other Northern members did not choose to join they would be a powerless rump meeting in some hall. To the General's sug- gestion that this would start the civil war afresh, the President replied: 'They who do it will be rebels, but if you sustain me resistance is impos- sible.' " He appealed to Grant to stand by him in the crisis and they would be the saviors of the republic. After endeavoring tor a long time in vain to convince the President of the folly of such a course and its certain failure, no matter who sustained it. Grant finally told him that he (Grant) would drive the Congress so constituted out of the Capitol at the point of the bayonet, give possession of the build- ing to the Senators and Bepresenta- tivestrom the loydl States and protect them. If necessary he would appeal to the country and the army he had so recently mustered out of service. Mr. Johnson asked him if he did not recognize the powers vested in the 242 BECONSTEXrCTION. [CHAP. II. Thirty-ninth Congress, so that the President might not have a vacation between March and December in v/hich to act without congressional control. ^^ The powers upon which the President relied in his controversy- were the power to pardon those whom Congress had determined to deprive of political rights ; the power to remove frojn oiSce such Federal officials as opposed his views; and the power to control the army as commander-in-chief. Each of these powers was attacked in turn. The power to pardon was expressly granted by the Constitution.^^ An act passed during the war^" had expressly authorized the President to grant pardons by proc- lamation. TMs statute was repealed by a vote of more than two- thirds of both houses, and the repeal became a law without the signature of the President.^^ It was generally believed that this repeal was ineffectual, since the constitutional power to pardon might be exercised by proclamation as well as by letters patent; and the President after the repeal exercised the power by proc- lamation as freely as before.^^ On September 7th, 1867, and July 4th, 1868, he issued proclamations which pardoned aU except those under indictment for treason or other felony; and on December 25th, 1868, by proclamation he pardoned all the rest.'^ The Fourteenth Amendment, however, prevented his pardons from restoring to full civil rights the most influential persons affected without the consent of two-thirds of Congress. Such relief from disability was extended by Congress sparingly during his administration. Since then Congress has gradually removed the disabilities of nearly all. The powers of the President as Commander-in-Chief were effectually limited. A section in the Army Appropriation bill provided that the headquarters of the general of the army should be in WasMngton; that all orders and instructions relating to 83 14 St. at L. 377. 92 gee Blaine, Twenty Tears of Con- s' Constitution, Art. II, Sec. 2. gress, vol. ii, pp. 281, 282. This sub- s') Act of July 17, 1862; 12 St. at L. jeot will be considered subsequently 592. in the chapter on The Executive 91 14 St. at L. 377. The bill passed Power. the House, Dec. 3, 1866, and the Sen- as McPherson, History of the Be- ate, Jan. 7, 1867. McPherson, His- construction, pp. 342, 344, 419. tory of the Keoonstruction, p. 183. § 38.] ENCROACHMENTS BY CONGRESS ON THE EXECUTIVE. 243 military operations issued by the President or Secretary of War shoiild be issued through liim ; that he should not be removed or assigned to duty elsewhere, except at his own request with the previous approval of the Senate ; that any orders relating to mili- tary operations issued by the President or Secretary of War, other- wise than through him, should be null and void; that any officer who issued such orders should be deemed guilty of a misdemeanor in office; and that any officer of the army who knowingly trans- mitted or obeyed such orders should be liable to imprisonment upon conviction in any court of competent jurisdiction. This practically made General Grant commander-in-chief, and reduced the powers of the President in this respect to the level of those of the British queen. Another section in the same bill directed that the militia then organized in the excluded States should be disbanded, and that no further militia be organized in them until further authorized by Congress.^ The President signed the biU, March 2d, 1867, but sent this protest in a message to the House : — "These provisions are contained in the second section, which in cer- tain cases virtually deprives the President of his constitutional func- tions as commander-in-chief of the army, and in the sixth section, which denies to ten States of the Union their constitutional right to protect themselves, in any emergency, by means of their own militia. These provisions are out of place in an appropriation act. I am com- pelled to defeat these necessary appropriations if I withhold my signa- ture from the act.' ' °^ At the same time, the power of the Executive to control his subordinates was restrained by the Tenure of Office bill, which made the consent of the Senate necessary to the removal of all officers to whose appointment their consent was required, except members of the cabinet in certain cases.^ This bill was vetoed by the President as unconstitutional, but passed again over his veto. An alleged violation of it was the main ground of the ar- ticles of impeachment subsequently presented against him.^' '^ 14 St. at L., 486, 487. Both these tionality of this act will be considered sections were subsequently repealed. subsequently. 95 McPherson, History of the Ke- ^^ 14 St. at L., 430. construction, p. 178. The constitu- " The constitutionality of this act will be considered subsequently. 244 EECONSTEUCTION. [CHAP. H. Meanwhile, proceedings had been instituted at this time to investigate the conduct of the President to see if he had com- mitted any impeachable offense ; more, however, with the object by the majority of intimidating him than with the intention of an actual impeachment,^^ which was not seriously contemplated till after his attempt to remove Stanton from the Department of War in the following summer. To guard against the danger of his filling the Supreme Court with men who construed the Consti- tution in the same manner as his advisers, an act had been passed in the previous July which forbade any more appointments to that bench until after three vacancies had occurred.^ The working majority in both Houses of Congress was further strengthened by the admission of the State of Nebraska, over a veto, February 8th, ISeT.i"" The veto of the bill for the admis- sion of Colorado was not overridden.^"^ A bill granting the right of suffrage to negroes in the District of Columbia was likewise ve- toed, and then passed by the requisite two-thirds of each House.^"^ In March, 1867, the majority had sufficient strength to pass two reconstruction acts over the veto of the President, who claimed that they were unconstitutional. The title and preamble of the first was : — ' ' An Act to provide for the more efficient government of the rebel States. Whereas no legal State governments or adequate protection for life or property now exists in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arlsansas ; and whereas it is necessary that peace and good order should be enforced in said States until loyal and repub- lican State governments can be legally established : Therefore, Be it enacted,'' "That said rebel States shall be divided into military dis- tricts and made subject to the military authority of the United States, as hereinafter prescribed." The President was instructed to assign to the command of each dis- trict an officer of the army not below the rank of Brigadier-General, 88 The proceedings are briefly re- ^^ Act of July 23, 1866. U St. at ported, in McPlierson, History of the L., p. 209. Eeconstruction, pp. 187-190. They w" Act of Feb. 9, 1867. will be considered subsequently in the wi MoPherson, History of the Ee- chapter on Impeachment. construction, p. 164. 102 Act of Jan. 8, 1867. § 38.] EECONSTEUCTION ACTS. 245 and to detail a sufficient military force to enable him to perform his duties and enforce his authority. It was the duty of the officer to preserve order and to punish " all disturbers of the public peace and criminals, and to this end he may allow local civil tribunals to take jurisdiction of and to try offend- ers, or, when in his judgment it may be necessary for the trial of offenders, he shall have power to organize military commissions or tribunals for that purpose ; and all interference under color of State authority with the exercise of military authority under this act shall be null and void." The approval by the officer in command of any sentence of the military commission or other tribunal affecting the life or liberty of any person, was required before its execution, and the approval of the Pre- sident was required before the execution of any sentence of death. It was provided : — "That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitu- tion of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for participation in the rebellion or for felony at common law, and when such constitution shall provide that the elective franchise shall be enjoyed by all such per- sons as have the qualifications herein stated for electors of delegates, and when such constitution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates, and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have ap- proved the same, and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States,, proposed by the Thirty-ninth Congress, and known as Article Fourteen, and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and Senators and Eepresentatives shall be admitted therefrom on their taking the oaths prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State : Provided, That no per- son excluded from the privilege of holding office by said proposed amendment to the Constitution of the United States shall be eligible to election as a member of the convention to frame a constitution for any of said rebel States, nor shall any such person vote for members of such 246 BECONSTETJCTION. [CHAP. II. convention." " That until the people of said rebel States shall be by law admitted to representation in the Congress of the United States, any civil governments which may exist therein shall be deemed pro- visional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same ; and in all elections to any office under such provisional gov- ernments all persons shall be entitled to vote, and none others, who are entitled to vote under the provisions of the fifth section of this act ; and no person shall be eligible to any office under any such provisional governments who would be disqualified from holding office under the provisions of the third article of said constitutional amendment.""' The Fortieth Congress immediately passed over Johnson's veto a supplementarj' reconstruction act with specific provisions for the registration in accordance with the former act and for the lan- guage of a test-oath then to be administered. This act fm'ther provided that the State conventions should have the power to pro- vide for taxation to pay their expenses.^"* A second supplement was passed over the President's veto, which declared that it had been the true intent and meaning of the former reconstruction acts " that the governments then existing in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas and Arkansas, were not legal State governments ; and that thereafter said governments, if con- tinued, were to be continued subject in all respects to the military commanders of the respective districts, and to the paramount authority of Congress." Power was given to each district com- mander, subject to the disapproval of the general of the army, to remove any officer or person holding any civil or military office in such district under any power granted by any so-called State or municipal government. The acts of officers of the army in previously removing such officers were confirmed. It was made the duty of the district commanders to remove from office all persons disloyal to the government of the United States, or who used their official influence in any manner to hinder, delay, prevent or obstruct the due and proper administration of the reconstruction acts ; and finally it directed that " No district com- mander or member of the Board of Registration, or any of the W3 Act of March 2, 1867, 14 St. at m^ Act of March 23, 1867, 15 St. at L-. 428. L., 2. § 38.] EECONSTEUCTION ACTS. 24T officers or appointees acting under them, shall be bound in his action by the opinion of any civil officer of the United States." ^"5 This last provision was intended to weaken the authority of the Attorney-General, who, in his previous opinions,^"^ had criti- cized the action of some of the district commanders and had lim- ited the construction of the acts in favor of constitutional rights and civil liberty. In Johnson's veto he argued that tins forbade them to even follow a judicial decision when in conflict with a military order. " These military appointees would not be bound even by a judicial opinion. They might very well say, even when their action is in conflict with the Supreme Court of the United States, ' that court is composed of civil officers of the United States, and we are not bound to conform our action to any opinion of any such authority.' " 1°'' By these acts the late Confederate States, with the exception of Tennessee, were not only excluded from representation in Congress, but absolutely denied civil gov- ernment and placed under military rule of the most despotic character until they had, in addition to the ratification of the Fourteenth Amendment, extended the right of suffrage to the colored race; and the army was used to compel immediate action to that effect. After their enactment over his veto, Johnson executed the statutes with fidelity, although he believed that they were unconstitutional. Under them the Southern States were treated as conquered provinces, and twelve millions of people were ruled by military satraps, who interfered with and overruled in the most arbitrary manner the acts of the State executives, legislatures and judiciary, as well as of those who had formerly exercised the right of suffrage there. State governors,^"^ State judges,^"^ a State attorney-gen- ws 15 St. at L., 14. ' In Louisiana, June 3, 1867 (Davis, los 12 Op. A. G., 186, 193 ; quoted Eise and Fall of the Confederate Gov- infra, note 112. ernment, vol. il, p. 756). In Texas, 1" Johnson's veto of the Second July 30, 1867 (McPherson, History of Supplement to the Keconstruotion the Eeconstruction, p. 323). Act, July 19, 1867. i"' In South Carolina, in September, ws In Mississippi, June 15th, 1868 1867 (Davis, Kise and Fall of the Con- (Davis, Kise and Fall of the Confeder- federate Government, vol. ii, p. 744). ate Government, vol. ii, p. 754). In In Louisiana, March 27, 1867 (McPher- Virginla, March, 27, 1869 (McPherson, son. History of the Beoonstruction, p. History of the Beoonstruction, p. 425). 206). In Virginia also, (Cox, Three 248 BECONSTEUCTION. [chap. II. eralii" and a State treasiirer,ii^ as well as local officers of every description, were removed, and in many cases soldiers detailed to discharge their duties, to administer the laws of the State, to deter- mine controversies affecting liberty and property without any quali- fications from previous study or experience in their systems of jurisprudence, and to collect and disburse the taxes and other revenues of the State without filing any bond.^i^ Legislatures Decades of Federal Legislation, p. 489). 110 In Louisiana, March, 27, 1867 (McPherson, History of the Eeoon- struction, p. 206). 111 Attorney-General Stanbery, 12 Op. A. G., 194. Davis, Else and Fall of the Confederate Government, vol. ii, p. 759. 112 <'Iq one of these districts, the governor of a State has been deposed under a threat of military force, and another person, called a governor, has been appointed by a military com- mander to fill his place. Thus pre- senting the strange spectacle of an ofBcial intrusted with the chief power to execute the laws of the State whose authority is not recognized by the laws he is called upon to execute. " In the same district, the judge of one of the criminal courts of the State has been summarily dealt with. In this instance, the judge has, by mili- tary order, been ej ected from his oflfice, and a private citizen has been ap- pointed judge in his place by military authority, and is now in the exer- cise of criminal jurisdiction ' over all crimes, misdemeanors and offences' committed within the territorial juris- diction of the court. This military appointee is certainly not authorized to try any one for any offence as a member of a military tribunal, and he has just as little authority to try and punish any offender as a judge of a criminal court of the State. It hap- pens that this private citizen, thus placed on the bench, is to sit as the sole judge in a criminal court whose jurisdiction extends to cases involving the life of the accused. "If he has any judicial power in any case, he has the same power to take cognizance of capital cases, and to sentence the accused to death, and order his execution. A strange spectacle, when the judge and the criminal may very well 'change places ' ; for if the criminal has un- lawfully taken life, so too does the j udge. This is the inevitable result, for the only tribunal, the only judges, it they can be called judges, which a military commander can constitute and appoint under this act, to inflict the death penalty, is a military court composed of a board, and called in the act ' a military commission.' "I see no relief for the condemned against the sentence of this agent of the military commander. It is not the sort of court whose sentence of death must be first approved by the commander and finally by the Presi- , dent, for that is allowed only where the sentence is pronounced by a ' mili- tary commission.' Nor is it a sen- tence pronounced by the rightful court of a State, but by a court and by a judge not clothed with authority under the laws of the State, but con- stituted by the military authority. As the representative of this military authority, this act forbids interference, ' under color of State authority,' with the exercise of his functions." (12 Op. §38.] MILITARY GOVERNMENT OF THE SOUTH. 249 were forbidden to ineet."^ xhe people were, in some cases, for- bidden to elect local officers,"* or even to go through the form ■ of choosing presidential electors ; "^ and voters qualified by the State constitutions were disfranchised by an ex post facto law upon charges of treason of which they had never been convicted. Taxation, national and local, "^ without representation, was im- posed upon them. A tribute was thus levied by the imposition of a cotton-tax, which affected no property outside of the dis- franchised States, and escaped annulment by a tie vote of the Supreme Court. "^ Taxes imposed by State legislatures were reduced or set aside."^ Public meetings were suppressed."^ The right of the people to bear arms was infringed by the act of Con- gress disbanding the State militia^" and the orders of generals addressed to private citizens.^^i Meanwhile, when it suited the pleasure of the district commanders, State officers were obliged to continue to discharge their functions even after the expiration of their terms.^^ Judges who had been sworn to administer the A. G., pp. 193-194. See also ibid., pp. 186-187.) On March 29th, 1869, General Stoneman reported : that out of 5,446 offices in Virginia 139 of the incum- bents were able to take the test-oath, and consequently were undisturbed; 532 had been filled by his predecessor, and 1,972 by himself; and that 2,613 remained, the incumbents of which were disqualified by Congress, and that he was unable to find eligible men who were competent to discharge their duties. (McPherson, History of the Eeoonstruction, p. 425.) "8 See Davis, Eise and Fall of the Confederate Government, vol. ii, pp. 746, 757 ; McPherson, History of the Eeoonstruction, p. 325. 1" McPherson, History of the Re- construction, pp. 208, 428. "5 In Texas, Sept. 29, 1868, ibid., p. 429. "^ Cox, Three Decades of Federal Legislation, p. 550. "' The Act of March 7, 1864 (13 St. at L., 14), first imposed a tax of two cents a pound on unmanufactured cotton. This was continued by the act of June 30, 1864 (ibid., p. 223) ; increased to three cents a pound by the act of July 13, 1866 (14 St. at L., 98) ; reduced to two and a half cents a pound by the act of March 2, 1867 (ibid., p. 169); and repealed by the act of Feb. 3, 1868 (15 St. at L., 34). The constitutionality of the tax was affirmed by a divided court Feb. 20, 1871, in the unreported case of Far- mington o. Saunders, after two argu- ments, the first in December, 1869, in which its opponents claimed that it was a direct tax and a tax upon exports. "8 McPherson, History of the Ee- oonstruction, p. 429. 119 McPherson, History of the Re- construction, p. 429 ; Davis, Eise and Fall of the Confederate Government, vol. ii, pp. 733. 120 Act of March 2, 1867, 14 St. at L., 487; supra, over note 95. 121 McPherson, History of the Re- construction, pp. 204, 316. 122 McPherson, History of the Re- construction, pp. 206, 208, 428. 250 EECONSTEUCTION. [CHAP. H. laws of their States were directed to violate them;^^ to empanel juries out of a class disqualified by their State statutes ; •'^ to take testimony which was by statute made incompetent ; and to deny remedies to which suitors were entitled by law ; and in some cases they were imprisoned for their refusal.^^ Punishments prescribed by the State statutes were forbidden.^^ A new code of penal law was in some cases set up by the will of the general.^'^ Permission to pardon, as provided by the State constitutions, was in some cases given to the State governors, and in others withheld.^^ And many persons, in violation of the constitution,^^ were tried upon criminal charges before military commissions and imprisoned under sentences thus illegally imposed. In one case a civilian was sen- tenced to death by such a commission, although he was at the time under indictment by the State court for the same offences ; and the Attorney-General advised the President to approve the sentence ; but the execution was prevented by an escape,^^" which it may be hoped was collusive. The interference of the military with the civil government was not confined to the maintenance of order, the elevation of the colored race, and the promotion of the policy of Congress. The administration of justice relating to private rights between pri- vate citizens was arbitrarily controlled. Executions and judicial sales were stayed.^^^ Exemptions from attachments, arrests, and executions, unknown to the State laws, were ordered.^^^ Decrees 123 See Davis, Kise and Fall of the an opinion of Attorney General Hoar, Confederate Government, vol. ii, p. sustaining such a practice. See 13 Op. 733. A. G., 59; McPherson, History of the 1"^ Davis, Kise and Fall of the Con- Beconstruction, p. 475. federate Government, vol. ii, p. 744; i^o gge Weaver's Case, 13 Op. A. G., Opinion of Henry Stanbery, 12 Op. 59; McPherson, History of the Becon- A. G., 186, 187. struction, p. 475. M.S. letter by E. 126 McPherson, History of the Be- B. Hoar to the writer, Oct. 1, 1894. construction, pp. 202-204. isi Such orders in South Carohna 126 McPherson, History of the Be- were justified under an act of the construction, p. 204. Justification for State Legislature, which was after- many of these acts was sought under wards held unconstitutional (State the Civil Bights Bill, which had not v. Carew, Kich. S. C. 13 Law. 12 Eq. then been declared unconstitutional. 277). 12' Ibid. 132 Order of General Sickles in 12* Ibid. North and South Carolina, April 11, i29Ex-parteMilligan,4WaU.,3. For 1867. McPherson, History of the Ee- § 38.] MILITARY GOVBENMBNT OF THE SOUTH. 251 of State courts in suits affecting rights of property were set aside,i33 and in one case the Federal army resisted the enforcement of the decree of a Federal court.^^ In marked contrast with this conduct of other district command- ers was that of General Winfield Scott Hancock, whom, on August 26th, 1867, Johnson detailed to the command of Louisiana and Texas, in the place of General Ploilip H> Sheridan. His first step was the promulgation, on November 29th, 1867, of his famous Gen- eral Order No. 40, which is replete with the doctrines essential to constitutional liberty : — " The General Commanding is gratified to learn that peace and quiet reign in this Department. It wUl be his purpose to preserve this con- dition of things. As a means to this great end, he regards the mainte- nance of the civil authorities in the faithful execution of the laws as the most efficient under existing circumstances. In war, it is indis- pensable to repel force by force, and overthrow and destroy opposition to lawful authority. But when insurrectionary force has been over- thrown and peace established, and the civil authorities are ready and willing to perform their duties, the military power should cease to lead, and the civil administration resume its natural and rightful dominion. Solemnly impressed with these views, the General announces that the great principles of American liberty are still the lawful inheritance of the people, and ever should be. The right of trial by jury, the habeas corpus, the liberty of the press, the freedom of speech, the natural rights of persons, and the rights of property, must be preserved. "Free institutions, while they are essential to the prosperity and happiness of the people, always furnish the strongest inducements to peace and order. Crimes and offences committed in this district must be referred to the consideration and judgment of the regular civil tri- bunals, and those tribunals will be supported in their lawful juris- diction. construction, pp. 202-204. See also . i^* This action in North Carolina the order in Virginia, March 12, 1868, was disapproved at Washington, and ibid. p. 317. held by the Acting Attorney-General 133 Davis, Rise and Pall of the Cton- John M. Binokley, to be " simply a federate Government, vol. ii, p. 739, case of high misdemeanor, legally 743-744. These proceedings were contemplated." Davis, Kise and Pall held by the Supreme Court to be void of the Confederate Government, vol. because' not authorized by the Kecon- ii, p. 739 ; Appleton's Annual Encyclo- struotion Acts, Eaymond v. Thomas, ptedia for 1867, p. 548. 91 U. S. 712. 252 KECONSTEUCTION. [CHAP. II. " Should there be Tiolations of existing laws which are not inquired into by the civil magistrates, or should failure in the administration of justice by the courts be complained of, the cases will be reported to these headquarters, when such orders will be made as may be deemed necessary. While the General thus indicates his purpose to respect the liberties of the people, he wishes all to understand that armed insurrec- tion or forcible resistance to the law wUl be instantly suppressed by arms." This -was followed by a series of special orders in which he forbade interference by the military at the polls, disclaimed judicial functions in civil cases and sustained the jurisdiction of the civil courts over the rights of private property and the trial of offenses against the State laws.^^ The day after President Grant's in- auguration he removed Hancock from this command and sent Sheridan back to follow the practice of the other district com- manders.^^ Thus, under the intimidation of armed force at the polls, State conventions were elected by the ignorant blacks and by those of the white race who were least trained in public affairs and had little interest in the protection of private property and the maiu- tenance of order. These organized under the control of the army, which in some cases was obliged to interfere and keep order in their proceedings,^^ prepared new State constitutions in accord- ance with the commands of the dominant party at Washington, and ratiiied the Fourteenth Amendment to the Federal Constitution. On June 22d, 1868, the State of Arkansas was admitted to repre- sentation in Congress by a bill passed over the President's veto, which was based upon objections to the unconstitutional principle therein recognized, and also to the necessity of legislation upon a subject which each House of Congress had the power to deter- mine for itself. The recitals said that the people of the State in pursuance of the reconstruction acts, had " formed and adopted 135 General Order, No. 40, and Han- construction, p. 324. They are said cock's letter in defence of it to Gover- to have been written by Jere. 8. nor Pease of Texas, which is a master- Black. piece of dignified and crushing argu- lae Blaine, Twenty Tears in Con- ment, are republished in Forney's gress, vol. iii, p. 299. Life of Hancock, pp. 232-246. See ^^' Davis, Rise and Fall of the Con- also MePherson, History of the Ke- federate Government, vol. ii, p. 749. § 38.] REHABILITATION OF SEVEN STATES. 253 a Constitution of State government, -which is republican," and that its legislature had duly ratified the Fourteenth Amendment. It then enacted, in terms similar to those in the statutes admitting new States : — " That the State of Arkansas is entitled and admitted to representa- tion in Congress, as one of the States of the Union, upon the following fundamental condition : That the Constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the Constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted, under laws equally applicable to all the inhabi- tants of said State ; Provided, That any alteration of said Constitution prospective in its effect may be made in regard to the time and place of residence of voters." ^" On June 25th, 1868, an act, substantially similar to that for Ar- kansas, admitted to representation in Congress the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama and Flor- ida. This provided that it should only take effect as to each State upon the ratification of the Fourteenth Amendment by its legislature. The admission of Georgia to representation was further conditioned upon the annuUment of certain provisions in the State constitution which impaired the obligation of contracts, and the assent by the legislature to such condition.^^^ The States affected by these acts promptly ratified the amendment.^^" On July 21st, 1868, a joint resolution was passed by Congress, declar- ing that the amendment had been ratified, and was a part of the Constitution of the United States.^*' On July 28th, military rule was withdrawn from all the States except Virginia, Mississippi and Texas."^ Delegations from all who had thus ratified the Fourteenth Amendment, were promptly admitted to Congress. On July 20th, Congress passed, over the veto of President John- i'' 15 St. at L., p. 72. (McPherson, History of the Becon- 139 15 St. at L., p. 73. struotion, pp. 353, 428, 429). i« Florida had so acted, June 9, "i Ibid., p. 380. 1868, before the passage of the bill. "^ Grant's General Order of that North Carolina ratified, July 1, Louisi- date (McPherson, History of the Ke- ana and South Carolina, July 9, Ala- construction, p. 422). bama, July 13, Georgia, July 21 254 KECONSTBTJCTION. [CHAP. n. son, a joint resolution, which declared "that none of the States whose inhabitants were lately in rebellion shall be entitled to rep- resentation in the electoral college " until after compliance with the Reconstruction legislation.^*^ The platform upon which Grant was elected President con- tained the plank : — ' ' The guaranty by Congress of equal suffrage to all loyal men at the South was demanded by every consideration of public safety, of grati- tude, and of justice, and must be maintained ; while the question of suffrage in all the loyal States properly belongs to the people of those States." "" But Eepublicans as well as Democrats had protested against the injustice of forcing upon the South a rule which the North was unwilling to accept.^^ The blacks above Mason and Dixon's line were too few to be able to out-vote the rest. Experience has proved that the education of one or more generations of freedmen had fitted them to exercise the right of suffrage which some States had previously extended to them. At the session of Congress im- mediately after the presidential election, the Fifteenth Amendment was introduced. On February 25th, 1869, it was sent to the State legislatures for consideration in its final form : — ' ' The right of citizens of the United States to vote shall not he denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have power to enfore this article by appropriate legislation." The ratification of this amendment was now made an additional condition to the rehabilitation of Virginia, Mississippi and Texas.^^ The task was not too burdensome, since they thus helped to fasten upon the other States that which Congress had previously com- pelled them to assume themselves. Upon compliance with this and the provisions of the previous reconstruction acts, they were admitted to representation, Virginia, on January 28th,i*' Missis- sippi, February 23d,i*8 and Texas, March 30th, 1870.i*9 Each of "8 McPherson, History of the Be- "6 Act of April 10, 1869; 16 St. at construction, p. 378. L., p. 40. "* Republican National Hatform, "' 16 St. at L., p. 63. adopted at Chicago, in May, 1868. "s 16 St. at L., p. 67. 1" Blaine, Twenty Years in Con- i« 16 St. at L., p. 80. gress, vol. ii, p. 412. § 38.J EEHABILITATION OP VIEGINIA, MISSISSIPPI, TEXAS. 255 the acts concerning these States stated in its preamble that the people had framed and adopted a Constitution of State govern- ment which was republican, and the legislature had ratified the two new amendments, and that "the performance of these several acts in good faith is," in the case of Virginia " was," ^^^ a con- dition precedent to the representation of the State in Congress." i^i The body of each act stated that the admission to representation was — "upon the following fundamental conditions: First that the" State ' ' Constitution shall never be so amended as to deprive any citizen or class of citizens of the United States of the right to vote, who are entitled to vote by the Constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all the inhabitants of said State : Provided that any alteration of said Constitution, prospective in its effects, may be made in regard to the time and place of residence of voters. Second, That it shall never be lawful for the said State to deprive any citizen of the United States, on account of his race, color, or previous condition of servitude, of the right to hold office under the Constitution and laws of said State, or upon any such ground to require of him any other qualifications for ofHce than such as are required of all other citizens. Third, That the State Constitution shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the school rights and privileges secured by the Constitution of said State." ^'^ The last condition referred to the establishment of a system of free education for all children in the State. A hitch in the proceedings, caused by the action of her legis- lature, made Georgia the last State to obtain rehabilitation. After her ratification of the Fourteenth Amendment and the admission of her representatives to the Thirty-ninth Congress, the legisla- ture, believing the State secure, admitted members who were dis- qualified by the Fourteenth Amendment and ousted from their seats all colored men elected, upon the ground that although the State Constitution gave them the right to vote, they had acquired no right to hold office ; and then rejected the Fifteenth Amend- 150 16 St. at L., p. 63. 1^2 le St. at L., pp. 63, 67, 80. 151 16 St. at L., pp. 67, 80. 256 EECONSTEUCTION. [CHAP. n. ment.^^^ The Supreme Court of the State subsequently held that negroes had the constitutional right to hold office.^^ The Fortieth Congress, iu December, 1869, refused to admit her delegation to either house, but referred their credentials to the Committees on Privileges and Elections.^^^ On December 22d, Grant approved " An act to promote the reconstruction of the State of Georgia." The governor V7as required to reconvene the General Assembly to perfect its organization in conformity with the new statutory requirements. It " declared that the exclusion of any person or persons elected as aforesaid, and being otherwise qualified, from participation in the proceedings of said Senate and House of Rep- resentatives, upon the ground of race, color or previous condition of servitude, would be illegal and revolutionary, and is hereby pro- hibited." All members were required to take a test-oath, swear- ing that they were not disqualified by the Fourteenth Amendment, under the penalty of punishment by the Federal court for perjury. The ratification of the Fifteenth Amendment was ma,de a further condition to the admission of the State to representation. And the President was directed, on the application of the governor, to employ the army and navy to execute the provisions of the act.^^^ The State was coerced into submission. Her legislature restored the blacks, excluded the disfranchised whites, and ratified the new Amendment. On July 15th, 1870, an act was passed which finally restored to her representation in Congress.^^'^ For the first time since December 20th, 1860, Congress represented all the United States. But military despotism in the South was not ended by the ad- mission of the States to representation in Congress. The govern- ments which had been set in operation by the army were too weak to maintain themselves after its support was removed. Composed of the proletariat, ignorant blacks, led by unscrupulous men of mixed race and the white carpet-baggers ^^ from the North and 153 Blaine, Twenty Years in Con- i^s go called because they were grass, vol. ii, p. 464. supposed to have taken all their prop- is* White V. Clements, 39 Ga., 232. erty with them in a carpet-bag. The 155 Blaine, Twenty Tears in Con- term was originally applied to the gress, p. 464. wild-cat bankers in the West, but has 156 16 St. at L., p. 80. gained an enduring place in history 15'' 16 St. at L., p. 363. by its application to the Northern ad- § 38.] MLLITABY GOVERNMEKT AFTER EECONSTEXJCTION. 257 " scallawags " in the South, who had deserted their own people in the hour of defeat, they looted the public treasuries, and took ven- geance upon their former masters by oppressive taxation and ille- gal pledges of the credit of the States, to obtain money which they might steal. The tax-payers. Union men ^^^ as well as former Confederates, combined against them. Disfranchised as were many, and out-voted as were the rest, the owners of property resorted to violence and intimidation to protect their rights. The White-League and the Ku-Klux Klan spread terror among the negroes; and, upon the call of carpet-bag governors, President Grant sent soldiers to preserve order and supervise elections. The writ of habeas corpus was suspended,!^" and more than six hundred military arrests were made in a few counties of South Carolina during a single year.-^^^ But the use of the army was not confined to the subjugation of the taxpayers. The thieves quarrelled over their plunder ; rival Governors and rival legislatures claimed recognition and authority; and the decision as to the legitimacy of each was submitted to the Federal Attorney-General, whose awards were supported by the army. Even the judges of the Circuit and District Courts of the United States took sides in the disputes ; granted injunctions to assist their partisans ; and, it was charged, shared in the plunder thus obtained. Grant endeavored to persuade the Supreme Court of the United States to detail one of their members to pass upon venturers who moved to the South i^" St. at L., 13, 15. during the period of Keconstruction, i^i Appleton's Annual Encyclopse- amd took the leadership of the Eepub- dla for 1871. The Congressional re- lioan party there. A few among them, port gives an account of the Ku-Klux however, were men of character as Klan, House Beports, No. 22, Parts 1 well as ability. Amongst these was to 13, 4:2d Cong., 2d sess., vol. ii, Feb. Governor Daniel H. Chamberlain of 19, 1872; Senate Reports, No. 41, South Carolina. His career is de- Parts 1 to 13, ibid. House Mis. Doc, scribed by Allen, History of the Ad- No. 23, 40th Cong., 3d sess., vol. i, ministration of Governor Chamber- Jan. 18, 1869. A good account of th« lain. The best account of the situa- organization of the society in North tion, from their point of view, is A Carolina is in the testimony taken Fool's Errand, by one of the Fools upon Governor Holden's impeach- (Albion W. Tourgee) . ment trial, infra. The best history 159 This is admitted by Blaine, of the white outrages in the South Twenty Years in Congress, vol. ii, p. is by Cox, Three Decades of Federal 473. Legislation. 258 BECONSTKUCTION. [CHAP. n. one such controversy ; but with their usual wisdom they declined to interfere.1^2 So great were the disorder and corruption, that five Federal judges in the South, during Grant's administration, were forced to resign so as to escape impeachment by the national House of Representatives. Within five years after the Reconstruction leg- islation the Governors of four of the Southern States, besides a number of State judges and other administrative officers, had been impeached ; ^^^ one of them convicted and removed from oifice ; ^^ a fifth had fled the State to avoid impeachment and a criminal prosecution ; ^^ and an attempt to impeach a sixth ^^ had been almost successful. In Arkansas, before the service of pro- cess, the House began the proceedings by locking the Governor in tlie executive chamber and barricading the door.^®'^ In the same State, two years later, in 1874, two Republican governors and two Republican legislatures, both sides representing a minority of the people, claimed legitimacy. One governor was intrenched in the state-house with militia and cannon for his protection, while the other proclaimed martial law and marched with troops to attack him. The interference of the Federal army protected the man in possession.^^^ The greatest travesties of local self-government took place in Louisiana. There, on August 9th, 1871, the Republican State Convention was organized in the room of the Circuit Court of the United States, and Federal soldiers prevented the admission of any delegate without a pass from the marshal of the United States. During January, 1872, the marshal, supported by the army of the United States, arrested members of the State legislar ture in order to overturn a majority. Later in the same month, a isi Appleton's Annual Encyclopssdia i6* Holden of North Carolina, for 1872, p. 485. iss Bullock of Georgia. 183 Governor Wimam W. Holden of i^s jj,. k. goott of South GaroUna, in North Carolina, in 1871; Harrison 1872. Eeed of Florida, Powell Clayton of n^' Journal of Arkansas House of Arkansas, and Henry C. Warmoth of Kepreseptativesfor 1871; The Brooks- Louisiana. The last three in 1872. Baxter War, by John M. Darrell; At- These proceedings, which give an in- lantic Monthly, vol. xxix, p. 386. structive picture of the times, will be i^s The Brooks-Baxter War, by John described in a subsequent chapter on M. Darrell. Impeachment. § 38.] LOUISIANA. 259 number of State senators were given refuge on an armed revenue cutter of the United States to avoid arrest by the sergeant-at-arms, and thus leave their house incapable of action for want of a quorum.i^^ A few weeks before, Durell, the Circuit Judge of the United States in the same State, enjoined a claimant from acting as governor of Louisiana or asserting any claim to that office ; and finally, when out of court, issued the famous " midnight order," in which he directed the marshal of the United States to take possession of the state-house during the meeting of the legislature, and to exclude all who in his opinion had not been lawfully elected; thus directing him to usurp the most important con- stitutional power of a legislative house, the determination of the qualifications of its members.™ With this order as his banner the marshal led a troop of Federal soldiers to the state-house and by force prevented any from taking part in the organization of the legislature without such credentials as the Federal judge determined to be sufficient.^'^i Finally, on January 4th, 1875, General de Trobriand imitated Charles I ; and, more successful than the King, entered a house of the State legislature with a file of soldiers, arrested and ejected at the point of the bayonet five members with the clerk; and not only obtained immunity, but actually escaped censure from either Congress or his superior officers.^'^^ 165 Appleton's Annual Encyolopse- cyclopaedia for 1876, pp. 494-498, 736- dia, 1871, pp. 472, 473 ; Ibid., for 1872, 742. The white party were finally co- p. 47 ; Cox, Three Decades of Federal erced into the acceptance of what was Legislation, pp. 555, 556. known as the Wheeler compromise. i'» The Supreme Court, for want of By this, the decision as to the con- jurisdiction, denied a writ of prohibi- tested elections was submitted to the tion against this proceeding. Ex parte arbitration of the congressional com- Warmoth, 17 Wall., 64. This order mittee of investigation; and they was condemned in a report of a con- agreed that after the award had gressional committee. House Mis. been ratified by the legislative com- Doc, No. 211, 42d Cong., 2d sess., vol. mittees on elections and qualiflca- iv. An abstract is reprinted in Apple- tions, and by the appropriate houses, ton's Annual Encyclopaedia for 1873, a resolution should be adopted by the pp. 447, 448. legislature recognizing as governor "1 Appleton's Annual Enoyclopsedia the Bepublican Kellogg, whose elec- tor 1872, p. 483. tion was disputed, and declaring that "2 The reports of congressional he and the rest of his government committees and other persons on the would not be disturbed, and he would subject, are printed in Appleton's En- not be impeached for any past official 260 EECONSTKUCTION. [CHAP. II. By such uses of the Federal army under General Grant, civil liberty was denied the South until the end of his two administra- tions, in 1877, when Tilden and Hayes each claimed to be elected President. After the decision of the Electoral Commission was clearly manifest, the Southern representatives, who, by filibus- tering, might have prevented the count of the votes, made a bar- gain with the representatives of Hayes, by which they agreed to withdraw their dilatory proceedings if he would leave their State governments alone. He carried out the contract, thus desert- ing the Southern candidates who had aided him in securing his position, and each of whom had obtained more votes for gov- ernor than he for President. With the withdrawal of the troops, the carpet-bag governments fell like houses built of cards. In one State only was there any friction: Louisiana, where there were two rival legislatures, and the lottery company owned enough blacks in one of them to give the other by their secession the quorum necessary for a valid organization. A contract was made with the corporation; and its legislators marched like cattle to the other house, which then organized, and established a valid, efficient and honest government. But as the price for this rescue of the State from the hands of its despoilers, the tax-payers were obliged to insert in the new Constitution provisions which legal- acts. The text of this extraordinary cal questions. By changes in the law document may be found in Appleton's centralizing in the Governor every Annual Encyclopedia for 1875, p. 457. form of political control, including tlie The agreement was performed, and supervision of elections; by continu- Kellogg thus secured the control of ing the Returning Board with absolute the Keturning Board which was used poweroverthereturns of elections; by to give the electoral vote to Hayes, the extraordinary provisions enacted the following year. for the trial of titles and claims to oface ; " The general condition of affairs by the conversion of the police-force, in the State of Louisiana seems to be maintained at the expense of the city as follows : The conviction has been of New Orleans, into an armed brigade general among the whites, since 1872, of State militia, subject to the corn- that the Kellogg government was a mandof the Governor; by the creation usurpation. This conviction among in some places, of monopolies in mar- them has been strengthened by the kets, gas-making, water-works and acts of the Kellogg legislature abolish- ferries, cleaning vaults, removing filth ing existing courts and judges, and and doing work as wharHngers ; by the substituting others presided over by abolition of courts with elected judges, judges appointed by Kellogg, having and the substitution of other courtB extraordinary jurisdiction over politi- with judges appointed by Kellogg in §38.] LOUISIANA. 261 ized the lottery for a period of twenty years. ^'^ So closed this, the most disgraceful episode in the history of the United States.^'* evasion of the Constitution of the State ; by enactments punishing crimi- nally all persons who attempted to fill official positions unless returned by the Beturning Board ; by unlimited appropriations for the payment of militia expenses, and for the payment of legislative warrants, vouchers, and checks issued during the years 1870 to 1872; by laws declaring that no person in arrears for taxes, after de- fault published, shall bring any suit in any court of the State, or be al- lowed to be a witness in his own be- half; measures which, when coupled with the extraordinary burdens of taxation, have served to vest, in the language of Governor Kellogg's coun- sel, ' a degree of power in the governor of a State, scarcely exercised by any sovereign In the world.' With this conviction is a general want of confi- dence in the integrity of the existing State and local officials, a want of confidence equally in their persons and in their personnel, which is ac- companied by the paralyzation of business and destruction of values." Report of Charles Foster, William Walter Phelps and Clarkson A. Pot- ter, sub-committee of a Congressional committee, which was adopted by the full committee and presented to the house by George F. Hoar, Jan. 14th, 1875. A majority of the full committee and of the sub-committee were Eepublicans. 1™ The history of this transaction was told by the New York Sun, Nov. 20, 1891. That the account there given is correct the writer knows from in- formation given him by a prominent citizen of New Orleans. The Wormley Conference, at which the bargain was made between Hayes' representatives and certain Southern members of the House, is described in the New York Herald, Jan. 5, 1885. 174 few 2d ed., vol. v, p. 181. York, New Jersey, Delaware, Mary- 22 Massachusetts, Pennsylvania, land, no, 5 (ibid., p. 182). Virginia, North Carolina, South Caro- 23 n,i(j., p. 192. See supra, § 17. § 64.] HISTOET. 379 Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 6 ; Connecticut, New York, New Jersey, Delaware, no ; Mary- land being divided, and New Hampshire, which would have aided the other small States, being not represented.^* Through the division of Georgia, the vote was a tie on the proposition that the States should have an equal voice in the Senate ; and the sub- ject was then referred to a committee of one for each State in the hope that a compromise might be arranged.^ Franklin left the side of the larger States, and at the end of three days the following report was made : — " The Committee to -whom was referred the eighth resolution of the report from the Committee of the whole House, and so much of the seventh as has not been decided on, submit the following report : — That the subsequent propositions be recommended to the Convention on condition that both shall be generally adopted. 1. That, in the first branch of the legislature, each of the States now in the Union shall be allowed one member for every forty thousand inhabitants, of the de- scription reported in the seventh resolution of the Committee of the whole House ; that each State not containing that number shall be allowed one member; that all bills for raising or appropriating money, and for fixing the salaries of the officers of the government of the United States, shall originate in the first branch of the legislature, and shall not be altered or amended by the second branch ; and that no money shall be drawn from the public treasury but in pursuance of ap- propriations to be originated in the first branch. 2. That, in the sec- ond branch, each state shall have an equal vote." ^* In the subsequent debate, Gouverneur Morris said : — " He looked forward, also, to that range of new states which would soon be formed in the West. He thought the rule of representation ought to be so fixed, as to secure to the Atlantic States a prevalence in the national councils. The new states will know less of the public in- terest than these ; will have an interest in many respects different ; in particular, will be less scrupulous of involving the community in wars, the burdens and operations of which would fall chiefly on the maritime states. Provision ought, therefore, to be made to prevent the maritime states from being hereafter outvoted by them. He thought this might be easily done, by irrevocably fixing the number of repre- 2* Madison Papers, Elliot's Debates, ^^ Ibid. , p. 273. 2d ed., vol. v, p. 259. ^ Ibid- 380 APPORTIONMENT AND DIRECT TAXES. [CHAP. VIH. sentatives which the Atlantic States should respectively have, and the number which each new state will have. This would not be unjust, as the western settlers would previously know the conditions on which they were to possess their lands. It would be politic, as it would recommend the plan to the present, as well as future^ interest of the states which must decide the fate of it." ^^ Col. Mason said : — "The case of new states was not unnoticed in the committee; but it was thought, and he was himself decidedly of opinion, that if they made a part of the Union, they ought to be subject to no unfavorable discriminations. Obvious considerations required it." ^' The subject of the apportionment of representation was re- ferred to a new committee, who subsequently recommended : — " That, in the first meeting of the legislature, the first branch thereof consist of fifty-six members of which number New Hampshire shall have 2, Massachusetts, 7, Rhode Island, 1, Connecticut, 4, New York, 5, New Jersey, 3, Pennsylvania, 8, Delaware, 1, Maryland, 4, Virginia, 9, North Carolina, 5, South Carolina, 5, Georgia, 2. But as the present situation of the states may probably alter, as well in point of wealth as in the number of their inhabitants, that the legislature be authorized from time to time to augment the number of representatives. And in case any of the states shall hereafter be divided, or any two or more states united, or any new states created within the limits of the United States, the legislature shall possess authority to regulate the number of representatives, in any of the foregoing cases, upon the principles of their wealth and number of inhabitants." ' ' Mr. Sherman wished to know on what principles or calculations the report was founded. It did not appear to correspond with any rule of numbers, or of any requisition hitherto adopted by Congress." Mr. Gorham : — " Some provision of this sort was necessary in the outset. The number of blacks and whites, with some regard to supposed wealth, was the general guide. Fractions could not be observed. The legisla- ture is to make alterations from time to time, as justice and propriety may require. Two objections prevailed against the rule of one member for every forty thousand inhabitants. The first was, that the representa- tion would soon be too numerous ; the second, that the "Western States, who may have a different interest, might, if admitted on that principle, ■" Ibid., p. 279. 28 Ibid. § 64.] PROCEEDINGS IN CONVENTION. 381 by degrees outvote the Atlantic. Both these objections are removed. The number will be small in the first instance, and may be continued so. And the Atlantic States, having the government in their own hands, may take care of their own interest, by dealing out the right of representation in safe proportions to the Western States. These were the views of the Committee." ^ The subject was referred to a new committee, who increased the number of representatives in their report : — ' ' that the States at the first meeting of the general legislature, should be represented by sixty-five members, in the following proportions, to wit: New Hampshire, by 3 ; Massachusetts, 8 ; Rhode Island, 1 ; Con- necticut, 5 ; New York, 6 ; New Jersey, 4 ; Pennsylvania, 8 ; Delaware, 1 ; Maryland, 6 ; Virginia, 10 ; North Carolina, 5 ; South Carolina, 5 ; Georgia, 3." »» After the defeat of several motions to change the numbers al- lotted to different States, the report was adopted by nine States against two.^^ ' ' Mr. Randolph moved as an amendment to the report of the com- mittee of five ' that, in order to ascertain the alterations in the popula- tion and wealth of the several states, the legislature should be required to cause a census and estimate to be taken within one year after its first meeting ' ; and every years thereafter ; and that the legislature ar- range the representation accordingly." ' ' Mr. Gouverneur Morris opposed it, as fettering the legislature too much. Advantage may be taken of it in time of war or the apprehen- sion of it, by new states, to extort particular favors. If the mode was to be fixed for taking a census, it might certainly be extremely incon- venient ; if unfixed, the legislature may use such a mode as will defeat the object, and perpetuate the inequality. He was always against such shackles on the legislature. They had been found very pernicious in 29 Madison Papers, Elliot's Debates, state had the power in the first in- 2d ed., vol. v, p. 288. See also the re- stance. They kept it in their own marks of Eutledge, ibid., p. 297, and hands, and the country was the of Gouverneur Morris, ibid., pp. 294, better for it." 298. The latter said : " If the western «> Ibid. , p. 290. people get the power into their hands, ^i Massachusetts, Connecticut, New they will ruin the Atlantic interests. York, New Jersey, Pennsylvania, Del- The back members are always most aware, Maryland, Virginia, North averse to the best measures. He Carolina, ay, 9; South Carolina, Geor- mentioned the case of Pennsylvania gia, no, 2. Ibid., p. 293. formerly. The lower part of the 382 APPORTIONMENT. [CHAP. Vni. most of the state constitutions. He dwelt much on the danger of throwing such a preponderance into the western scale ; suggesting that, in time, the western people would out-number the Atlantic States. He wished therefore to put it in the power of the latter to keep a majority of votes in their own hands. It was objected, he said, that if the legis- lature are left at liberty, they will never readjust the representation. He admitted that this was possible, but he did not think it probable, unless the reasons against a revision of it were very urgent, and in this case it ought not to be done. " ^^ Had his arguments prevailed, the citizens of the West would soon have regarded those of the East in the same manner that the English did the owners of their rotten boroughs, and dissensions have arisen that might easily have torn the United States apart long before the extension of slavery became a vital issue.^ Meanwhile, the Southern States had perceived that the power thus vested in those on the North Atlantic to discriminate against the new States that would be formed in the West, might be used against them too. Mason, of Virginia, who, more than any one of his time, foresaw the danger to slavery which lay in the Con- stitution,^ gave voice to this feeling : — ' ' The greater the difficulty we find in fixing a proper rule of repre- sentation, the more unwilling ought we to be to throw the task from ourselves on the general legislature. He did not object to the conjectu- ral ratio which was to prevail in the outset, but considered a revision, from time to time, according to some permanent and precise standard, as essential to the fair representation required in the first branch. Ac- cording to the present population of America, the northern part of it had a right to preponderate, and he could not deny it. But he wished it not to preponderate hereafter, when the reason no longer continued. From the nature of man, we may be sure that those who have power in their hands will not give it up while they can retain it. On the contrary, we know that they will always, when they can, rather increase it. If the Southern States, therefore, should have three-fourths of the people of America within their limits, the Northern will hold fast the majority of representatives. One-fourth wUl govern the three-fourths. The Southern States will complain ; but they may complain from generation 32 Madison Papers, Elliot's Debates, " See the remarks of Mason, infra, 2d ed., vol. v, pp. 293-294. over note 35. 8« Swpra, § 28, note 1. § 64.J PEOCEBDINGS IN CONVENTION. 383 to generation without redress. Unless some principle,. therefore, which will do justice to them hereafter, shall be inserted in the Constitution, disagreeable as the declaration was to him, he must declare he could neither vote for the system here, nor support it in his state. ' ' Strong objections had been drawn from the danger to the Atlantic interests from new Western States. Ought we to sacrifice what we know to be right in itself lest it should prove favorable to states which are not yet in existence? If the "Western States are to be admitted into the Union, as they arise, th6y must, he would repeat, be treated as equals, and subjected to no degrading discriminations. They will have the same pride, and other passions, which we have, and will either not unite with or will speedily revolt from, the Union, if they are not in all re- spects placed on an equal footing with their brethren. It has been said, they will be poor, and unable to make equal contributions to the general treasury. He did not know but that in time, they would be both more numerous and more wealthy than their Atlantic brethren. The extent and fertility of their soil made this probable ; and though Spain might for a time deprive them of the natural outlet for their productions, yet she will, because she must, finally yield to their demands. He urged that numbers of inhabitants, though not always a precise standard of wealth, was sufficiently so for every substantial purpose. " Mr. "Williamson was for making it a duty of the legislature to do what was right, and not leave it at liberty to do or not to do it. He moved that Mr. Randolph's propositions be postponed in order to con- sider the following : — ' That in order to ascertain the alterations that may happen in the population and wealth of the several states, a census shall be taken of the free white inhabitants, and three-fifths of those of other descriptions, on the first year after this government shall have been adopted, and every year thereafter ; and that the representa- tion be regulated accordingly.' " ^^ The delegates from South Carolina then moved that slaves should be placed upon the same footing as freemen in the apportionment of representation ; but only Delaware and Georgia supported the proposition. Gouverneur Morris again insisted that the original States should retain the control : — " If the western people get the power into their hands, they will ruin the Atlantic interests." '^ 36 Elliot's Debates, 2d ed., vol. v, S6 Jbid., p. 298 ; supra, note 29. pp. 294-295. 384 APPORTIONMENT. [CHAP. VIII. The general sentiment was, however, opposed to him. " On the question of the first clause of Mr. Williamson's motion, as to taking a census of the free inhabitants, it passed in the affirma- tive, — Massachusetts, Connecticut, New Jersey, Pennsylvania, Vir- ginia, North Carolina, ay, 6 ; Delaware, Maryland, South Carolina, Georgia, no, 4." '" ' ' On the question for agreeing to include three-fifths of the blacks — Connecticut, Virginia, North Carolina, Georgia, ay, 4 ; Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, no, 6." s' In the course of the debate, delegates from Massachusetts and Pennsylvania had expressed a fear lest their constituents might not submit to the rule that slave-owners should have increased representation for their slaves.^ At the end of the day, Williamson's motion was rejected unan- imously. On the next day — "Mr. Gouverneur Morris moved to add to the clause empowering the legislature to vary the representation according to the principles of wealth and numbers of inhabitants, a proviso, ' that the taxation shall be in proportion to representation.' ' ' Mr. Butler contended, again, that representation should be accord- ing to the full number of inhabitants , including all the blacks ; admitting the justice of Mr. Gouverneur Morris's motion. ' ' Mr. Mason also admitted the justice of the principle, but was afraid embarrassments might be occasioned to the legislature by it. It might drive the legislature to the plan of requisitions. ' ' Mr. Gouverneur Morris admitted that some objections lay against his motion, but supposed they would be removed by restraining the rule to direct taxation. With regard to indirect taxes on exports and im- ports, and on consumption, the rule would be inapplicable. Notwith- standing what had been said to the contrary, he was persuaded that the imports and consumption were pretty nearly equal throughout the Union. " Gen. Pinckney liked the idea. He thought it so just that it could not be objected to, but foresaw that if the revision of the census was left to the discretion of the legislature, it would never be carried into execution. The rule must be fixed, and the execution of it enforced by the Constitution. He was alarmed at what was said (by Mr. Gouver- ''' Ibid., p. 300. 89 Kutus King and Grouverneur Mor- as Ibid., p. 301. ris, ibid., pp. 300-301. § 64.J PROCEEDINGS IN CONVENTION. 385 neur Morris), yesterday, concerning the negroes. He was now again alarmed at what had been thrown out concerning the taxing of exports. South Carolina has, in one year, exported to the amount of £600,000 sterling, all which was the fruit of the labor of her blacks. Will she be represented in proportion to this amount? She will not. Neither ought she then to be subject to a tax on it. He hoped a clause would be inserted in the system, restraining the legislature from taxing exports. ' ' Mr. "Wilson approved the principle, but could not see how it could be carried into execution, unless restrained to direct taxation. "Mr. Gouverneur Morris having so varied his motion by inserting the word ' direct', it passed nem. con., as follows : 'provided always that direct taxation ought to be proportioned to representation.' " *" " Mr. Ellsworth, in order to carry into effect the principle established, moved to add to the last clause adopted by the House the words follow- ing : ' and that the rule of contribution by direct taxation, for the sup- port of the government of the United ^tates, shall be the number of white inhabitants and three-fifths of every other description, in the sev- eral states, until some other rule, that shall more accurately ascertain the wealth of the several states, can be devised and adopted by the legislature.' " Mr. Butler seconded the motion, in order that it might be com- mitted. " Mr. Randolph was not satisfied with the motion. The danger will be revived, that the ingenuity of the legislature may evade or pervert the rule, so as to perpetuate the power where it shall be lodged in the first instance. He proposed, in lieu of Mr. Ellsworth's motion, ' that, in order to ascertain the alterations in representation that may be re- quired, from time to time, by changes in the relative circumstances of the states, a census shall be taken within two years from the first meet- ing of the general legislature of the United States, and once within the term of every years afterwards, of all the inhabitants, in the manner and according to the ratio recommended by Congress, in their resolution of the 18th of April, 1783 (rating the blacks at three-fifths of their numbers), and that the legislature of the United States shall arrange the representation accordingly.' . He urged strenuously, that express security ought to be provided for including slaves in the ratio of representation. He lamented that such a species of property ex- isted ; but, as it did exist, the holders of it would require this security. It was perceived that the design was entertained by some of excluding slaves altogether; the legislature, therefore, ought not to be left at liberty. 40 Madison Papers, Elliot's Debates, vol. v, p. 302. 386 APPOETIONMBNT. [CHAP. Vin. ' ' Mr. Ellsworth withdraws his motion, and seconds that of Mr. Ran- dolph. "Mr. Wilson observed that less umbrage would, perhaps, be taken against an admission of the slaves into the rule of representation, if it should be so expressed as to make them indirectly only an ingredient in the rule, by saying that they should enter into the rule of taxation ; and as representation was to be according to taxation, the end would be equally attained. He accordingly moved, and was seconded, so to alter the last clause adopted by the House, that, together with the amend- ment proposed, the whole should read as follows : ' provided always that the representation ought to be proportioned according to direct taxation ; and, in order to ascertain the alterations in the direct taxa- tion which may be required, from time to time, by the changes in the relative circumstances of the states, Resolved, that a census be taken within two years from the first meeting of the legislature of the United States, and once within the term of every years afterwards, of all the inhabitants of the United States, in the manner and according to the ratio recommended by Congress in their resolution of the 18 th of April, 1783, and that the legislature of the United States shall proportion the direct taxation accordingly.' " *^ " On Mr. Pinckney's motion, for rating blacks as equal to whites, in- stead of as three-flfths, — " South Carolina, Georgia, ay, 2 ; Massachusetts, Connecticut, (Dr. Johnson, ay,) New Jersey, Pennsylvania, (three against two,) Dela- ware, Maryland, Virginia, North Carolina, no, 8. " Mr. Randolph's proposition, as varied by Mr. "Wilson, being read, for taking the question on the whole, — ' ' Mr. Gerry urged that the principle of it could not be carried into execution, as the states were not to be taxed as states. "With regard to taxes on imposts, he conceived they would be more productive where there were no slaves, than where there were, the consumption being greater. " Mr. Ellsworth. In case of a poll-tax, there would be no difficulty. But there would probably be none. The sum allotted to a state may be levied without difficulty, according to the plan used by the state in raising its own supplies. ' ' On the question on the whole proposition, as proportioning repre- sentation to direct taxation, and both to the white and three-fifths of the black inhabitants, and requiring a census within six years, and within every ten years afterwards, — " Ibid., pp. 303, 304:. § 64.J PKOCEEDINGS IN CONVENTION. 387 " Connecticut, Pennsylvania, Maryland, Virginia, North Carolina, Georgia, ay, 6 ; New Jersey, Delaware, no, 2 ; Massachusetts, South Carolina, divided." ''^ " On the question for agreeing to the whole report, as amended, and including the equality of votes in the second branch, it passed in the aflSrmative. " Connecticut, New Jersey, Delaware, Maryland, North Carolina (Mr. Spaight, no,) ay, 5 ; Pennsylvania, Virginia, South Carolina, G-eorgia, no, 4 ; Massachusetts, divided (Mr. Gerry, Mr. Strong, ay ; Mr. King, Mr. Gorham, no). " The whole, thus passed, is in the words following, viz. : " Resolved, That, in the original formation of the legislature of the United States, the first branch thereof shall consist of sixty-five mem- bers, of which number New Hampshire shall send 3 ; Massachusetts, 8 ; Rhode Island, 1 ; Connecticut, 5 ; New York, 6 ; New Jersey, 4 ; Penn- sylvania, 8 ; Delaware, 1 ; Maryland, 6 ; Virginia, 10 ; North Carolina, 5 ; South Carolina, 5 ; Georgia, 3. But as the present situation of the states may probably alter in the number of their inhabitants, the legis- lature of the United States shall be authorized, from time to time, to apportion the number of representatives ; and in case any of the states shall hereafter be divided, or enlarged by addition of territory, or any two or more states united, or any new states created, within the limits of the United States, the legislature of the United States shall possess authority to regulate the number of representatives, in any of the fore- going cases, upon the principle of their number of inhabitants, ac- cording to the provisions hereafter mentioned ; provided, always, that representation ought to be proportioned according to direct taxation. And in order to ascertain the alteration in the direct taxation, which may be required from time to time by the changes in the relative cir- cumstances of the states, " Resolved, That a census be taken within six years from the first meeting of the legislature of the United States, and once within the term of every ten years afterwards, of all the inhabitants of the United States, in the manner and according to the ratio recommended by Con- gress in their resolution of the 18th day of April, 1783 ; and that the legislature of the United States shall proportion the direct taxation ac- cordingly. " Resolved, That all bills for raising or appropriating money, and for fixing the salaries of officers of the Government of the United States, shall originate in the first branch of the legislature of the United States, «2 Madison Papers, Elliot's Debates, vol. v, pp. 305-306. 388 APPORTIONMENT. [CHAP. VIH. 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 ap- propriations to be originated in the first branch. '■'■ Besolved, That, in the second branch of the legislature of the Uni- ted States, each state shall have an equal vote." " In this form, the matter was referred to the committee of detail. Immediately before the reference, — ' ' Mr. Gouverneur Morris hoped the committee would strike out the whole of the clause proportioning direct taxation to representation. He had only meant it as a bridge to assist us over a certain gulf ; having passed the gulf, the bridge may be removed. He thought the principle laid down with so much strictness liable to strong objections."" The committee, however, did not assume the responsibility of disturbing tlie compromise. In their report the resolution was re- tained but separated. Section 4 of Article IV is as follows : — " As the proportions of numbers in different states will alter from time to time ; as some of the states may hereafter be divided ; as oth- ers may be enlarged by addition of territory ; as two or more states may be united ; as new states will be erected within the limits of the United States, — the legislature shall, in each of these cases, regulate the number of representatives by the number of inhabitants, according to the provisions hereinafter made, at the rate of one for every forty thousand." " Sections 3 and 4 of Article VII read : — " The proportions of direct taxation shall be regulated by the whole number of white and other free citizens and inhabitants of every age, sex, and condition, including those bound to servitude for a term of years, and three-fifths of all other persons not comprehended in the foregoing description (except Indians not paying taxes) ; which num- ber shall, within six years after the first meeting of the legislature, and within the term of every ten years afterwards, be taken in such a manner, as the said legislature shall direct." *^ ' ' No tax shall be laid by the legislature on articles exported from any state ; nor on the migration or importation of such persons as the several states shall think proper to admit ; nor shall such migration or importation be prohibited." *' " Ibid., pp. 316, 317. 46 jbid., p. 377. ** Ibid., pp. 362, 363. Carroll of « ibid., p. 379. Maryland concurred with him. it Ibid. § 64.J PROCEEDINGS IN CONVENTION. 389 In a subsequent debate, — "Mr. King asked what was the precise meaning of direct taxation. No one answered." *' Afterwards Luther Martin said : " The power of taxation is most likely to be criticised by the public. Direct taxation should not be used but in cases of absolute necessity ; and then the states will be the best judges of the mode. He therefore moved the following addition to article 7, sect. 3 : — " 'And whenever the legislature of the United States shall find it necessary that revenue should be raised by direct taxation, having ap- portioned the same according to the above rule on the several states, requisitions shall be made of the respective states to pay to the Conti- nental treasury their respective quotas, within a time in the said requi- sitions specified ; and in case of any of the states failing to comply with such requisitions, then, and then only, to devise and pass acts directing the mode, and authorizing the collection of the same.' ' ' Mr. M'Henry seconded the motion. There was no debate ; and, on the question, — " New Jersey, ay, 1 ; New Hampshire, Connecticut, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, no, 8 ; Maryland divided (Jenifer and Carroll, no)."*' John Langdon, of New Hampshire, evidently anticipated that direct taxation would be frequent. He said that he "was not here when New Hampshire was allowed three members. It was more than her share ; he did not wish for them." ^ ' On the consideration of the report of the committee of detail, a few changes were made in the phraseology ; and it was unani- mously agreed that each State should have at least one vote in the lower house.^^ This was suggested by a similar provision in the Constitution of Massachusetts concerning the representation of towns.^^ At the close of the Convention, the minimum of representation was reduced to thirty thousand, upon the recommendation of Washington ; who then made on this subject his only speech be- fore the Convention, and asked for the amendment in order to <8 Madison Papers, Elliot's Debates, " Ibid., p. 394. vol. V, p. 451. ^^ See Wilson's remark, ibid., p. 281, *^ Ibid., p. 453. Massachusetts Constitution of 1780, 60 Ibid. Article II, ch. I, Sec. 3. 390 APPOETIONMENT. [CHAP. VIU. obviate objections which he thought would prejudice the success of the measure when submitted to the people.^ It is conse- quently clear that the compromise was made in order to protect property of every kind, as well as slaves, from excessive taxation imposed by a majority who would escape the burden. It was moved by a delegate from the rich, free State of Pennsylvania, who had expressed his fear lest the new States in the West might use their numerical advantage to oppress their richer fellow-citi- zens on the Atlantic coast ; ^* and thus, as said by Hamilton, in The Federalist,^^ the door was effectually shut " to partiality or op- pression. The abuse of this power seems to have been provided against with guarded circumspection." Five of the States did not consider this protection satisfactory. And upon her ratification Massachusetts proposed the following amendment, in which New York, New Hampshire, Rhode Island and South Carolina concurred : — ' ' That Congress do not lay direct taxes but when the moneys aria- ing from the impost or excise are insufficient for the public exigencies, nor then until Congress shall have first made a requisition upon the States to assess, levy, and pay, their respective proportions of such requisition, agreeably to the terms fixed in the said Constitution in such way and manner as the legislatures of the States shall think best."" Madison opposed this amendment as " calculated to impair the power, only to be exercised in extraordinary emergencies." ^^ He said : " If extraordinary aids for the public safety shall not be necessary, direct taxes will not be necessary " ; and that the pro- posed amendment was needless, since " every State which chuses to collect its own quota may always prevent a Federal collection, by keeping a little beforehand in its finances, and making its pay- ment at once into the Federal treasury." ^^ At that time, the system of taxation in the different States was various. All taxed land, with its improvements ; some taxed all personal property, with a few exemptions ; some taxed imports 58 Ibid., p. 555. Farmers' Loan and Trust Co., 158 U. S., 64 Supra, over notes 27, 29, 36. 601, 620. 66 No. xxxvi. ^' Madison to Colonel Thompson, 66 Elliot's Debates, vol. i, p. 322. Jan. 29, 1789; republished by Mr. 6' Chief- Justice Fuller in Pollock v. Worthington 0. Ford (51 A. L. J., 292), 325, 326, 329, 335. § 64.] PROCEEDINGS IN CONVENTION. 391 and specific articles of personal property, and some imposed a tax on occupations, measured by their profits .^^ A survey of these proceedings consequently shows the accuracy of the recent statement by Chief-Justice Fuller : — ' ' The men who framed and adopted that instrument had just emerged from the struggle for independence whose rallying cry had been that 'taxation and representation go together.' The mother country had taught the colonists, in the contests waged to establish that taxes could not be imposed by the sovereign except as they were granted by the representatives of the realm, that self-taxation constituted the main security against oppression. As Burke declared, in his speech on Con- ciliation with America, the defenders of the excellence of the English Constitution ' took infinite pains to inculcate as a fundamental princi- ple, that, in all monarchies, the people must, in effect, themselves, me- diately or immediately, possess the power of granting their own money, or no shadow of liberty could subsist.' The principle was, that the con- sent of those who were expected to pay it was essential to the validity of any tax. "The States were about, for aU national purposes embraced in the Constitution, to become one, united under the same sovereign author- ity, and governed by the same laws. But, as they still retained their jurisdiction over all persons and things within their territorial limits, except where surrendered to the general government or restrained by the Constitution, they were careful to see to it that taxation and rep- resentation should go together, so that the sovereignty reserved should not be impau'ed, and that when Congress, and especially the House of Representatives, where it was specifically provided that all revenue bills must originate, voted a tax upon property, it should be with the consciousness, and under the responsibility that in so doing the tax so voted would proportionately fall upon the immediate constituents of those who imposed it. " More than this, by the Constitution the States not only gave to the Nation the concurrent power to tax persons and property directly, but they surrendered their own power to levy taxes on imports and to regu- late commerce. All the thirteen were seaboard States, but they varied in maritime importance, and differences existed between them in popu- s' See Eeport on Direct Taxes, by E. K. A. Seligman on the Income Tax Oliver Wolcott, Secretary of the Treas- in the American Colonies and States, ury, Dec. 14, 1796 (Annals of Con- Pol. So. Q., vol. x, p. 221. Foster and grass, 1795-1797, pp. 2635-2713. Prof. Abbot on the Income Tax, pp. 1-2. 392 APPOETIONMENT. [CHAP. Vm. lation, in wealth, in the character of property, and of business interests. Moreover, they looked forward to the coming of new States from the great West into the vast empire of their anticipations. So when the wealthier States as between themselves and their less favored asso- ciates, and all as between themselves and those who were to come, gave up for the common good the great sources of revenue derived through commerce, they did so in reliance on the protection afforded by restrictions on the grant of power." *° " In the light of the struggle in the convention as to whether or not the new Nation should be empowered to levy taxes directly on the indi- vidual until after the States had failed to respond to requisitions — a struggle which did not terminate until the amendment to that effect, proposed by Massachusetts and concurred in by South Carolina, New Hampshire, New York, and Rhode Island, had been rejected — it would seem beyond reasonable question that direct taxation, taking the place as it did of requisitions, was purposely restrained to apportionment ac- cording to representation, in order that the former system as to ratio," which had been proposed by Congress as an amendment to the Articles of Confederation, and ratified by eleven States, "might be retained while the mode of collection was changed." " ' ' The reasons for the clauses of the Constitution in respect of direct taxation are not far to seek. The States respectively possessed ple- nary powers of taxation. They could tax the property of their citizens in such manner and to such extent as they saw fit ; they had unre- stricted powers to impose duties or impost, on imports from abroad and excises on manufactures, consumable commodities, or otherwise. They gave up the great sources of revenue derived from commerce ; they retained the concurrent power of levying excises aud duties if covering anything other than excises ; but in respect of them the range of taxation was narrowed by the power granted over interstate com- merce, and by the danger of being put at disadvantage in dealing with excises on manufactures. They retained the power of direct taxation, and to that they looked as their chief resource ; but even in respect of that, they granted the concurrent power, and if the tax were placed by both governments on the same subject, the claim of the United States had preference. Therefore, they did not grant the power of direct tax- ation, without regard to theii- own condition and resources as States ; but they granted the power of apportioned direct taxation, a power just as efficacious to serve the needs of the general government, but "» Pollock V. Farmers' Loan and " ibid., 601, 619-620. Trust Co., 158 U. S., 429, 556-557. § 65.] MANNER OF APPORTIONMENT. 393 securing to the States the opportunity to pay the amount apportioned, and to recoup from their own citizens in the most feasible way, and in harmony with their systems of local self-government. If, in the changes of wealth and population in particular States, apportionment produced inequality, it was an inequality stipulated for, just as the equal repre- sentation of the States, however small, in the Senate, was stipulated for. The Constitution ordains affirmatively that each State shall have two members of that body, and negatively that no State shall by amend- ment be deprived of its equal suffrage in the Senate without its consent. The Constitution ordains affirmatively that representatives and direct taxes shall be apportioned among the several States according to num- bers, and negatively that no direct tax shall be laid unless in proportion to the enumeration. " The founders anticipated that the expenditures of the States, their counties, cities and towns, would chiefly be met by direct taxation on accumulated property, while they expected that those of the Federal government would be for the most part met by indirect taxes. And in order that the power of direct taxation by the general government should not be exercised except on necessity ; and, when the necessity arose, should be so exercised as to leave the States at liberty to dis- charge their respective obligations, and should not be so exercised, un- fairly and discriminatingly, as to particular States or otherwise, by a mere majority vote, possibly of those whose constituents were inten- tionally not subjected to any part of the burden, the qualified grant was made."*'' § 65. Manner of Apportionment. The first apportionment was made by the Constitution itself and was assumed to be upon substantially the same basis as it fixed for all future apportionments, with an extra allowance to Georgia on account of the rapid increase of her population.^ The apportionment of direct taxation is easy. It is made by taking the aggregate of the population in all the States according to the constitutional rule, ascertaining the proportion of this population in each State to that of the whole, and then dividing the gross amount of the tax by the ratios thus obtained. Since a sum of money is capable of division down to a fraction of a cent which is too small for consideration, there is no difficulty in the process. A man, however, cannot be subdivided. Conse- «2 Pollock V. Farmers' Loan and § 65. i Madison Papers, Elliot's De- Tnist Co., 158 V. S,, 601, 620-621. bates, 2d ed„ vol. v, p. 300. 394 APPORTIONMENT. [CHAP. Tin. quently, any scheme of apportionment, after tlie determination of the amount of population which shall be entitled to one represen- tative, creates a difficulty by the existence in almost every State, of several thousands of persons, who constitute a fraction of that number, and for whose representation provision should be made. Different methods of providing for these fractions have been con- sidered and adopted. The first apportionment bill, which was introduced in the House of Representatives in 1790, gave one representative for every 30,000 inhabitants, and left the remaining fractions in the several States unrepresented. The bill passed the House in this form and was amended in the Senate by allowing additional representatives to the States having the largest frac- tions. The House finally concurred. The history of the discus- sion is thus stated by Chief-Justice Marshall : — • ' ' This bill as originally introduced into the house of representatives, gave to each state one member for every thirty thousand persons. On a motion to strike out the number thirty thousand, the debate turned chiefly on the policy and advantage of a more or less numerous house of representatives ; but with the general arguments suggested by the subject, were interspersed strong and pointed allusions to the measures of the preceding Congress, which indicated much more serious hostility to the administration than had hitherto been expressed.'"' "After a long and animated discussion, the amendment was lost ; as were also other amendments which were severally proposed, for inserting between the words 'thirty,' and 'thousand,' the words five, four, and three; and the bill passed in its original form. In the senate, it was amended by changing the ratio so as to give one representative for every thirty- three thousand persons in each state ; but this amendment was disagreed to by the house of representatives ; and each house adhering to its opinion, the bill fell. The argument which operated in the senate is understood to have been, the great amount, and the inequality of un- represented fractions, which were the result of the ratio originally pro- posed ; a circumstance which pressed with peculiar weight on the small states, where the fraction could not be distributed among several mem- bers. A bill was again introduced into the house of representatives under a different title and in a new form, but without any change in its substantial provisions. After a debate in which the inequality and in- justice of the fractions produced by the ratio it adopted was strongly in- sisted on, it passed that house. In the senate, it was again amended, 2 Marshall's Life of Washingtoo, vol. v, p. 319. § 65.] MANNER OF APPOETIONMENT. 395 not by reducing, but by enlarging the number of representatives. The Constitution of the United States declares that ' representatives and direct taxes shall be apportioned among the several states which may be included within this union according to their respective numbers ; ' and that ' the number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative.' Construing the constitution to authorize a process by which the whole number of representatives should be ascertained on the whole population of the United States, and afterwards ' apportioned among the several states according to their respective numbers,' the senate applied the number thirty thousand as a divisor to the total population, and taking the quotient which was one hundred and twenty, as the number of rep- resentatives given by the ratio which had been adopted in the house where the bill had originated, they apportioned that number among the several states by that ratio, until as many representatives as it would give were allotted to each. The residuary members were then distri- buted among the states having the highest fractions. Without profess- ing the principle on which this apportionment was made, the amendment of the senate merely allotted to the states respectively, the number of members which the process just mentioned would give. The result was a more equitable apportionment of representatives to population, and a still more exact accordance, than was found in the original bill, with the prevailing sentiment, which, both within and without doors, seemed to require that the popular branch of the legislature should consist of as many members as the fundamental laws of the government would admit. If the rule of construing that instrument was correct, the amendment removed objections which were certainly well founded, and was not easily assailable by the advocates for a numerous representative body. But the rule was novel, and overturned opinions which had been generally assumed, and were supposed to be settled. In one branch of the legislature it had already been rejected ; and in the other, the ma- jority in its favour was only one. In the house of representatives, the amendment was supported with considerable ingenuity. After an earnest debate, however, it was disagreed to, and a conference took place without producing an accommodation among the members com- posing the committee. But finally, the house of representatives re- ceded from their disagreement; and, by a majority of two voices, the bill passed as amended in the senate." ' The division in Congress on the subject was geographical. The Southern States voted against it, and the Northern in its favor.* s Marshall's Life of Washington, * Story on the Constitution, 5th ed., vol. V, pp. 320-323. § 681. 396 APPORTIONMENT. [CHAP. VIH. The cabinet divided upon the propriety of the approval of the bill. This division also was upon geographical lines. The Sec- retary of State, Jefferson, and Attorney-General Randolph, both of whom were from Virginia, expressed their disapproval. The Sec- retary of the Treasury, Hamilton of New York, and the Secretary of War, Knox of Massachusetts, approved the same. President Washington, who was from Virginia, vetoed the measure and returned it with two objections : — " 1 . That the Constitution has prescribed that representatives shall be apportioned among the several States according to their respective numbers ; and there is no proportion or divisor which, applied to the respective members of the States, will yield the number and allotment of representatives proposed by the bill. 2. The Constitution has also provided that the number of representatives shall not exceed one for thirty thousand, which restriction is by the context, and by fair and obvious construction, to be applied to the several and respective num- bers of the States, and the bill has alloted to eight of the States more than one for thirty thousand."' Of this Judge Story said : — ' ' The second reason assigned by the President against the bill was well founded in fact, and entirely conclusive. The other, to say the least of it, is as open to question as any one which can well be imag- ined in a case of real difHculty of construction. It assumes, at its basis, that a common ratio, or divisor, is to be taken and applied to each State, let the fractions and inequalities left be whatever they may. Now, this is a plain departure from the terms of the Constitution. It is not there said that any such ratio shall be taken. The language is, that the representatives shall be apportioned among the several States according to their respective numbers, that is, according to the propor- tion of the whole population of each State to the aggregate of all the States. To apportion according to a ratio short of the whole number in a State, is not an apportionment according to the respective numbers of the State. If it is said that it is impracticable to follow the meaning of the terms literally, that may be admitted; but it does not follow that they are to be wholly disregarded, or language substituted essen- tially different in its import and effect. If we must depart, we must depart as little as practicable. We are to act on the doctrine of c'y pris, or come as nearly as possible to the rule of the Constitution. If we are at liberty to adopt a rule varying from the terms of the Constitution, ^ Marshall's Life of Washington, opinion is printed in the appendix to vol. V, pp. 323-324, note. Jefferson's this chapter. Infra, pp. 424-430. § 65.] MANNER OF APPOKTIONMBNT. 397 arguing ab inconvenienti, then it is clearly just as open to others to reason on the other side from opposing inconvenience and injustice." ^ Two-tliirds of the House failed to pass the bill over the Presi- dent's veto, and it was consequently lost. It was then believed that the rule of apportionment had been finally determined.'^ Until 1842, this rule still prevailed, and on each apportionment fractions were left unrepresented. It was, however, attacked in the Senate in 1832 in an able report by Dan- iel Webster, with whom Edward Everett, then in the House, concurred.^ This report did not become a basis of apportionment at that time, but it convinced the people ; and the rule which it approved was actually adopted as the basis of the Congressional apportion- mentof 1842. Since then it has been the practice of the committees of Congress, when preparing apportionment bills, after determin- ing the maximum amount of population entitled to one representa- tive, to refer the matter to the Secretary of the Interior to draft a scheme of apportionment by the application of this rule after the population is ascertained by the last census. And several State constitutions require that apportionments of members of their legislatures be similarly made.^ The rule is to determine the amount of the population which shall be entitled to one representative in Congress, and after hav- ing allowed a representative to each of these numbers, to allow to every State an additional member for each fraction of its numbers exceeding one-half of the ratio, rejecting from consideration the smaller fractions ; ^° and to leave to the States the task of dividing themselves into Congressional districts.^^ The power of Congress to legislate upon the subject has never been questioned.^ « Story on the Constitution, 5th ed., ter v. Kice, 135 N. Y., 473, 501-502. § 682. 10 Kent's Comm., vol. i, p. 230. ' Bawle on the Constitution, p. 43 ; This method of apportionment was Marshall's Life of Washington, vol. approved by the Supreme Court of V, p. 324. Michigan in Giddings v. Blacker, Seo- 8 This report is printed in the Ap- retary of State, 93 Michigan, 1; s. c. pendix to this chapter, infra, pp. 430- 52 N. "W. Eep., 944, quoted infra, § 66. 446. See also Edward Everett's speech It is adopted in the New York Con- in the House, May 17, 1832. stitution of 1894, Art. Ill, Sec. 4. s Kent's Comm., vol. i, p. 230 ; Story " Infra, Chapter XIV. on the Constitution, 5th ed.,§ 687, pp. 12 prigg d. Pennsylvania, 16 Peters, 495-512 and notes ; People ex rel. Car- 539, 619. 398 APPORTIONMENT. [CHAP. VIII. § 66. Revision of Apportionments by the Courts. No attempt has been made by the courts to interfere with any congressional apportionment. Since a Federal court will grant no injunction to enforce a political right,^ and has ordinarily no power to grant the writ of mandamus, except as incidental to the exercise of its jurisdiction in another matter,^ and a State court has no power to grant a mandamus against an ofEcer of the United States,^ it would be difficult to obtain a ground for the as- sumption of jurisdiction for that purpose. Apart from technical difficulties, it might be claimed that such a proceeding would be an unwarrantable invasion by one branch of the government into the province of another, and a violation of the independence of the tliree departments, which should not be undertaken, unless clearly authorized by the language of the Constitution.* The only ap- parent remedy is subsequent legislation.^ In the different States, however, since the famous gerrymander in Massachusetts in 1812,*' so many grossly unjust apportionments have been made by parti- san majorities, that of late years the power of the courts to ex- amine and hold invalid apportionments of members of State legislatures,^which are clearly in violation of the equality enjoined § 66. 1 Mississippi i;. Johnson, 4 the act. The Court intimated that in Wall., 475; Georgia i). Stanton, 6 Wall., their opinion the State was entitled 50; Foster's Federal Practice, 2d ed., to the number claimed; but denied §§ 12, 23. the application, saying that Congress 2 MoClung V. Silliman, 6 Wheaton, alone could remedy the deficiency. 598 ; Foster's Federal Practice, 2d ed., « So named because the Essex sena- § 363. torial district was so irregularly 3 McClung D. Silliman, 6 Wheaton, shaped as to resemble a salamander; 598 ; State ex rel. Cromelien v. Boyd, 36 and Elbridge Gerry was the governor Nebraska, 181; S.C. 54 N.W. Hep., 252. who signed the bill. (The Political * People ex rel. Clough v. Curtis, 134 Depravity of the Fathers, by John U. S., 361; sttpra, § 42. Bach McMaster, Atlantic Monthly, s In State ex rel. Cromelien v. Boyd, vol. Ixxv, p. 631.) 36 Nebraska, 181 ; 54 N. W. Kep., 252 ; ' State ex rel. Attorney- General v. an attempt was made to cure an injus- Cunningham, 81 Wisconsin, 440 ; s. c. tice in the Congressional apportion- 51 N. W. Eep., 724; Board of Super- ment, by an application to the Supreme visors of the County of Houghton, v. Court of Nebraska to compel the Blacker, 92 Mich., 638 ; s. o. 52 N. W. Governor of that State to call an elec- Rep., 951 ; Giddings v. Blacker, Sec- tion for three representatives in ad- retary of State, 93 Mich., 1; s. o. 52 dition to those allowed the State in N. W. Bep., 944. 66.J REVISION BY THE COURTS. 399 by their respective constitutions, has been successfully asserted, and seems now to be generally conceded. The New York Con- stitution of 1894 expressly provides : — " that an apportionment by the legislature, or other body, shall be sub- ject to review by the Supreme Court, at the suit of any citizen, under such reasonable regulations as the legislature may prescribe."' The established rule seems to be as follows : The legislature must necessarily have some discretion in the matter, since absolute equality is impossible.^ The courts will not interfere, unless there is such a case of glaring inequality as makes it manifest that the discretion has been abused for the purpose of obtaining a partisan advantage or of unjustly diminishing the influence of particular localities ; ^^ but when such a case exists the courts will de- clare the apportionment void.^^ It was held that the fact that 8 Art. Ill, See. 5. ' People ex rel. Carter v. Eice, 135 N. Y., 473, 499, 511, 521 ; State ex rel. Gard- ner V. Newark, 40 N. J. Law, 297. 1° People ex rel. Carter v. Eice, 135 N. Y., 473. State ex rel. Attorney- General V. Cunningham, 81 Wisconsin, 440, 484 ; Parker v. State exrel. Powell, 133 Indiana, 178; S. c. 32 N. E. Eep., 836. 11 In People ex rel. Carter v. Eice, 135 N. Y., 473, an application was made for a mandamus, and an injunc- tion to test the constitutionality of an apportionment law under a State constitution which provided that " each Senate District shall contain as nearly as may be an equal number of inhabitants, excluding aliens, and per- sons of color not taxed ; and shall remain unaltered until the return of another enumeration, and shall at all times consist of contiguous territory; and no county shall be divided in the formation of a senate district, except such county shall be equitably entitled to two or more senators " (New York Constitution, Art. Ill, Sec. 4). "The members of assembly shall be ap- portioned among the several counties of this State, by the legislature, as nearly as may be, according to the number of their respective inhabitants, excluding aliens, and persons of color not taxed, and shall be chosen by single districts "(ibid.. Art. Ill, Sec. 5). It was held by a majority of the Court of Appeals, which divided upon party lines, that the words "as nearly as may be " fixed a certain amount of discretion in the legislature ; but that the courts could not review the ex- ercise of such discretion, unless it were manifestly a gross and inten- tional violation ; and that in that case, the court would not interfere, as the only claim of inequality consisted in the apportionment of representatives to the fractions of the ratio adopted. Judge Peckham said, when delivering the opinion of the majority (at pp. 498-501): — "From the formation of govern- ment under written constitutions in this country the question of the basis of representation in the legislative branch of the government has been one of the most important and most frequently debated. It is not true that equality of numbers in repre- 400 APPOKTIONMENT. [chap. vm. the people had acquiesced in an unjust and unconstitutional appor- sentation has been the leading idea at all times in regard to republican institutions. Political divisions of the state have in New England been the bodies which were entitled to representation, and the town as a town and irrespective of the number of inhabitants has had its representa- tive in the legislature, so that a large town necessarily had no more rep- resentation than a much smaller one. This is the case to-day in some of the New England States. " The power to readjust the politi- cal divisions of a sovereignty with the view of representation of those divisions or of the inhabitants thereof, in the legislature, resides of course in the first instance with the people, who in this country are the source of all political power. The essential nature of the power itself is not, however, altered by that fact. In its nature it is political as distinguished from legislative or judicial. In intrusting such power to any particular body, the people could by their Constitution give written instructions as to how it should be carried out, yet the essential nature of the power still remains. If a portion of it be intrusted to a body of men acting as a board for the mere purpose of making a mathematical calculation and with instructions to discharge its duties in a way which is solely mathematical, it is clear that the board has no discretion whatever, and it is bound strictly by the terms of the grant of power. In such case the people have not In reality parted with the whole power. There may then be a power in the court to correct the very slightest deviation from what can be clearly seen to be a mere ministerial duty. There being no possibility for the exercise of the slightest discretion, a violation of the arithmetical rule of proportion would become a violation of the Constitu- tion, and as such might be the subject of review by the courts. The power to review would exist because of the fact that the people had so bound and limited the exercise of the power to readjust the political divisions of the state that the power Itself thus limited had become in its exercise by the body to which it was intrusted, one of a ministerial nature only. Its na- ture as a political power in the board itself would in such case have been changed by the refusal of the people to permit of its exercise upon any other than a mathematical basis. Hence a direction to a body created by the people for such a purpose, which permitted no discretion in its exercise under any circumstances, might properly form the subject of enforcement by the courts. This, however, is not the case under our constitution. The power to alter these political divisions has been de- posited by the people with the legisla- ture and under such circumstances as to compel the exercise of legislative discretion, in carrying out the power granted. The poUtieal nature of the power is thus retained. The learned judge who delivered the opinion at Special Term in the Pond case himself admits that some discretion is vested in the legislature and that in the nature of things it must be so left. He was of opinion that the discretion thus vested in the legislature had been overstepped and that the consti- tution had been thereby violated, and that the courts could review and re- verse this action of the legislature. Discretion is necessarily reposed in the legislature because of the direc- tion of the constitution that in making up the senate districts they must at all times consist of contiguous terri- tory and that no county shall be §66.] BEVISION BY THE COTJETS. 401 tionment and elected legislatures divided in the formation of a senate district, except such county shall be equitably entitled to two or more senators. It is also provided that in apportioning members of assembly every county shall be entitled to one member. "This renders the mathematical process impossible, both as regards senate districts and the apportionment of members of assembly. We start then with the proposition that to the legislature is intrusted some discretion in the matter of apportionment. Is the court to interfere with such power whenever it thinks that the legisla- ture might in its exercise possibly have come nearer to an equality, after complying with the special conditions mentioned in the Constitution? This would be to assert a power in the court to supervise the use of the discretion granted to the legislature, if such discretion were exercised in the slightest degree after the consti- tutional mandate in regard to county lines and county members had been complied with. We do not believe in the propriety or necessity of any such rule. On the contrary, we think that the courts have no power in such case to review the exercise of a discretion intrusted to the legislature by the Constitution, unless it is plainly and grossly abused. The expression ' as nearly as may be,' when used in the Constitution with reference to this subject, does not mean as nearly as a mathematical process can be followed. It is a direction addressed to the legislature in the way of a general statement of the principles upon which the apportionment shall in good faith be made. The legislative purpose should be to make a district of an equal number of inhabitants as nearly as may be, and how far that may be carried out in actual practice must under it for a period of six years depend generally upon the integrity of the legislature. We do not in- timate that in no case could the action of the legislature be reviewed by the courts. Cases may easily be imagined where the action of that body would be so gross a violation of the Consti- tution that it could be seen that it had been entirely lost sight of and an intentional disregard of its commands both in the letter and in the spirit had been indulged in." Judge Gray said (at pp. 511-513) : " It was apparent that greater or less inequalities must arise in an appor- tionment and that, after each county had received its full number of as- semblymen, according to the ratio of apportionment established, there would remain some members to be dis- tributed among those counties having excesses of population over the ratio. The contention of counsel is that that distribution must be in the order of the highest excesses, or remainders over, and any discretion in the matter is denied. In the present case, for in- stance, there were eleven members of assembly to be so distributed among counties having fractional excesses, and the showing is that three were apportioned out of the strict order in which those excesses stood. It may be remarked, in passing, that in an apportionment of one hundred and twenty-eight members among the counties, this showing evidences no glaring departure from strict equality, nor any scheme to defraud the people in the matter of representation. It is the general rule of law that the courts have no concern with the motives of the legislative body in passing an act. If they find the power conferred to so enact, they may not intervene to pre- vent the execution ; and at all times they should be slow to interfere with the legislative department of power. 402 APPOETIONMENT. [chap. vm. had not validated the same.^^ Inequality in apportionments is 12 Giddings d. Blacker, 93 Mich., 1. If there were here a flagrant disre- gard and an unmistakable violation of the constitutional injunction that the apportionment should be 'as nearly as may be ' according to the number of citizens, the courts might feel justified in declaring the act void for unconstitutionality. But we have no reason to impute any fraudulent motives, and the showing of three instances of departure from a method- ical apportionment is not enough to evidence any deliberate violation of the constitutional requirement. The legal presumption is in favor of the constitutionality of every act of the legislature, and that presumption is not overcome in this instance, where the legislative act simply evidences the exercise of discretion in perform- ing a political duty. We may concede that adherence to a simply mathe- matical system of distribution of members among the counties, in the order of their excesses, of population over the ratio, is the better rule ; but deviations may be demanded by public exigencies. Some consideration muet be had of the difficulties which en- viron the passage of an act of appor- tionment, in the conflicting claims and demands of representatives ; some latitude of action must be permitted in considerations which pertain to the geographical situation and neces- sities of counties, and some allowance must be made for active opposition engendered by political feeling. As the bill was reported, an exact and mathematical apportionment ap- peared, but to secure the passage of the act some changes were made by the legislature. I do not think that the legislature is to act as a mechani- cal contrivance for the mathematical distribution of members of assembly. The Constitution does not say so in unmistakable terms, and, if it does not, courts should hesitate to assert it. Something is confided to the wisdom and judgment of the legis- lative body in performing this consti- tutional duty, and if in the execution of the duty the result is not perfect, the courts should presume that the legislature endeavored to accomplish it as nearly as might be. I think, according to a logical and candid view of the constitutional requirement, it might be impracticable, unless there was some discretion vested in the legislature with respect to carrying it into effect. There has been no abuse of this discretion and for us to adjudge the act unconstitutional and to declare it void, would be, in my judgment, a most unwise construc- tion, and would be to arrogate a power of interference, as dangerous in the precedent as it seems unwarranted in the law." Both of these judges belonged to the same party as the majority of the legislature which had passed the act in question. In the dissenting opinion Judge Andrews (with whom concurred the only other judge of the party In the minority in both the Court and the Legislature) said (at pp. 517-519) : "The argument urged upon us that the words ' as nearly as may be ' give a discretion to the legislature, if it means anything, as applied to the circumstances of this case, means that the legislature may disregard the plain meaning and mandate of the Constitution. I deny that the rule that apportionment must be ' as nearly as may be ' according to population is, or under any circumstances can be discretionary. I can conceive that an apportionment act should not be §66.] REVISION BY THE COURTS. 403 directed in the New York and a few other State constitutions, which ordain for the benefit of the country districts, that certain held to be unconstitutional for every trivial departure from the rule of equality. Some mistakes will inevi- tably be made in the enumeration in the first instance, and afterwards by the legislature in making the appor- tionment although it may act under the most sincere desire to apply the rule of the Constitution. But because the apportionment cannot be exact according to population, and some inequality is unavoidable, this does not absolve the legislature from apply- ing the rule in every case, and it can- not under the cover of the words ' as nearly as may be ' disregard the rule and relegate the proceeding to the domain of discretionary powers and escape its binding obligation. When the court can see that the rule of the Constitution was not in fact applied and the circumstances for its application were clear and unequivo- cal, then there is nothing left to the court but to declare the apportion- ment void. The suggestion that the circumstances under which legisla- tures act in such matters give oppor- tunity for the play of passion and prejudice, and therefore this must be considered in determining the validity of an apportionment act, seems to me to have no place in this discussion. The very object of constitutional re- strictions is to establish a rule of conduct which cannot be varied ac- cording to the passion or caprice of a majority, and to fix an immutable standard applicable under all circum- stances. If a departure from the fundamental law by legislatures can in one case be justified by the frailties of human nature, and the constitu- tionality of an act may be made to depend in one case upon such a con- sideration, the constitutionality of all legislation may be governed by the same rule. I have said the very object in imposing restraints in the Constitution is to protect great prin- ciples and interests against the opera- tion of such eccentric and disturbing forces. The discretion of the legis- lature, if any, in apportioning mem- bers, ends where certainty begins, and that point was reached when the counties having the largest remainders were ascertained. The attempt to justify the apportionment of 1892 by the fact asserted (which seems to be true), that the apportionment of 1879 was subject to as great or greater objection on the score of inequality than the later act, fails because the fact is irrelevant. It is one thing that a legislature has disregarded its duty on a former occasion and that the people have acquiesced in the usurpation, and quite a different and much more serious thing if such a disregard of constitutional limitation should receive judicial sanction." Judge Andrews said (at p. 521) : " I shall not undertake to show that the question presented is of judicial cognizance. That it is a judicial question cannot, under the authori- ties, be denied. The legislature and the courts are alike bound to obey the Constitution, and if the legisla- ture transgresses the fundamental law and oversteps in legislation the barriers of the Constitution, it is a part of the liberties of the people that the judicial department shall have and exercise the power of protecting the Constitution itself against in- fringement." To a similar effect with the opinion of the majority in the above case are Prouty «. Stover, 11 Kansas, 235; State V. Campbell, 48 Ohio St., 435. In the 404 APPOETIONMENT. [chap. VIII. large cities shall receive less representatives than the number to wliich their population entitles them. The usual means of testing W. Rep. 724; the Supreme Court of Wisconsin held unanimously that, under the provision of the Constitution of that State (article iv, § 4), that assembly dis- tricts shall be " bounded by county, pre- cinct, town or ward lines," an act creat- ing assembly districts which contain one county and a fraction of another county, or which contain fractions of two or more counties is void ; that under the constitutional provision that an appor- tionment shall be "according to the number of inhabitants," an apportion- ment act which created senate districts varying in population from 38,690 to 68,601, and assembly districts varying in population from 6,823 to 38,801 was void ; and that a bill by the State attor- ney-general on behalf of the State to en- join the Secretary of State from pub- lishing notices of election in accordance with the act should be sustained. Judge Orton said (at p. 484) : "It is proper to say that perfect exactness in the apportionment according to the number of inhabitants is neither re- quired nor possible. But there should be as close an approximation to exact- ness as possible, and this is the utmost limit for the exercise of legislative dis- cretion. If, as in this case, there is such a wide and bold departure from this constitutional rule that it cannot possi- bly be justified by the exercise of any judgment or discretion, and that evinces an intention on the part of the legislature to utterly ignore and disregard the rule of the Constitution in order to promote some other object than a constitutional apportionment, then the conclusion is inevitable that the legislature did not use any judgment or discretion what- , ever. The above disparity in the num- ber of inhabitants in the legislative dis- tricts is so great that it cannot be over- looked as mere careless discrepancies or slight errors in calculation. The differ- ences are too material, great and glaring, latter case, which was an application for a mandamus to compel an altera- tion of an apportionment of repre- sentatives made by a State board, the court said : " It is not sufficient in this proceeding that we might be of the opinion that we could make a better apportionment than has been made by the Board. To authorize this court to interfere and command the Board to make another apportionment, the apportionment made must so f?ir vio- late the rules prescribed by the Con- stitution as to enable us to say, that what has been done is no apportion- ment at all and should be wholly disregarded. If by any fair construc- tion of the principles prescribed by the Constitution for making an appor- tionment the one made may be sus- tained, then it cannot be disregarded and a new one ordered." In Baird v. Supervisors, 138 N. Y., 95, 114, the court held void an appor- tionment of assemblymen that gave the same representation to districts in a city with 31,000 and 102,000 in- habitants respectively, with great vari- ations between those two extremes. But In the matter of Baird, 142 N. Y., 523, the same court refused to inter- fere with an apportionment in the same city which created assembly districts varying from 61,263 to 48,944, the number entitled to an assembly- man if the city were equally divided being 54,877. In matter of Whitney 142 N. Y., 531, they held that the fact that the apportionment was made with reference to the entire population in- clusive of aliens who were not voters was no ground for setting it aside when it was not shown that the in- clusion of the aliens materially affected the result. In State ex rel. Attorney-General v. Cunningham, 81 Wis. 440; s. c. 51 N. 66.] EEVISION BY THE COURTS. 405 the constitutionality of an apportionment before the courts is by an and deprive too many of the people of the State of all representation in the legislature to he allowed to pass as mere errors of judgment. They hear upon their face the intrinsic evidence that no judgment or discretion was exercised, and that they were made intentionally and wilfully for some improper purpose or for some private end foreign to con- stitutional duty and obligation. It is not an ' apportionment ' in any sense of the word." The Constitution of Michigan provides that "every county except Mackinaw and Chippewa, entitled to a representa- tive in the legislature at the time of the adoption of this Constitution, shall con- tinue to be so entitled under this Consti- tution." "Each county having a ratio of representation and a fraction over equal to a moiety of said ratio, shall be entitled to two representatives, and so on above that number, giving one ad- ditional member for each additional ratio " (Schedule 22). In Board of Supervisors of the County of Houghton, 92 Mich., 638 ; S. 0. 52 N.W. Eep. 951 ; It was held unanimously by a court of divided political opinion : that the Apportionment Act of 1891, which divided Houghton County so as to create one district of certain townships therein and another district of the remaining townships and two other counties, was void, since it deprived Houghton County of the two representatives to which its population entitled it; that the Appor- tionment Act of 1885, which in providing for the representation of fractions of the ratio gave a representation to fractions in counties which though more than a half were less than fractions in other counties left unrepresented, was also void ; and that unless before the election a new and valid apportionment should be made a mandamus must issue direct- ing the Secretary of State to give notice of an election under the Act of 1881. Chief Justice Morse said (pp. «51- 654) : " It is also claimed that the Con- stitution, in relation to the apportion- ment of Kepresentatives, cannot always be carried out in detail without violating some of its provisions. This is no doubt true, but it affords no argument in favor of the division of counties except in the cases provided by the Constitution. If one county can be dismembered, all of them can; and we might have, under the exercise of the legislative discretion, a representation ignoring counties alto- gether, and based solely upon the idea of equality of population . The schedule to the Constitution expressly provides that "every county, except Mackinaw and Chippewa, entitled to a Representa- tive in the Legislature" at the time of its adoption, shall continue to be so en- titled. When it is attempted to carry out this provision and to give each county organized since the Constitution was adopted one Representative for a moiety of the ratio, and also every county a member for each ratio and an additional member for a moiety of a ratio, and then limit the number of Kep- resentatives to 100, or any number which shall be the quotient of the divi- sion of the whole of the population of the State by the ratio, it will be found that it cannot always be done without denying to some county its constitu- tional right of representation. For in- stance, the ratio of representation at 100 members, under the census of 1890, is 20,938. Under this census and ratio, if the Constitution be followed in all of its provisions, the counties entitled to one or more Representatives under the moiety system use up 97 out of the 100 members, and there are still left 29 counties in the northern part of the State, vrith a population in round num- bers of 137,000, out of which to carve three districts, each with a population of over 45,000 — more than double the ratio ; so that two men would not have the representation in these districts that 406 APPOETIONMENT. [chap. vni. application for a mandamus to require a public officer to issue elec- one would have in the others. So far as I have examined, there has never been an apportionment but this difficulty- has been encountered ; and it has been a subject of much perplexity and vexa- tion in the Legislature. It has resulted always in the necessary denial to some county or counties of their full repre- sentation under the moiety system. This Court could not be called upon to en- force a constitutional provision incapa- ble of enforcement. In case of making as equitable a division as possible under the Constitution, — and that is all that can be required, — it must be within the discretion of the Legislature to deprive some of the counties of their representa- tion or additional representation upon the moiety plan ; for two ratios cannot always be given three Representatives, and at the same time limit the number of the whole to one for each ratio. But in such discretion the counties having the least number of inhabitants above the ratio or the moiety of the ratio should be the ones to suffer this depri- vation. For instance, in the present apportionment Houghton County, with a population of 35,389, was entitled, un- der the moiety plan, to two Representa- tives, as were also Sanilac, Tuscola, Menominee, Macomb, and Montcalm. These counties, in population, under the census of 1890, were as follows ; Me- nominee, 33,639, Montcalm, 32,637, San- ilac, 32,589, Tuscola, 32,508, Macomb, 31,813. Of these six counties, if three were to be left out, Houghton, Menomi- nee, and Montcalm were entitled to two members each, and Sanilac, Tuscola, and Macomb to one each. But the Legisla- ture gives two each to the last three, and only one to each of the first three above named, thus reversing the consti- tutional order of preference. Under the Constitution all of them are entitled to two, if the various provisions of the Constitution can be so worked out as to give each of them two. If they cannot, then the one or more left out should be those having the least population. There can be no legislative discretion, under the Constitution, to give a county of less population than another a greater repre- sentation. Such action would be arbi- trary and capricious, and against the vital principle of equality in our govern- ment, and it is not intended or permitted by the Constitution; nor could such action lead to any good result. There can be found no excuse for it. The re- lator prays that the Secretary of State deliver a notice to the sheriff of Hough- ton County that two Representatives are to be chosen in said county at the next election, and for such other and further relief as to the Court may seem proper in the premises. The special prayer cannot be granted. The board of supervisors have no power to divide Houghton County into two districts, un- less so authorized by the Legislature. Their action in this respect is null and void. But the people of the county are entitled to vote together for a Represen- tative. No portion of them can be de- tached and joined to another county. The Apportionment Act of 1891 is void, because it undertook to dismember Houghton County, and because the Con- stitution was also violated in giving counties two Representatives having a less population than counties which were accorded but one. "The law of 1885 is also unconstitu- tional, for the reason that the counties, or some of them, were given repre- sentation in defiance of the Constitu- tion, and without the discretion of which I have spoken. Bay County, with a population of 51,221, was given but two Representatives, while Lenawee County, with a less population, to wit, 49,584, was given three. This was not the exercise of constitutional discretion, but an arbitrary determination for some reasons other than a desire to conform to the Constitution. Under the moiety §66.] REVISION BY THE COUETS. 407 tion notices under the former, or for an injunction to prevent him clause, Bay, Lenawee, and St. Clair were entitled, in 1885, in the order named to three Representatives. If only one could be given this number, the Constitution required it should be Bay ; if two, Bay and Lenawee. " An examination of the Apportion- ment Act of 1881 shows it to have been ■within the constitutional discretion of the Legislature, and thei-efore the Sec- retary of State must give his notices under the law, unless a new and valid apportionment shall be made by the Leg- islature." The same court held unan- imously in Giddings ti. Blacker, Secre- tary of State, 93 Mich. 1; s. c, 52 N. W. Rep., 944; under a constitutional pro- vision that the legislature should after each census rearrange the Senate dis- tricts according to the number of white inhabitants, and civilized persons of Indian descent not members of any tribe (Michigan Constitution, Art. IV, Sec. 3) ; and that " no county shall be divided in the formation of Senate districts, except such county shall be equitably entitled to two or more Senators " (Michigan Constitution, Art. IV, Sec. 2) ; that the Apportionment Act of 1891, which under a ratio of 65,434 created senatorial districts of such diverse population that the largest had 97,330 and the smallest 39,727 inhabitants, that eight senators would represent districts with a population of 695,717, and eight other senators dis- tricts with a population of 349,156, was void ; that the Apportionment Act of 1885, which gave eight districts contain- ing a population of 316,778 the same number of senators as eight other dis- tricts with a population of 532,222 was also void; that the acquiescence in and use by the people of the system created by the Act of 1885 did not cure its unconstitutionality; and that a private citizen was entitled to a man- damus compelling the issue of election notices under the Act of 1881. The court intimated in its opinion that the rule suggested by Webster was the only correct one (pp. 7-8). Chief Justice Morse said (at pp. 10-13) : " It is evidently contemplated by the Con- stitution that the county shall be the essential factor in the formation of senatorial districts. ' No county shall be divided in the formation of Senate districts, except such county shall be equitably entitled to two or more senators,' is the prevailing idea of the organic provision. It is further con- templated that such districts shall be arranged according to the 'number of white inhabitants, and civilized persons of Indian descent not members of any tribe.' This equality of representation, however, is secondary to and hampered by the fact that no county can be divided, and a part of it attached to another county, or the part of another county, in order to make the districts equal, or nearly so, in population. This express inhibition against the division of a county gives, necessarily, great latitude to the legislative discretion, and the senatorial districts must of necessity not be as equally divided as to population as might be done if county lines could be disregarded. The Legis- lature undoubtedly could take a par- tisan advantage by making choice of different counties, and joining them together in one senatorial district, when such counties are contiguous, so that one Legislature of one political com- plexion, might put, for instance, Macomb and St. Clair in one district, while an- other of a different political complexion might join Macomb with Lapeer, and St. Clair with some other adjoining county, and not violate any constitu- tional rights of the electors of such dis- tricts. But, as shown by Mr. Justice Grant, the Legislature in the senatorial apportionment of 1891 went far beyond any legitimate discretion and violated the rules of equity, when it was not 408 APPOBTIONMENT. [chap. vm. from issuing election notices or filing returns under the new necessary, or even proper, to do so, because of the fact that a county could not be divided. The twenty-seventh and twenty-ninth districts lie contiguous to each other, so that there was no excuse for putting 97,330 people in one and only 40,033 in the other. " The senatorial apportionments of 1891 and 1885, which are before us, so that we are compelled to examine them, were neither of them arranged in view of the Constitution or the rights of the electors of this State. While it is true that the motive of an act need not be inquired into to test its constitutionality. I believe that the time for plain speak- ing has arrived in relation to the out- rageous practice of gerrymandering, which has become so common, and has so long been indulged in, without re- buke, that it threatens not only the peace of the people, but the permanency of our free institutions. The courts alone, in this respect, can save the rights of the people, and give to them a fair count and equality in representation. It has been demonstrated that the people themselves cannot right this wrong. They may change the political majority in the Legislature, as they have often done, but the new majority pro- ceeds at once to make an apportion- ment in the interest of its party, as un- equal and politically vicious as the one that it repeals. There is not an in- telligent school boy but knows what is the motive of these legislative apportion- ments, and it is idle for the courts to excuse the action upon other grounds, or to keep silent as to the real reason, which is nothing more nor less than partisan advantage taken in defiance of the Constitution, and in utter disregard of the rights of the citizen. Take our own State for example. In the election of 1884, the Eepublican candidate for Secretary of State had a plurality of 4,383 out of a total vote of 401,003. The Eepublican majority in the Legisla- ture of 1885 arranged the senatorial districts so that, upon the vote of 1884, 21 were Eepublican and 11 were Demo- cratic. In eight districts a population of 316,578 are given the same representa- tion in the Senate as are 532,222 people in eight other districts. The Upper Peninsula, with Emmet and Mackinac Counties added, is given three Senators, when it is only entitled to two; the population of the three districts — thirtieth, thirty-first and thirty-second — combined being 124,580, and the ratio 61,125. In 1890, the Democratic can- didate for Secretary of State received a plurality of 2,706 over the Eepublican candidate in a total vote of 398,611, and the Democratic majority in the Legis- lature of 1891 apportioned the senatorial districts so that, on the basis of the vote of 1890, 21 were Democratic and 11 Republican. As shown by Mr. Justice Grant, three districts were so divided that in eight of them a population of 349,156 have the same representation as 695,717 in eight other districts, and, in order to aid this inequality, the county of Saginaw is divided into two districts, when it is only entitled to one under the Constitution. It will thus be seen that, upon a plurality ot less than 5,000 in a total vote of about 400,000, each of these political parties has so gerry- mandered these senatorial districts that each has 21 senatorial districts to 11 of the other. If permitted to continue in this kind of business, the next Legis- lature to apportion Senators, if its politi- cal complexion should be different from the last, following in the footsteps of its predecessors, will easily change the figures about again, and give its party the 21 senators and the other the 11. It is time to stop it. And the citizen has the right to appeal to the Court in defense of his most sacred rights under the Constitution. He cannot be obliged to wait for prosecuting attorneys or the Attorney-General. It Is as well a pri- §66.] REVISION BY THE COTJETS. 409 law.^^ It has been held that a private citizen, who is a resident of a locality unconstitutionally deprived of its due proportion of representation by the apportionment, can obtain such a manda- mus 14 Where so much of the apportionment act as legally passed the vate as a public grievance ; and the in- dividual elector can invoke the aid of the Court in his own behalf, and caU attention also to the existence of a great public wrong. " There is no higher privilege granted to the citizen of a free country than the right of equal suffrage, and thereby to an equal representation in the making and administration of the laws of the land. Under our State Constitution the right of the elector is fixed. To him equal representation is a right as well as a privilege, of which the Legis- lature cannot deprive him. These wrongs have been committed for parti- san purposes. Their object and effect have been to deprive the majority of the people of their will in the adminis- tration of the government. The greatest danger to our free institutions lies to- day in this direction. By this system of gerrymandering, if permitted, a politi- cal party may control for years the government, against the wishes, protests, and votes of a majority of the people of the State, each Legislature, chosen by such means, perpetuating its political power by the like legislation from one apportionment to another. "We have been obliged, under the issue here made, to investigate but two apportionments, — those of 1891 and 1885. Both are tarred with the same stick. We do not care to go further, since there is a remedy in the hands of the Executive and Legislature. The con- sequences of this decision are not for us. It is our duty to declare the law, to point out the invasion of the Constitu- tion, and to forbid it." In North Carolina v. Van Bokelen, 73 N. C, 198 ; an act amending a city charter was held invalid because of an unfair apportionment of aldermen there- in contained. The court said : " So much of said act as gives to each of the first and second wards, with 400 votes each a representative of three aldermen, and to the third ward with 2,800 votes, also a like representative of three aldermen, violates the fundamental principles of our Constitution and is therefore void." In Parker v. State, ex rel. Powell, 133 Indiana, 178 ; s. c. 32 N. E. Eep., 836 ; s. c, on motion for rehearing 133 Indiana, 212 ; 33 N. E. Eep., 119 ; the Indiana apportionments of 1879, 1885 and 1891 were held unconstitutional ; but since the relator sought on account of the un- constitutionality of the last two to have the election held under the first, which was also void; his application was de-" nied. The Act of 1891 provided for 50 senators. As the voters were 551,048, an equal apportionment gave one sena- tor to each 11,020 voters. 40 counties were formed into 22 senatorial districts. 11 of those districts contained 23 coun- ties and 148,496 voters. The other 11 contained 20 counties and 99,609 voters. Each of them had the same number of senators, one to each district. The ap- portionment was held unconstitutional. 13 State ex rel. Attorney-General v. Cunningham, 81 Wis., 440 ; Board of Supervisors of the County of Hough- ton, 92 Mich., 638 ; s. c. 52 N. W. Eep., 951; Gid dings v. Blacker, Secretary of State, 93 Mich., 1 ; s. c. 52 N. W. Eep., 944; People ex rel. Carter v. Kioe, 135 N. Y., 473. " Giddlngs v. Blacker, Secretary of State, 93 Mich., 1; Nebraska v. Singleton, 24 Nebraska, 586 ; see also People ex rel. Daley d. Eice, 129 N. Y., 449. 410 APPORTIONMENT. [CHAP. VIK. legislature omitted any grant of representation to the inhabitants of a particular county, the court held that that county should re- tain the representation which it held under the preceding appor- tionment ; and that so much of the act as had legally passed and provided for representation to the remainder of the State, should be enforced.^^ As a general rule, the State constitutions proyide for a periodical apportionment after each new enumeration of their respective inhabitants. It has been held that in the intervening time no new apportionment can be made, either directly or by such a change in the boundaries of a political subdivision of the State as to change the different assembly or senatorial districts ; ^^ or to deprive part of the State of representation ; ^'' but in one case an act was sustained, which, after the new enumeration, but before the new apportionment, enlarged the boundaries of a city so as to include territory in one district which formerly belonged to another.^^ Whether the courts should respect the acts passed by the votes of representatives from districts not entitled to them by a constitutional apportionment, is a doubtful question.!^ § 67. The Census. The Constitution directs that — • ' ' the actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subse- quent Term of ten Years, in such Manner as they shall by Law direct." ' The first reported census was that by the emperor Yee in China, 2043 B. C. ; ^ unless that of the Hebrews made by Moses in the wilderness and described in the book of Numbers was earlier. In Rome, for the purpose of the division of the citizens into classes and centuries, an enumeration was taken every five years and fol- lowed by a sacrifice of purification or lustration, from which the 15 Nebraska!). Singleton, 24 Neb., 586. see People ». Pendegast, 96 Cal., 289; But see Ballentine v. Willey, 2 Idaho, s. c. 31 Pao. Eep., 103 ; People u. Mark- 1208 ; s. c. 31 Pac. Kep., 944. ham, 96 Cal., 262: s. c. 31 Pao. Rep., 102. 18 Kinney v. Syracuse, 30 Barbour w Attorney-General v. Bradley, 36 (N. ¥.), 349; Opinion of Judges, 33 Mioh., 447. Maine, 587. '■^ Compare State v. Francis, 26 " Warren v. Mayor, 2 Gray (Mass.), Kansas, 724 ; and 10 Gray, 613 ; with 84. Murphy v. Ehey (Maryland), 2 Atl. Baird v. Supervisors, 138 N.Y., 96, lU. Rep., 993 ; McPherson v. Bartlett, 65 § 67. i Article I, Section 2. Cal., 577 ; s. c. 4 Pac. Rep., 582. But ^ Appleton's Encyclopeedia. § 67.] THE CENSUS. 411 period derived the name of a lustrum. The name of census was derived from the officer in charge, an estimator or censor. In continental Europe, for the purpose of administration and police, such enumerations were taken irregularly or at stated intervals. During the eighteenth century ^ none was taken in England, how- ever ; and the first English census seems to have been that of 1801.* The committee on revenue under the Articles of Confederation recommended an amendment to provide for a triennial numbering of the inhabitants for the purpose of the apportionment of taxa- tion.^ In the Federal Convention various propositions concern- ing the time of the census were submitted. That of fifteen years was first adopted.^ A term of twenty years was then suggested, but the proposition was rejected ; and ten years chosen by the votes of eight States to two.'^ The direct and declared object of the census is to furnish a standard by which representatives and direct taxes may be appor- tioned among the several States which may be included in the Union ; ^ but its functions have been extended so that the govern- ment now collects at the same time statistics of all kinds. Under similar provisions in different State constitutions general statistics have also been usually collected. Governor David B. Hill of New York in 1885 vetoed a bill for a State census upon the ground that it provided for the collection of other statistics besides an enumeration of the inhabitants of the State.^ A Federal district judge dismissed as not supported by the acts of Congress, an indictment against an ofScer of a lumber company for his refusal to answer questions concerning its capital and busi- ness asked by officers taking the census of 1890. He said : — ■ ' ' It may not be amiss to suggest that there may be a limit to the power of congress to compel a citizen to disclose information concern- ing his business undertakings, and the manner in which they are carried on. This limit must relate, not only to the kind of information he may properly refuse to disclose, because it may be equivalent to the appro- 8 Ibid. 8 Chief Justice Marshall in Lough- * Eneyoloptedia Britannioa. borough v. Blake, 5 Wheaton, 317, 321. 6 Elliot's Debates, 2d ed., vol. v, p. « Veto message of May 27, 1885. 61. See supra, § 64, over note 13. State Papers of Governor Hill for 6 Ibid., p. 301. 1885, p. 154. 'Ibid., p. 305. 412 APPORTIOJSnVEENT. [CHAP. VIII. priation of private property for public use without just compensation, but also to the extent of the information required, as well as to the time within which it shall be given. Certain kinds of information valuable to the public and useful to the legislative brandies of the government as the basis for proper laws have heretofore been voluntarily given, and may properly be required from the citizen, when it is not of property value, or when the collection, compilation, and preparation thereof does not impose great expense and labor for which compensation is not pro- vided. It is not infrequent, however, that answers to questions pro- pounded in some schedules, if fully and properly prepared, involve the collection and compilation of facts that require the labor of a large force of clerks for days and weeks, entailing great expense and em- barrassment to the ordinary business of the citizen. Is it within the power of congress to make such answers compulsory, and require the citizen to neglect his usual business, with loss, and to prepare this in- formation at a great personal expense, without proper compensation? Or if a citizen, by his long experience in a special line of business, and by his superior organizing and adminstrative ability, has so systematized it that he can carry it on at a much less expense and with greater facil- ity than others, is it right to compel him to disclose the information so acquired, and thereby open to his rivals in trade the methods by which he has been able to outstrip them in the sharp competition for business ? Is not the system so established, and the knowledge so acquired, as much a property right to him as the land and shop in which he conducts his business? and can he be compelled to part with the former without due compensation more justly than with the latter? The zeal with which such information is sometimes solicited to maintain favorite theo- ries of public officials, or to afford the basis for discussing economical questions, often leads to excesses, and imposes upon the citizen duties for which no just compensation is afforded, either in money, or in his proportion of the reward of the good results to foUow to the public. As before stated, when such information is required as the basis for proper legislation or the just enforcement of the public laws, the power to compel its disclosure may exist, and, if unusual expense attends its preparation, proper remuneration to the citizen can be made ; but the suggestion that information having a property value may be demanded, which the citizen may not be obliged to impart without due compensa- tion, so earnestly impressed by the learned counsel in this case, still remains undisposed of, and a proper subject for consideration by con- gress in the future legislation that may be needed to enforce such de- mands by the census bureau. Of course, these suggestions are not in- § 68.] HISTORY OF DIRECT TAXES. 413 tended to apply to the power of congress to compel answers to questions, propounded to the officers of railroads, telegraph, and insurance compa- nies, corporations of a public character, over the business methods of which the legislative power may be asserted. As to such corporations, the public good requires that wholesome and strict supervision should be exercised, and all the information needed as the basis for such regula- tion and control should be produced when required." ^^ § 68. History of tlie Apportionment of Direct Taxes under the Constitution. The only direct taxes which Congress has apportioned have been taxes on lands, houses and slaves. The first was suggested by a report of Secretary Wolcott on direct taxes in December, 1796.^ That apportioned the sum of two millions of dollars among the states which were subdivided for that purpose, and the collection of each division was placed under the control of a commissioner, with assistant assessors, collectors, supervisors, and inspectors to assist him. The quota of every State was assessed upon houses, lands, dwelling-houses, and slaves. Houses were assessed according to a classified valuation at rates uniform throughout the entire coun- try ; and slaves between twelve and fifty years of age at fifty cents per head. So much of the quota of any State as was not covered by the levy upon houses and slaves was assessed upon lands and improvements at such rates as might be required to make up the deficiency. The tax was a lien upon the real estate and slaves of the person assessed for two years from the date when it became payable, and collection was enforced by the distraint and sale of personal property.^ Some provisions of the act were taken from the English land tax under William III.^ The next direct tax was under the Acts of July 22, 1813,* and August 2, 1813,^ of which the former provided for the assessment and collection, and the lat- ter for the apportionment. Under these acts, taxes of three mil- lions of dollars were apportioned among the counties in each State, with a provision that the State legislature might vary the county 1" Judge Eieks, in United States v. ^ Act of July 14, 1798, ch. 75, 1 Mitchell, 58 Fed. E., 973, pp. 999- St. at L., 53. 1000. ' 10 William III, ch. 9 ; 4 George § 68. 1 State Papers on Finance, III, oh. 2, §§ 3, 4. vol. i 414. * 3 St. at L., 22. ^ ibid., 53. 414 APPOKTIONMENT. [CHAP. VIU. quotas, provided such alterations were duly certified to the Secre- tary of the Treasury ; but that the levy according to such altera- tions should be made by virtue of the act of Congress, and not under the act of the State legislature.® The tax was levied on the value of lands, houses, and slaves, " at the rate each of them is worth in money." The act provided that any State " may pay its quota into the Treasury of the United States," and thus secure a deduction of fifteen per cent by paying before February 10, 1814, or of ten per cent by paying before May 1, 1814 ; "and no further proceedings shall thereafter be had under this act in such state." Seven States under the act assumed the payment of their quotas, in the other eleven the tax was collected by Federal officers like the tax of 1798.'' In 1815, an act was passed providing for an annual direct tax of six millions of dollars to be collected sub- stantially in the same manner as the direct tax of 1813.^ In 1816, the provision for an annual tax was repealed, and a tax of three millions of dollars imposed for the current year.^ In 1815 and 1816, four States assumed the payment of their quotas, and the collection was made by the United States in the other fourteen States.io The last direct tax was levied during the Civil War. Under the Act of August 5th, 1861, a direct tax of twenty millions of dollars was imposed for the expense of the Civil "War, which was to be collected in the same manner as the direct tax of 1813.^^ All of the Northern States, except Delaware and Colorado, assumed the payment of their quotas, largely by credits upon their accounts against the Government for military services and equipments. In « Act of August 2, 1813, § 63, St. visions of the Act of January 9, at L., 71. For an account of tlie at- 1815. tempt of the Committee of Ways and » Act of March 5, 1816, ch. 24, 3 St. Means to arrive at such a county ap- at L., 265. portionment, see their report, State i» Dunbar on The Direct Tax of Papers on Finance, ii, 628. 1861, Quarterly Journal of Economics, ' State Papers on Finance, ii, 860. vol. iii, 436-444. Dunbar on the Direct Tax of 1861, h Act of August 5, ch. 45, 12 St. at Quarterly Journal of Economies, vol. L., 294, the Act of June 7, 1862, oh. iii, 436-443. 98, 12 St. at L., 422, and the Act of 8 Act of January 9, 1815, ch. 21, 3 February 6, 1863, ch. 21, 12 St. at L., St. at L., 164. The Act of January 9, 640, provided for the collection of 1815, ch. 21, 3 St. at L., 216, applied this tax in the insurrectionary dis- to the District of (Columbia the pro- tricts. § 69.] DIRECT TAXES. 415 Delaware and Colorado, the tax was collected with other internal revenue of the United States after some delay. In the eleven insurrectionary States and the Territory of Utah, the Government was unable to collect more than a small portion of the tax, which was done through sales of lands.^^ The attempt to collect the balance was finally abandoned ; and in 1891, an act was passed which provided for the repayment to the different States of the amount thus advanced by them, with a provision that when any part of the tax had been collected from an individual tax -payer, the State of which he was a citizen should hold in trust for his benefit the same amount of the money returned.^^ The United States has the power to impose a direct tax upon the inhabitants of the District of Columbia or the territories, or to relieve the inhabitants thereof, or a part of the same, from direct taxation without regard to their population.^* The direct tax has never been a tax upon a State, but merely a tax upon the individuals in a State, which in certain cases the State had the right to assume.-*^ Congress has no power to im- pose a direct tax upon a State. § 69. Direct Taxes. The term, direct taxes, when used by modern economists, usu- ally denotes taxes of which the burden falls solely upon the tax- payer, such as a poll-tax or a sumptuary tax. All taxes, the burden of which may be shifted by the tax-payer upon another, are called by them indirect.^ They differ, however, in the appli- 12 Dunbar on The Direct Tax of ... "2d. Direct Taxation within the 1861, Quarterly Journal of Economics, Province in order to the raising of a vol. iii, 444-461. Kevenue for Provincial purposes." It ^ 26 St. at L., ch. 496, p. 822. has been held that the term is used w Loughborough v. Blake, 5 Whea- with the sense given to it by modern ton, 317. economists such as Mill. (Bank of 15 U. S. V. Louisiana, 123 U. S., 32, Toronto v. Lambe, L. K. 6 P. C. 272 ; 38. 12 Appeal Oases, 515; Attorney-Gen- § 69. 1 The British North America eral (Quebec) v. Keed, 10 Appeal Act (20 and 31 Vic, ch. 3, § 92) pro- Cases, 141) ; that a stamp act on vides that "in each province the policies of insurance companies was legislature may exclusively make laws an indirect tax (Attorney-General v. in relation to matters coming within Queen Insurance Co., 3 Appeal Cases, the classes of subjects next herein- 1090 ; Attorney-General (Quebec) v. after enumerated, that is to say : " Beed, 10 Appeal Cases, 141) ; but that 410 APPORTIONMENT. [CHAP. Vni. cation of this classification, and the subject is between them in great confusion.^ This is not the distinction intended by the Constitution. The subject in our constitutional law is one "ex- clusively in American jurisprudence." ^ In the Federal Conven- tion, when " Mr. King asked what was the precise meaning of direct taxation, no one answered." * And it is as hard to give the answer now as then. "Attempts to answer it by reference to the definitions of political economists have been frequently made, but without satisfactory results. The enumeration of the different kinds of taxes which Congress was authorized to impose was probably made with very little reference to their speculations." ^ At that time, the Manchester School, although founded by Adam Smith, had not obtained authority. Smith was never mentioned in the Convention.^ And he nowhere clearly appUes these defi- nitions to the terms. The French economists had more influence upon the leaders of American thought. Their doctrine, which is the butt of Voltaire's wit in " L'Homme k quarante ficus," seems to have been taken from the writings of John Locke.'' They taught that agriculture is the only productive employment; and that the net product from land, which is found in the hands of the land-owner, is the only fund from which taxation can draw with- out impoverishing society. Taxes were classified by them as direct when laid immediately upon the land-owner, and as indirect when laid upon some one else, since, according to their doctrine, des- tined to be borne ultimately by the land-owner. Taxes upon land, or its returns, they called direct taxes. Taxes upon com- modities, or consumption, indirect. They disagreed upon the question whether taxes upon persons were direct or indirect.* a tax on banks, proportioned to the ^ Madison Papers, Elliot's Debates, amount of their paid-up capital and 2d ed., vol. v, p. 451. the number of their officers is a direct 6 chiet Justice Chase in Veazie tax (Bank of Toronto v. Lambe, L. Bank v. Penno, 8 Wall., 533, 541-542. K. 6 P. C, 272). See Clement's Cana- e Supra, § 6, note 1. See, howeyer, dian Constitution, pp. 424-435 ; Dou- Gallatin's suggestion, that the term, tre's British North America Act. "capitation tax," was taken from 2 See an article by Prof. E. E. A. Adam Smith, in Gallatin's Writings, Seligman on the Income Tax in the Adams' ed., vol. iii, pp. 74, 75. Forum for March 5, 1891, vol. xix, ' Dowell's History of Taxation, vol. p. 48. ii, p. 124. 3 Mr. Justice Swayne in Springer v. 8 L'Ordre Naturel des Sooifitfis Po- ll. S., 102 U. S., 586, 602. litiques, in Daire's Physioerates, 474. § 69.] DIEBCT TAXES. 417 Turgot, however, classified taxes upon persons as direct.® The apportionment of taxes upon real estate had been previously applied in England as well as France. The English land tax, since the reign of William III, had been apportioned among the counties and other local subdivisions, leaving the rate for each locality to be settled at the point necessary to give the due quota. i" The French taille rSelle, a tax on the value of the use of real property, was laid by apportionment among the provinces, each of which determined the manner in which its quota should be col- lected ; and its substitute, the impdt fonder, since 1790, has been similarly collected. The French capitation tax, before the Revo- lution, was also thus coUected.ii It is not unlikely that the French definitions were in the mind of Gouverneur Morris when he introduced the term direct taxes into the Constitution.^^ The same uncertainty as to the meaning of the term prevailed in the State conventions. In that of New York, Chancellor Liv- ingston said that direct taxes were " taxes on land and specific duties" as distinguished from an impost or tariff on imports.^^ Jay concurred in this view, saying : " Direct taxes were of two kinds, general and specific." The national government would, without doubt, usually embrace those objects •which were uni- form throughout the States, for the usual specific articles of lux- ury.i* In that of Virginia, John Marshall said : — ForQuesnay'suseof thetermsinques- i" 10 William III, ch. 9. SeeDoweU's tion, see Daire, vol. 1, pp. 83, 127 ; and History of Taxation and Taxes in for Dupont de Nemours', ibid., vol. ii, England, vol. iii, pp. 94-97. pp. 354^58. Cited from Thayer's Con- " Pizard, La France, en 1789, 257; stitutional Cases, p. 1326. De Parieu, Traitg de I'lmpot, vol. i, ^ In his plan he thus classifies pp. 153, 224. Cited from Thayer's taxes: "II n'y en a que trois possi- Constitutional Cases, p. 1326. bles : — La directe sur les fonds. La ^ This origin of the phrase " direct directe sur les personnes, qui devient taxation " was first suggested in Ham- un imp6t sur Sexploitation. L'impo- ilton's "brief in the Carriage Tax Case sition indireote, ou sur les consomma- (Hamilton's Works, vol. vii, p. 845), tions." See also to the same effect and was demonstrated in a valuable 4 Geo. Ill, ch. 2 ; his " Comparaison de paper by Professor Charles P. Dunbar, rimp6tsurleK6venudesProprietaires on the Direct Tax of 1861, Quart. Jour- et de rimp6t sur les Consommations," nal Econ., vol. iii, p. 436 (A. D. 1889). which was a memoir prepared for the 8upra,% 6, notes 1 and 2 . use of Franklin. Daire, Physiocrates, is Elliot's Debates, 2d ed.,vol. ii, p. i, 394, 396, 409. Cited from Thayer's 341. Constitutional Cases, p. 1326. " Ibid., p. 381. 418 APPOBTIONMENT. [CHAP. Vin. " The objects of direct taxes are well understood. They are but few. What are they? Lands, slaves, stock of all kinds, and a few other articles of domestic property." ^^ In 1794 Congress imposed a tax upon carriages, to be paid by the owners wherever they might be, without any apportionment amongst the several States. It was opposed, before its passage, as an unapportioned direct tax, and consequently unconstitutional. Madison wrote to Jefferson, May 7th, 1794: — ' ' The tax on carriages succeeded in spite of the Constitution by a majority of twenty, the advocates of the principle being re-enforced by the adversaries to luxuries . " " Some of the motives which they decoyed to their support ought to premonish them of the danger. By breaking down the barriers of the Constitution, and giving sanction to the idea of sumptuary regulations, wealth may find a precarious defense in the shield of justice. If luxury, as such, is to be taxed, the greatest of all luxuries, says Paine, is a great estate."" The danger which he foresaw, at the end of a hundred years be- came manifest to all. In a subsequent letter, February 7th, 1796, he said of the case which upheld the tax : " There never was a question on which my mind was better satisfied, and yet 1 have little expectation that it will be viewed in the same light by the court that it is by me." i'' On the argument of the question be- fore the Supreme Court of the United States, in what appears to have been a moot case,^^ Alexander Hamilton was selected to rep- resent the government.!^ jjg showed the injustice of the appor- tionment of a tax of this character, and suggested that a boundary line between direct and indirect taxes be settled by " a species of arbitration," and that direct taxes be considered only " capitation or poll-taxes, and taxes on lands and buildings and general as- sessments, whether on the whole property of individuals, or on their whole real or personal estate. All else must, of necessity, be considered as indirect taxes." His views prevailed. The Court 16 Ibid., vol. ill, p. 229. dred and twenty-five chariots, "kept w Madison's Writings (Congres- exclusively for the defendant's own sional ed.), vol. ii, p. 14. private use and not to be let out for 17 Ibid., p. 77. hire or for the conveyance of persons 18 It is hard to believe that Hylton, for hire." the defendant in the Circuit Court, " His brief on the "carriage tax" had, as stated in the report, one hun- is still in existence, and may be found § 69.] DIRECT TAXES. 419 held that a tax on pleasure-carriages was not a direct tax.^** The main ground of the judgment was thus stated by Mr. Justice Chase : " It appears to me that a tax on carriages cannot be laid by the rule of apportionment without very great inequality and injustice. For example, suppose two states equal in census to pay eighty thousand dollars each by a tax on carriages of eight dollars on every carriage ; and in one State there are one hun- dred carriages and in the other one thousand. The owners of carriages in one State would pay ten times the tax of owners in the other. A in one State would pay for his carriage eight dollars ; but B in the other State would pay for his carriage eighty dollars." ^^ Judge Paterson said : — " Whether direct taxes in the sense of the Constitution comprehend any other tax than a capitation tax and a tax on land is a questionable point. If Congress, for instance, should tax in the aggregate or mass things that were generally approved by the States in the Union, then, perhaps, the rule of apportionment would be the most proper, especially if an assessment were to intervene. This appears from the practice of some of the States to have been considered a direct taxation. Whether it be so, under the Constitution of the United States, is a matter of some difficulty ; but as it is not before the court it would be improper to give any decisive opinion upon it. I never entertained a doubt that the principal — I will not say the only — objects that the framers of the Constitution contemplated as falling within the rule of apportionment were a capitation tax and a tax on land. It is not necessary to deter- mine whether a tax on the product of land be a direct or indirect tax. Perhaps the immediate product of land, in its original and crude state, ought to be considered as the land itself ; it makes part of it, or else the provision made against taxing exports would be easily eluded. Land independently of its produce is of no value. All taxes on ex- penses or consumption are indirect taxes." ^'^ For one hundred years this decision was treated as a final set- in Hamilton's Works, 1st ed., vol. ix, Appendix, part 1, p. 294.) There is p.848; and 2d ed., vol. vii, p. 845. Ac- no record of his appearance in the cording to Judge Tucker, John Mar- suit. (Pollock v. Farmer's Loan and shall took part in the argument at Trust Co., 158 U. S., 601, 626.) Washington and was "supposed to 20 Hylton «. U. S., 3 Dallas, 171. have defended his own private opin- 21 ibid., p. 174. ion." (Tucker's Blackstone, vol. i, ^^ ibid., p. 177. 420 APPOKTIONMBNT. [CHAP. Vni. tlement of the question. In Ms " Sketch of the Finances of the United States," published in November, 1796, Albert Gallatin said : — ' ' The most generally received opinion, however, is that, by direct taxes in the Constitution, those are meant which are raised on the capi- tal or revenue of the people, by indirect means, such as are raised on their expense." " That opinion is in itself rational, and conformable to the decision which has taken place on the subject of the carriage tax." ^5 Five times has Congress imposed direct taxes which were ap- portioned among the States, and in each case land and slaves, who by the laws of some States were real estate, alone were included.^ Congress acted upon this rule, with the approval of Madison, by the imposition of taxation without apportionment upon specific articles of personal property witliin the United States, such as the tax on domestic manufactures,^ and upon " all household furni- ture kept for use," and gold and silver watches.^ The exigencies of the Civil War strained the resources of both parties to the utmost. The Confederate authorities had more hesitation over constitutional scruples than those of the United States, and the fall of their government was hastened by their inability to raise funds through direct taxation, an apportionment being impossible without danger of jealousies and consequent disruption.^'' The United States imposed a tax upon successions to real and personal property, taxes upon the gross receipts and profits of corporations, a tax upon notes issued by banks, a tax upon unmanufactured cotton, and a tax upon all incomes above moderate amounts.^ All of these were held constitutional ; ^9 the cotton tax, which was at- tacked as both a direct tax and a tax upon exports, by a divided court.^° 28 Gallatin's "Writings, Adams' ed., tax, are reprinted in the Appendix to vol. ill, p. 74. Foster and Abbot on tlie Income Tax 2* Supra, § 68. of 1894. 23 Act of Jan. 18, 1815, 3 St. at L., 29 Pacific Insurance Co. v. Soule, 7 p. 180. Wall., 433; Veazie Banls; v. Fenno, 8 26 Ibid., p. 186. Wall., 533, 546; Scholeyr. Eew, 23 2' Supra, § 37, note 56. Wall., 331 ; Springer d. TJ. S., 102 U. S., 28 All Of these acts, except those 586. imposingthe succession and the cotton ^o Swpra, § 38, note 117. § 69.] DIRECT TAXES. 421 In the case which held that the general tax upon incomes was not a direct tax, Mr. Justice Swayne said : — " Our conclusions are that direct taxes within the meaning of the Constitution are only capitation taxes as expressed in that instrument, and taxes on real estate." '^ After the income tax had been collected for more than six years and some of the decisions which sustained it had been made, the section of the Constitution relating to the apportionment of representatives and direct taxes was amended by the Fourteenth Amendment so as to change the rule as to representation; but that as regards taxation was left unaltered, it being the general un- derstanding that it did not apply to taxes upon income.^^ In 1894, in reliance upon this construction of the Constitutioh, in which all three of the departments of the government and the States had acquiesced, an attempt was made by its aid to accom- phsh that which the section had been adopted to prevent. The representatives of the new States in the West against whose action Gouverneur Morris had warned the other members of the Con- vention, combined with those of the South to oppress the States upon the North Atlantic coast. An unapportioned income-tax was imposed upon the revenues of individuals exceeding four thousand dollars, and on corporate incomes of all amounts, with the exemption, however, of some of the richest in the country, such as mutual insurance companies and ecclesiastical corpora- tions ; of which at least four-fifths,^^ and probably a much larger proportion, was payable by four States, — New York, New Jersey, Pennsylvania and Massachusetts, — while in a number of the States that voted for it the incidence of the tax did not affect more than a very few individuals. The constitutionality of this pro- ceeding, by the consent of the Attorney-General, who waived all questions of jurisdiction, was brought before the Supreme Court before the tax was payable. In their first decision the court held unanimously that so much of the tax as applied to the income from municipal bonds was void, since those securities could not be taxed by the United States ; and by a majority of four to two, that " Springer t). V. S., 102 U. S. 586, White in Pollock v. Farmer's Loan 602. and Trust Co., 158 U. S., 601, 715. 82 See the dissent of Mr. Justice ss Mr. Choate's Argument in Pol- 422 APPORTIONMENT. [CHAP. VIU. SO much as applied to rents was also void, as a tax upon real estate, and consequently a direct tax which must be apportioned. They divided equally on the questions whether the invalidity of this part destroyed the rest; and whether the tax on the general in- come from personal property was also void as a direct tax.^ A reargument was ordered, wMch Mr. Justice Jackson, whose illness had prevented his previous presence, left his death-bed to attend. He voted to sustain all of the act that did not apply to munici- pal bonds ; but Mr. Justice Shiras, who on the first decision had voted to sustain so much as did not apply to rents, changed Ms mind ; and by a majority of five to four the whole income-tax was held to be void, as a direct tax which had not been apportioned.^ In consequence of this decision the only definition of direct taxes that can be formulated with any assurance is as follows : Direct taxes are taxes on land, poll-taxes, and, as long as a majority of the Supreme Court are of the same mind, taxes on rents and general taxes upon personal property and incomes which are not confined to a special class, although with large classes of exemp- tions.^^ The arguments on either side of this great case are so masterly presented in the opinions and the briefs of counsel, that a sum- mary would be not only inadequate but superfluous. Now that the dust has not yet gathered upon the papers, it seems impossible lock t). Parmer's Loan and Trust Co., whatever, brought into, produced, 157 U. S., 429, 533; David A. Wells in manufactured or being within the The Forum for March, 1894, vol. xvii, same." It has been held that taxes P- 1- upon occupations (Portland Bank v. 3* Pollock V. Parmer's Loan and Apthorp, 12 Mass., 252, 256), sucoes- Trust Co., 157 U. S., 429. sions of every character (Minot v. ^ Pollock V. Parmer's Loan and Winthrop, 162 Mass., 113), and cor- Trust Co., 158 U. S., 601. porate franchises (Commonwealth v. 36 The Constitution of Massachu- Hamilton Manufacturing Co., 12 Allen setts (Part II, Ch. I, Art. IV) gives to (Mass.), 298, 307 ; s. c. as Hamilton the General Court power " to impose Company v. Massachusetts, 6 Wall, and levy proportional and reasonable 632 ; Commonwealth v. Provident In- assessments, rates and taxes upon stitution, 12 Allen, 312 ; s. c. as Provi- all the inhabitants and persons resi- dent Institution v. Massachusetts, 6 dent and estates lying within the Wall., 611; Commonwealth v. Lan- said Commonwealth ; and also to caster Savings Bank, 123 Mass., 493, impose and levy reasonable duties and Connecticut Insurance Co. v. Corn- excises upon any produce, goods, mon wealth, 133 Mass., 16), are "excises wares, merchandises and commodities upon commodities." § 69.] DIRECT TAXES. 423 for a commentator to discuss the question without bias, even were he so rash as to attempt to add to what was said by the eminent men who were engaged. The reasons assigned by the majority were chiefly historical, designed to show that when the Constitution was adopted such a tax would have been considered as direct, and necessarily appor- tioned. In this it seems that they were successful. The chief reliance of the minority was on the principle stare decisis. They contended that the court ought not to overturn a construction of the Constitution settled by repeated decisions of their prede- cessors in the judiciary as well as acts of the other two depart- ments of the government, which they contended had been un- disturbed for over one hundred years. They argued, moreover, that the impossibility of the just apportionment of such a tax proved that it could not be within the intention of the Constitu- tion; that the decision crippled the United States by depriving them of a power which might be indispensable to the successful conduct of a foreign war, when their ports were blockaded and so little revenue could be derived from a tariff ; that it perpetu- ated a system of taxation unfair to the poor; and finally that it prevented the government from imposing upon the rich their just share of the public burdens. One effect of the decision has been salutary. It has defeated an odious scheme of class-legislation. If upheld it will be a safe- guard to property from any spoliation under the guise of Federal taxation, give encouragement to a new doctrine of State rights that may be of other assistance in the future,^" and afford a check to waste of the national treasury. Upon the other hand it has raised an obstacle against the further reduction of an op- pressive tariff. It has shorn the United States of a power that might be essential to their preservation in case of war. And it has given a blow to settled principles of constitutional construction which makes no decision of the past seem any longer secure.^ 8' See swpra, § 41. discuss the rules for the construction 38 In the last volume the writer will of the institution. APPEN^DIX TO CHAPTEE YIII. JEFFERSON'S OPINION ON THE APPORTIONMENT OF 1792. " The Constitution has declared that representatives and direct taxes shall be apportioned among the several States according to their respec- tive numbers ; that the number of representatives shall not exceed one for every 30,000, but each State shall have, at least, one representa- tive ; and, until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts, &c. ' ' The bill for apportioning representatives among the several States, without explaining any principle at all which may show its conformity with the Constitution or guide future apportionments, says, that New Hampshire shall have three members, Massachusetts sixteen, &c. We are, therefore, to find by experiment what has been the principle of the bill; to do which, it is proper to state the Federal or representable numbers of each State, and the members allotted to them by the bill. They are as follows : — ■ "Vermont 85,532 3 New Hampshire 141,823 5 Massachusetts 475,327 16 Rhode Island 68,444 2 Connecticut 235,941 8 New York 352,915 11 New Jersey 179,556 6 Pennsylvania 432,880 14 Delaware 55,538 2 Maryland 278,513 9 Virginia 630,558 21 Kentucky 68,705 2 North Carolina 353,521 11 South Carolina 206,236 7 Georgia 70,843 2 3,636,312 120 " It happens that this representation, whether tried as between great and small States, or as between North and South, yields, in the present instance, a tolerably just result, and consequently could not be objected to on that ground, if it were obtained by the process prescribed in the 424 APPENDIX.] JEFFERSON ON APPORTIONMENT. 425 Constitution ; but, if obtained, by any process out of that, it becomes inadmissible. "The first member of the clause of the Constitution above cited is express, — that representatives shall be apportioned among the several States according to their respective numbers; that is to say, they shall be apportioned by some common ratio, for proportion and ratio are equivalent words ; and it is the definition of proportion among numbers, that they have a ratio common to all, or, in other words, a common di- visor. Now, trial will show that there is no common ratio or divisor which, applied to the numbers of each State, will give to them the num- ber of representatives allotted in this bill ; for, trying the several ratios of 29, 30, 31, 32, 33, the aUottments would be as follows : — 29 30 31 32 33 The Bill " Vermont .... . 2 2 2 2 2 3 New Hampshire . 4 4 4 4 4 5 Massachusetts ; . . . . 16 15 16 14 14 16 Ehode Island . . . 2 2 2 2 2 2 Connecticut . . . 8 7 7 7 7 8 New York .... . 12 11 11 11 10 11 New Jersey . . . . 6 6 6 5 5 6 Pennsylvania . . . . . 14 14 13 13 13 14 Delaware .... . 1 1 1 1 1 2 Maryland .... . 9 9 8 8 8 9 Virginia .... . 21 21 20 19 19 21 Kentucky .... . 2 2 2 2 2 2 North Carolina . . . 12 11 11 11 10 12 South Carolina . . . 7 6 6 6 6 7 Georgia . 2 2 2 2 2 2 118 112 109 107 105 120 ' ' Then the bill reverses the constitutional precept ; because, by it, representatives are not apportioned among the several States according to their respective numbers. " It will be said, that, though for taxes there may always be found a divisor which wiU apportion them among the States according to numbers exactly, without leaving any remainder ; yet for representatives there can be no such common ratio, or divisor, which, applied to the several numbers, will divide them exactly, without a remainder or frac- tion. I answer, then, that taxes must be divided exactly, and represent- atives as nearly as the nearest ratio will admit, and the fractions must be neglected ; because the Constitution wills, absolutely, that there bo an apportionment or common ratio; and if any fractions result from the operation, it has left them unprovided for. In fact, it could not but foresee that such fractions would result, and it meant to submit to them. It knew they would be in favor of one part of the Union at one 426 JEFFERSON ON APPORTIONMENT. [CHAP. VIH. time and of another part of it at another, so as, in the end, to balance occasional inequalities. But, instead of such a single common ratio or uniform divisor, as prescribed by the Constitution, the bill has applied ttvo ratios at least to the different States, to wit, that of 30,026 to the seven following. Rhode Island, New York, Pennsylvania, Maryland, Virginia, Kentucky, and Greorgia; and that of 27,770 to the eight oth- ers ; namely, Vermont, New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, North Carolina, and South Carolina. As fol- lows : — Bhode Island, New York, Pennsylvania, Maryland, Virginia, Kentucky, Georgia, 68,444 352,915 432,880 278,513 630,558 68,705 70,843 CD CM O 2 o 11 CO 14 ■^ t 9 21 S 2 '> 2 P and Vermont, New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, North Carolina, South Carolina, o 85,532 141,823 i> 475,327 0^ 235,941 XJ % 179,556 T3 'So 0) 55,538 2 353,521 '> 206,236 P 3 5 16 8 6 2 13 7 ' ' And if two ratios may be applied, then fifteen may, and the dis- tribution become arbitrary, instead of being apportioned to numbers. " Another member of the clause of the Constitution, which has been cited says ' the number of representatives shall not exceed one for every 30,000, but each State shall have at least one representative.' This last phrase proves that it had in contemplation, that all fractions, or numbers below the common ratio, were to be unrepresented ; and it pro- vides specially that, in the case of a State whose whole number shall be below the common ratio, one representative shall be given to it. This is the single instance where it allows a representation to any smaller number than the common ratio, and by providing specially for it in this, shows it was understood that, without special provision, the smaller number would, in this case, be involved in the general principle. " The first phrase of the above citation, that ' the number of repre- sentatives shall not exceed one for every 30,000,' is violated by this bill, which has given to eight States a number exceeding one for every 30,000, to wit, one for every 27,770. ' ' In answer to this, it is said that this phrase may mean either the thirty thousands in each State, or the thirty thousands m the whole Union; and that, in the latter case, it serves only to find the amount of the whole representation, which, in the present state of population, is one hundred and twenty members. Suppose the phrase might bear both meanings,- which will common sense apply to it? Which did the universal understanding of our country apply to it? Which did the Sen- ate and Representatives apply to it during the pendency of the first bill, APPENDIX.] JEFPEESON ON APPOKTIONMENT. 427 and even till an advanced stage of this second bill, when an ingenious gentleman found out the doctrine of fractions, — a doctrine so difficult and inobvious as to be rejected at first sight by the very persons who afterwards became its most zealous advocates? The phrase stands in the midst of a number of others, every one of which relates to States in their separate capacity. Will not plain common sense then, under- stand it, like the rest of its context, to relate to States in their separate capacities ? "But if the phrase of one for 30,000 is only meant to give the ag- gregate of representatives, and not at all to influence their apportion- ment among the States, then the one hundred and twenty being once found, in order to apportion them we must recur to the former rule, which does it according to the numbers of the respective States : and we must take the nearest common divisor as the ratio of distribution, that is to say, that divisor which, applied to every State, gives to them such numbers as, added together, come nearest to 120. This nearest com- mon ratio will be found to be 28,858, and will distribute 119 of the 120 members, leaving only a single residuary one. It will be found, too, to place 96,648 fractional numbers in the eight northernmost States, and 105,582 in the southernmost. The following table shows it : — Ratio of 28,868. Fkaotioks. " Vermont . . . 85,532 2 27,186 New Hampshire . . 141,823 4 26,391 Massachusetts . 475,327 16 13,599 Ehode Island . . 68,444 2 10,728 Connecticut . . . 235,941 8 5,077 New York . . . . 352,915 12 6,619 New Jersey . • . 179,556 6 6,408 Pennsylvania . . 432,880 15 10 96 618 Delaware . • • . 55,538 1 26,680 Maryland . . . 278,513 9 18,791 Virginia . . ■ . 630,558 21 24,540 Kentucky . . ■ . 68,705 2 10,989 North Carolina . 353,521 12 7,225 South Carolina . 206,236 7 4,230 Georgia . . . ■ . 70,843 2 13,127 105,582 3,636,312 119 202,230 202,230 ' ' Whatever may have been the intention, the effect of rejecting the nearest divisor (which leaves but one residuary member) , and adopting a distant one (which leaves eight) , is merely to take a member from New York and Pennsylvania each, and give them to Vermont and New Hampshire. But it wiU be said ' This is giving more than one for 428 JEPFEKSON ON APPORTIONMENT. [CHAP. Vni. 30,000.' True ; but has it not been just said, that the one for 30,000 is prescribed only to fix the aggregate number, and that we are not to mind it when we come to apportion them among the States ; that for this we must recur to the former rule, which distributes them according to the numbers in each State? Besides, does not the bill itself appor- tion among seven of the States by the ratio of 27,770, which is much more than one for 30,000? " Where a phrase is susceptible of two meanings, we ought certainly to adopt that which will bring upon us the fewest inconveniences. Let us weigh those resulting from both constructions. " From that giving to each State a member for every 30,000 in that State, results the single inconvenience, that there may be large fractions unrepresented. But it being a mere hazard on which States this will fall, hazard will equalize it in the long run. ' ' From the other results exactly the same inconvenience. A thousand cases may be imagined to prove it. Take one : suppose eight of the States had 45,000 inhabitants each, and the other seven 44,999 each, that is to say, each one less than each of the others, the aggregate would be 674,993, and the number of representatives, at one for 30,000 of the aggregate, would be 22. Then, after giving one member to each State, distribute the seven residuary members among the seven highest fractions ; and though the difference of population be only an unit, the representation would be the double. Here a single inhabitant the more would count as 30,000. Nor is this case imaginable only; it will re- semble the real one, whenever the fractions happen to be pretty equal through the whole States. The numbers of our census happen, by acci- dent, to give the fractions all very small or very great, so as to produce the strongest case of inequality that could possibly have occurred, and which may never occur again. The probability is, that the fractions will generally descend gradually from 39,999 to 1. The inconvenience then, of large unrepresented fractions attends both constructions ; and, while the most obvious construction is liable to no other, that of the bill incurs many and grievous ones. FKAOTIONS. 1st 45,000 2 15,000 2d 45,000 2 15,000 3d . . 45,000 2 15,000 4th 45,000 2 15,000 6th 45,000 2 15,000 6th 45,000 2 15,000 7th 45,000 2 15,000 8th 45,000 2 15,000 9th 44,999 1 14,999 10th 44,999 1 14,999 APPENDIX.] JEPFEESON ON APPORTIONMENT. 429 nth 44,999 1 14,999 12th 44,999 1 14,999 13th 44,999 1 14,999 14th 44,999 1 14,999 15th 44,999 1 14,999 674,993 " 1 . If j'ou permit the large fraction in one State to choose a repre- sentative for one of the small fractions in another State, you take from the latter its election, which constitutes real representation, and substi- tute a virtual representation of the disfranchised fractions ; and the tendency of the doctrine of virtual representation has been too well discussed and appreciated by reasoning and resistance, on a former great occasion, to need development now. "2. The bill does not say that it has given the residuary representa- tives to the greatest fractions ; though, in fact, it has done so. It seems to have avoided establishing that into a rule, lest it might not suit on another occasion. Perhaps it may be found the next time more con- venient to distribute them among the smaller States ; at another time among the larger States ; at other times according to any other crotchet which ingenuity may invent, and the combination of the day give strength to carry ; or they may do it arbitrarily, by open bargain and cabal. In short, this construction introduces into Congress a scramble or a vendue for the surplus members. It generates waste of time, hot blood, and may at some time, when the passions are high, extend a dis- agreement between the two houses, to the perpetual loss of the thing, as happens now in Pennsylvania assembly ; whereas the other con- struction reduces the apportionment always to an arithmetical opera- tion, about which no two men can possibly differ. "3. It leaves in fuU force the violation of the precept which declares that representatives shall be apportioned among the States according to their numbers, that is, by some common ratio. ' ' Viewing this bill either as a violation of the Constitution or as giv- ing an inconvenient exposition to its words, is it a case wherein the Pres- ident ought to interpose his negative? I think it is. "1. The non-user of his negative begins already to excite a belief that no President wiU ever venture to use it ; and, consequently, has begotten a desire to raise up barriers in the State legislatures against Congress throwing off the control of the Constitution. "2. It can never be used more pleasingly to the public than in the protection of the Constitution. "3. No invasions of the Constitution are so fundamentally danger- 430 WEBSTER'S REPORT ON APPORTIONMENT. [CHAP. Vni. ous as the tricks played on their own numbers, apportionment, and other circumstances respecting themselves, and aifecting their legal qualifications to legislate for the Union. "4. The majorities by which this bill has been carried (to wit, one in the Senate and two in the House of Kepresentatives) show how di- vided the opinions were there. " 5 . The whole of both houses admit the Constitution will bear the other exposition ; whereas the minorities in both deny it will bear that of the bill. " 6 . The application of any one ratio is intelligible to the people, and will, therefore, be approved ; whereas the complex operations of this bill wiU never be comprehended by them; and, though they may ac- quiesce, they cannot approve what they do not understand." ^ WEBSTER'S REPORT TO THE SENATE ON THE APPOR- TIONMENT OF 1832. " This bill, like all laws on the same subject, must be regarded as of an interesting and delicate nature. It respects the distribution of polit- ical power among the States of the Union. It is to determine the number of voices which, for ten years to come, each State is to possess in the popular branch of the legislature. In the opinion of the com- mittee, there can be few or no questions which it is more desirable should be settled on just, fair, and satisfactory principles than this ; and, availing themselves of the benefit of the discussion which the bill has already undergone in the Senate, they have given to it a renewed and anxious consideration. The result is, that, in their opinion, the bill ought to be amended. Seeing the difficulties which belong to the whole subject, they are fully convinced that the bill has been framed and passed in the other house, with the sincerest desire to overcome those difficulties, and to enact a law which should do as much justice as possible to all the States. But the committee are constrained to say that the object appears to them not to have been attained. The un- equal operation of the bill on some of the States, should it become a law, seems to the committee most manifest ; and they cannot but ex- press a doubt, whether its actual apportionment of the representative power among the several States can be considered as conformable to the spirit of the Constitution. The bill provides that, from and after the 3d of March, 1833, the House of Representatives shall be composed of members, elected agreeably to a ratio of one representative for every 1 Jefferson's Works, 1st ed., vol. vii, p. 594. APPENDIX.] Webster's eepoet on apportionment. 431 forty-seven thousand and seven hundred persons in each State, com- puted according to the rule prescribed by the Constitution. The addition of the seven hundred to the forty-seven thousand, in the composition of this ratio, produces no effect whatever in regard to the constitution of the House. It neither adds to, nor takes from, the number of mem- bers assigned to any State. Its only effect is a reduction of the appar- ent amouht of the fractions, as they are usually called, or residuary members, after the application of the ratio. For all other purposes, the result is precisely the same as if the ratio had been 47,000. "As it seems generally admitted that inequalities do exist in this bill, and that injurious consequences will arise from its operation which it would be desirable to avert, if any proper means of averting them without producing others equally injurious could be found, the commit- tee do not think it necessary to go into a full and particular statement of these consequences. They will content themselves with presenting a few examples only of these results, and such as they find it most difficult to reconcile with justice and the spirit of the Constitution. " In exhibiting these examples, the committee must necessarily speak of particular States ; but it is hardly necessary to say, that they speak of them as examples only, and with the most perfect respect, not only for the States themselves, but for all those who represent them here. " Although the bill does not commence by fixing the whole number of the proposed House of Representatives, yet the process adopted by it brings out the number of two hundred and forty members. Of these two hundred and forty members forty are assigned to the State of New York, that is to say, precisely one-sixth of the whole. This assignment would seem to require that New York should contain one-sixth part of the whole population of the United States, and would be bound to pay one-sixth part of all her direct taxes. Yet neither of these is the case. The whole representative population of the United States is 11,929,005, that of New York is 1,918,623, which is less than one-sixth of the whole by nearly 70,000. Of a direct tax of two hundred and forty thousand dollars, New York would pay only $38,590. But if, instead of com- paring the numbers assigned to New York with the whole numbers of the house, we compare her with other States, the inequality is still more evident and striking. " To the State of Vermont the bill assigns five members. It gives, therefore, eight times as many representatives to New York as to Ver- mont ; but the population of New York is not equal to eight times the population of Vermont by more than three hundred thousand. Vermont has five members only for 280,657 persons. If the same proportion 432 Webster's ebpoet on apportionment, [chap. vin. were to be applied to New York, it would reduce the number of her members from forty to thirty-four, making a diffeience more than equal to the whole representation of Vermont, and more than sufficient to overcome her whole power in the House of Eepresentatives. "A disproportion almost equally striking is manifested, if we com- pare New York with Alabama. The population of Alabama is 262,208 ; for this, she is allowed five members. The rule of proportion which gives to her but five members for her number would give to New York but thirty-six for her number. Yet New York receives forty. As compared with Alabama, then, New York has an excess of representa- tion equal to four-fifths of the whole representation of Alabama ; and this excess itself will give her, of course, as much weight in the House as the whole delegation of Alabama, within a single vote. Can it be said, then, that representatives are apportioned to these States accord- ing to their respective numbers ? "The ratio assumed by the bill, it will be perceived, leaves large fractions, so called, or residuary numbers, in several of the small States, to the manifest loss of a part of their just proportion of representative power. Such is the operation of the ratio in this respect, that New York, with a popiilation less than that of New England by thirty or thirty-five thousand, has yet two more members than all the New Eng- land States ; and there are seven States in the Union whose members amount to the number of 123, being a clear majority of the whole House, whose aggregate fractions altogether amount only to fifty-three thou- sand; while Vermont and New Jersey, having together but eleven members, have a joint fraction of seventy-five thousand. " Pennsylvania by the bill will have, as it happens, just as many members as Vermont, New Hampshire, Massachusetts and New Jersey ; but her population is not equal to theirs by a hundred and thirty thou- sand ; and the reason of this advantage, derived to her from the pro- visions of the bill, is, that her fraction, or residuum, is twelve thousand only, while theirs is one hundred and forty-four. ' ' But the subject is capable of being presented in a more exact and mathematical form. The House is to consist of two hundred and forty members. Now, the precise proportion of power, out of the whole mass represented by the numbers two hundred and forty, which New York would be entitled to according to her population, is 38.69 ; that is to say, she would be entitled to thirty-eight members, and would have a residuum, or fraction ; and, even if a member were given her for that fraction, she would still have but thirty-nine; but the bill gives her forty. APPENDIX.] Webster's report on apportionment. 433 ' ' These are a part, and but a part, of those results produced by the bill in its present form, which the committee cannot bring themselves to approve. "While it is not to be denied that, under any rule of appor- tionment, some degree of relative inequality must always exist, the committee cannot believe that the Senate will sanction inequality and injustice to the extent in which they exist in this bill, if they can be avoided. But recollecting the opinions which had been expressed in the discussions of the Senate, the committee have diligently sought to learn whether there was not some other number which might be taken for a ratio, the application of which would work out more justice and equality. In this pursuit the committee have not been successful. There are, it is true, other numbers, the adoption of which would relieve many of the States which suffer under the present ; but this relief would be obtained only by shifting the pressure on to the other States, thus creating new grounds of complaint in other quarters. The number forty-four thousand has been generally spoken of as the most acceptable substitute for forty-seven thousand seven hundred ; but, should this be adopted, great relative inequality would fall on several States, and, among them, on some of the new and growing States, whose relative disproportion, thus already great, would be constantly increasing. The committee, therefore, are of opinion that the bill should be altered in the mode of apportionment. They think that the process which be- gins by assuming a ratio should be abandoned, and that the bill ought to be framed on the principle of the amendment, which has been the main subject of discussion before the Senate. The fairness of the principle of this amendment, and the general equity of its results, com- pared with those which flow from the other process, seem plain and un- deniable. The main question has been, whether the principle itself be constitutional ; and this question the committee proceeded to examine, respectfully asking of those who have doubted its constitutional pro- priety, to deem the question of so much importance as to justify a second reflection. ' ' The words of the Constitution are, ' representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians, 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 434 websteb's bepoet on appobtionment. [chap. vin. exceed one for every thirty thousand, but each State shall have at least one representative.' ' ' There would seem to be little difficulty in understanding these pro- visions. The terms used are designed, doubtless, to be received in no peculiar or technical sense, but according to their common and popular acceptation. To apportion is to distribute by right measure, to set off in just parts, to assign in due and proper proportion. These clauses of the Constitution respect not only the portions of power, but the portions of the public burden, also, which should fall to the several States ; and the same language is applied to both. Representatives are to be ap- portioned among the States according to their respective numbers ; and direct taxes are to be apportioned by the same rule. The end aimed at is, that representation and taxation should go hand in hand ; that each State should be represented in the same extent to which it is made sub- ject to the public charges by direct taxation. But between the appor- tionment of representatives and the apportionment of taxes there neces- sarily exists one essential difference. Representation, founded on numbers, must have some limit ; and, being from its nature a thing not capable of indefinite subdivision, it cannot be made precisely equal. A tax, indeed, cannot always or often be apportioned with perfect exact- ness ; as, in other matters of account, there will be fractional parts of the smallest coins and the smallest denomination of money of account, yet, by the usual subdivisions of the coin and of the denomination of money, the apportionment of taxes is capable of being made so exact that the inequality becomes minute and invisible. But representation cannot be thus divided. Of representation, there can be nothing less than one representative ; nor, by our Constitution, more representatives than one for every thirty thousand. It is quite obvious, therefore, that the apportionment of representative power can never be precise and perfect. There must always exist some degree of inequality. Those who framed and those who adopted the Constitution were, of course, fully acquainted with this necessary operation of the provision. In the Senate, the States are entitled to a fixed number of senators ; and, therefore, in regard to their representation in that body there is no con- sequential or incidental inequality arising. But, being represented in the House of Representatives according to their respective numbers of people, it is unavoidable that, in assigning to each State its number of members, the exact proportion of each, out of a given number, cannot always or often be expressed in whole numbers ; that is to say, it will not often be found that there belongs to a State exactly one-tenth or one-twentieth or one-thirtieth of the whole House ; and, therefore, no APPENDIX.] WEBSTER'S REPORT ON APPORTIONMENT. 435 number of representatives will exactly correspond with the right of such State, or the precise share of representation which belongs to it, ac- cording to its population. " The Constitution, therefore, must be understood, not as enjoining an absolute relative equality, — because that would be demanding an impossibility, — but as requiring of Congress to make the apportionment of representatives among the several States according to their respective numbers, as near as may be. That which cannot be done perfectly must be done in a manner as near perfection as can be. If exactness cannot, from the nature of things, be attained, then the greatest prac- ticable approach to exactness ought to be made. "Congress is not absolved from all rule, merely because the rule of perfect justice cannot be applied. In such a case, approximation be- comes a rule; it takes the place of that other rule, which would be preferable, but which is found inapplicable, and becomes, itself, an obligation of binding force. The nearest approximation to exact truth or exact right, when that exact truth or that exact right cannot itself be reached, prevails in other cases, not as a matter of discretion, but as an intelligible and definite rule, dictated by justice, and conforming to the common sense of mankind ; a rule of no less binding force in cases to which it is applicable, and no more to be departed from, than any other rule or obligation. " The committee understand the Constitution as they would have un- derstood it, if it had said, in so many words, that representatives should be apportioned among the States, according to their respective numbers, as near as may be. If this be not its true meaning, then it has either given, on this most delicate and important subject, a rule which is always impracticable, or else it has given no rule at all ; because, if the rule be that representatives shall be apportioned exactly according to numbers, it is impracticable in every case ; and if, for this reason, that cannot be the rule, then there is no rule whatever, unless the rule be that they shall be apportioned as near as may be. " This construction, indeed, which the cbmmittee adopt, has not, in their knowledge, been denied ; and they proceed in the discussion of the question before the Senate, taking for granted that such is the true and undeniable meaning of the Constitution. " The next thing to be observed is, that the Constitution prescribes no particular process by which this apportionment is to be wrought out. It has plainly described the end to be accomplished, namely, the nearest approach to relative equality of representation among the States ; and whatever accomplishes this end, and nothing else, is the true process. 436 WEBSTER'S EEPOET ON APPOKTIONMENT. [CHAP. Vm. In truth, if without any process whatever, whether elaborate or easy, Congress could perceive the exact proportion of representative power rightfully belonging to each State, it would perfectly fulfil its duty by conferring that portion on each, without reference to any process what- ever. It would be enough, that the proper end had been attained. And it is to be remarked further, that, whether this end be attained best by one process or by another, becomes, when each process has been carried through, not matter of opinion, but matter of mathematical certainty. If the whole population of the United States, the population of each State, and the proposed number of the House of Eepresentatives be all given, then, between two bills apportioning the members among the several States, it can be told, with absolute certainty, which bUl as- signs to any and every State the number nearest to the exact proportion of that State ; in other words, which of the two bills, if either, appor- tions the representatives according to the numbers in the States, respec- tively, as near as may be. If, therefore, a particular process of appor- tionment be adopted, and objection be made to the injustice or inequality of its result, it is, surely, no answer to such objection to say that the in- equality necessarily results from the nature of the process. Before such answer could avail, it would be necessary to show, either that the Con- stitution prescribes such process, and makes it necessary, or that there is no other mode of proceeding which would produce less inequality and less injustice. If inequality which might have otherwise been avoided be produced by a given process, then that process is a wrong one. It is not suited to the case, and should be rejected. ' ' Nor do the committee perceive how it can be matter of constitu- tional propriety or validity, or in any way a constitutional question, whether the process which may be applied to the case be simple or compound, one process or many processes ; since, in the end, it may always be seen whether the result be that which has been aimed at, namely, the nearest practicable approach to precise justice and relative equality. The committee, indeed, are of opinion, in this case, that the simplest and most obvious way of proceeding is also the true and con- stitutional way. To them, it appears, that, in carrying into effect this part of the Constitution, the first thing naturally to be done is, to decide on the whole number of which the House is to be composed ; as when, under the same clause of the Constitution, a tax is to be apportioned among the States, the amount of the whole tax is, in the first place, to be settled. "When the whole number of the proposed House is thus ascertained and fixed, it becomes the entire representative power of all the people APPENDIX.] WEBSTEK'S KEPORT ON APPOBTIONMENT. 437 in the Union. It is then a very simple matter to ascertain how much of this representative power each State is entitled to by its numbers. If, for example, the House is to contain two hundred and forty mem- bers, then the number two hundred and forty expresses the representa- tive power of all the States ; and a plain calculation readily shows how much of this power belongs to each State. This portion, it is true, will not always, or often, be expressed in whole numbers, but it may always be precisely exhibited by a decimal form of expression. If the portion of any State be seldom, or never, one exact tenth, one exact fifteenth, or one exact twentieth, it will stUl always be capable of precise decimal expression, as one-tenth and two-hundredths, one-twelfth and four-hun- dredths, one fifteenth and six-hundredths , and so on; and the exact portion of the State, being thus decimally expressed, will always show, to mathematical certainty, what integral number comes nearest to such exact portion. For example, in a House consisting of two hundred and forty members, the exact mathematical proportion to which her numbers entitle the State of New York is 38.59 ; it is certain, therefore, that thirty-nine is the integral or whole number nearest to her exact propor- tion of the representative power of the Union. Why, then, should she not have thirty-nine ? and why should she have forty ? She is not quite entitled to thirty-nine ; that number is something more than her right. But allowing her thirty-nine, from the necessity of giving her whole num- bers, and because that is the nearest whole number, is not the Consti- tution fully obeyed, when she has received the thirty-ninth number? Is not her proper number of representatives then apportioned to her, as near as may be ? And is not the Constitution disregarded when the bill goes further? and gives her a fortieth member? For what is such a fortieth member given ? Not for her absolute numbers ; for her absolute numbers do not entitle her to thirty-nine. Not for the sake of appor- tioning her members to her numbers, as near as may be ; because thirty- nine is a nearer apportionment of members than forty. But it is given, say the advocates of the bill, because the process which has been adopted gives it. The answer is, no such process is enjoined by the Constitu- tion. "The case of New York maybe compared or contrasted with that of Missouri. The exact proportion of Missouri, in a general representa- tion of two hundred and forty, is two and six-tenths ; that is to say, it comes nearer to three members than to two, yet it is confined to two. But why is not Missouri entitled to that number of representatives which comes nearest to her exact proportion ? Is the Constitution fulfilled as to her, while that number is withheld, and while at the same time in 438 webstbk's eepoet on appoetionment. [chap. vin. another State, not only is that nearest number given, but an additional member given also ? Is it an answer with which the people of Missouri ought to be satisfied, when it is said that this obvious injustice is the necessary result of the process adopted by the bill ? May they not say with propriety that, since three is the nearest whole number to their exact right, to that number they are entitled, and the process which de- prives them of it must be a wrong process? A similar comparison might be made between New York and Vermont. The exact proportion to which Vermont is entitled, in a representation of two hundred and forty, is 5.646. Her nearest whole number, therefore, would be six. Now, two things are undeniably true : iirst that to take away the for- tieth member from New York would bring her representation nearer to her exact proportion than it stands by leaving her that fortieth member. Secondly, that giving the member thus taken from New York to Ver- mont would bring her representation nearer to her exact right than it is by the bill. And both these propositions are equally true of a transfer of the twenty-eighth member assigned by the bill to Pennsylvania, to Delaware, and of the thirteenth member assigned to Kentucky, to Mis- souri ; in other words, Vermont has, by her numbers, more right to six members than New York has to forty. Delaware, by her numbers, has more right to two members than Pennsylvania has to twenty-eight; and Missouri, by her numbers, has more right to three members than Kentucky has to thirteen. Without disturbing the proposed number of the House, the mere changing of these three members, from and to the six States respectively, would bring the representation of the whole six nearer to their due proportion according to their respective numbers than the bill, in its present form, makes it. In the face of this indis- putable truth, how can it be said that the bill apportions members of Congress among those States, according to their respective number, as near as may be ? " The principle on which the proposed amendment is founded is an effectual corrective for these and all other equally great inequalities. It may be applied at all times and in all cases, and its results will always be the nearest approach to perfect justice. It is equally simple and impartial. As a rule of apportionment, it is little other than a tran- script of the words of the Constitution, and its results are mathematically certain. The Constitution, as the committee understand it, says, rep- resentatives shall be apportioned among the States, according to their respective numbers of people, as near as may be. The rule adopted by the committee says, out of the whole number of the House, that num- ber shall be apportioned to each State which comes nearest to its exact right, according to its number of people. APPENDIX.] WEBSTEE'S EEPOET ON APPORTIONMENT. 439 "Where is the repugnancy between the Constitution and the rule? The arguments against the rule seem to assume that there is a necessity of instituting some process, adopting some number as the ratio, or as that number of people which each member shall be understood to repre- sent ; but the committee see no occasion for any other process whatever than simply the ascertainment of that quantum out of the whole mass of the representative power, which each State may claim. " But it is said, that although a State may receive a number of rep- resentatives which is something less than its exact proportion of repre- sentation, yet that it can in no case constitutionally receive more. How is this proposition proved ? How is it shown that the Constitution is less perfectly fulfilled by allowing a State a small excess than by sub- jecting her to a large deficiency? What the Constitution requires, is the nearest practicable approach to precise justice. The rule is approx- imation; and we ought to approach, therefore, on whichever side we can approach nearest. "But there is still a more conclusive answer to be given to this sug- gestion. The whole number of representatives of which the House is to be composed is, of necessity, limited. This number, whatever it is, is that which is to be apportioned, and nothing else can be apportioned. This is the whole sum to be distributed. If, therefore, in making the apportionment, some States receive less than their just share, it must necessarily follow that some other States have received more than their just share. If there be one State in the Union with less than its right, some other State has more than its right, so that the argument, what- ever be its force, applies to the bill in its present form as strongly as it can ever apply to any bill. " But the objection most usually urged against the principle of the proposed amendment is, that it provides for the representation of frac- tions. Let this objection be examined and considered. Let it be as- certained, in the first place, what these fractions, or fractional numbers, or residuary numbers really are, which, it is said, will be represented should the amendment prevail. "A fraction is the broken part of some integral number. It is, therefore, a relative or derivative idea. It implies the previous exis- tence of some fixed number of which it is but a part or remainder. If there be no necessity for fixing or establishing such previous number, then the fraction resulting from it is itself not matter of necessity but matter of choice or accident. Now, the argument which considers the plan proposed in the amendment as a representation of fractions, and therefore unconstitutional, assumes as its basis that, according to 440 Webster's eeport on apportionment [chap. vm. the Constitution, every member of the House of Representatives repre- sents, or ought to represent, the same, or nearly the same number of constituents; that this number is to be regarded as an integer; and anything else than this is, therefore, called a fraction or residuum, and cannot be entitled to a representative. But nothing of this is prescribed by the Constitution of the United States. That Constitution contem- plates no integer or any common number for the constituents of a mem- ber of the House of Representatives. It goes not at all into these subdivisions of the population of the State. It provides for the appor- tionment of representatives among the several States, according to their respective numbers, and stops there. It makes no provision for the representation of districts, of States, or for the representation of any portion of the people of a State, less than the whole. It says nothing of ratios or of constituent numbers. All these things it leaves to State legislation. The right which each State possesses to its own due por- tion of the representative power is a State right, strictly ; it belongs to the State, as a State, and it is to be used and exercised as the State may see fit, subject only to the constitutional qualifications of electors. In fact, the States do make, and always have made, different provisions for the exercise of this power. In some, a single member is chosen for a certain defined district, in others two or three members are chosen for the same district, and in some, again, as New Hampshire, Rhode Island, Connecticut, New Jersey, and Georgia, the entire representation of the State is a jpint, undivided representation. In these last mentioned States, every member of the House of Representatives has for his con- stituents all the people of the State ; and all the people of those States are consequently represented in that branch of Congress. If the bill before the Senate should pass into a law, in its present form, whatever injustice it might do to any of those States, it would not be correct to say of them, nevertheless, that any portion of their people was unrep- resented. The well founded objection would be, as to some of them at least, that they were not adequately, competently, fairly represented ; that they had not as many voices and as many votes in the House of Representatives as they were entitled to. This would be the objection. There would be no unrepresented fractions ; but the State, as a State, as a whole, would be deprived of some part of its just rights. " On the other hand, if the bill should pass, as it is now proposed to be amended, there would be no representation of fractions in any State ; for a fraction supposes a division and a remainder. All that could justly be said would be that some of these States, as States, possessed a portion of legislative power, a little larger than their exact right; as APPENDIX.] Webster's report on apportionment. 441 it must be admitted that, should the bill pass unamended, they would possess of that power much less than that exact right. The same re- marks are substantially true, if applied to those States which adopt the district system, as most of them do. In Missouri, for example, there will be no fraction unrepresented, should the bill become a law in its present form ; nor any member for a fraction, should the amendment prevail; because the mode of apportionment, which assigns to each State that number which is nearest to its exact right, applies no assumed ratios, makes no subdivisions, and, of course, produces no fractions. In the one case or in the other, the State, as a State, will have some- thing more or something less than its exact proportion of representative power ; but she will part out this power among her own people, in either case, in such mode as sh6 may choose, or exercise it altogether as an entire representation of the people of the State. "Whether the subdivision of the representative power within any State, if there be a subdivision, be equal or unequal, or fairly or unfairly made. Congress cannot know, and has no authority to inquire. It is enough that the State presents her own representation on the floor of Congress in the mode she chooses to present it. If a State were to give one portion of her territory a representative for every twenty-five thou- sand persons, and to the rest a representative only for every fifty thou- sand, it would be an act of unjust legislation, doubtless, but it would be wholly beyond redress by any power in Congress ; because the Con- stitution has left all this to the State itself. " These considerations, it is thought, may show that the Constitution has not, by any implication or necessary construction, enjoined that which it certainly has not ordained in terms, viz., that every member of the House shall be supposed to represent the same number of constitu- ents ; and therefore, that the assumption of a ratio, as representing the common number of constituents, is not called for by the Constitution. All that Congress is at liberty to do, as it would seem, is to divide the whole representative power of the Union into twenty-four parts, assign- ing one part to each State, as near as practicable according to its right, and leaving all subsequent arrangement and all subdivisions to the State itself. " If the view thus taken of the rights of the States and the duties of Congress be the correct view, then the plan proposed in the amendment is in no just sense a representation of fractions. But suppose it was otherwise ; suppose a direct division were made for allowing a repre- sentative to every State, in whose population, it being first divided by a common ratio, there should be found a fraction exceeding half the 442 wbbstee's ebpoet on apportiokment. [chap. vnr. amount of that ratio, what constitutional objection could be fairly urged against such a provision ? Let it be always remembered that the case here supposed provides only for a fraction exceeding the moiety of the ratio ; for the committee admit at once that the representation of frac- tions, less than a moiety, is unconstitutional ; because, should a mem- ber be allowed to a. State for such a fraction, it would be certain that her representation would not be so near her exact right as it was before. But the allowance of a member for a major fraction is a direct approx- imation towards justice and equality. There appears to the Commit- tee to be nothing, either in the letter oi' in the spirit of the Constitution, opposed to such a mode of Apportionment. On the contrary it seems entirely consistent with the very object which the Constitution contem- plated, and well calculated to accomplish it. The argument commonly urged against it is, that it is necessary to apply some one common di- visor, and to abide by its results. "If by this it be meant that there must be some common rule, or common measure, applicable, and applied impartially to all the States, it is quite true. But, if that which is intended be, that the popula- tion of each State must be divided by a fixed ratio, and all resulting fractions, great or small, disregarded, this is but to take for granted the very thing in controversy. The question is, whether it be uncon- stitutional to make approximation to equality by allowing representatives for major fractions. The affirmative of this question is indeed denied ; but it is not disproved by saying that we must abide by the operation of divisions, by an assumed ratio, and disregard fractions. The ques- tion still remains as it was before ; and it is still to be shown what there is in the Cohstitution which rejects approximation as the rule of appor- tionment. But suppose it be necessary to find a divisor, and to abide its results. What is a divisor? Not necessarily a simple number. It may be composed of a whole number and a fraction ; it may itself he the result of a previous process ; it may be anything, in short, which produces accurate and uniform division ; whatever does this is a com- mon rule, a common standard, or, if the word be important, a common divisor. The committee refer, on this part of the case, to some obser- vations by Professor Dean, with a table, both of which accompany this report. "As it is not improbable that opinion has been a good deal influenced on this subject by what took place on the passing of the first act making an apportionment of representatives among the States, the committee have examined and considered that precedent. If it be in point to the present case, it is certainly entitled to very great weight ; but if it be APPENDIX.] Webster's report on apportionment. 443 of questionable application, the test of the Constitution, even if it were doubtful, could not be explained by a do^btful commentary. In the opinion of the committee, it is only necessary that what was said on that occasion should be understood in connection with the subject-mat- ter then under consideration ; and in order to see what that subject- matter really was, the committee think it necessary to state, shortly, the case. " The two Houses of Congress passed a bill, after the first enumera- tion of the people, providing for a House of Representatives which should consist of one hundred and twenty members. The bill expressed no rule or principle by which these members were assigned to the sev- eral States. It merely said, that New Hampshire should have five members, Massachusetts ten, and so on; going through all the States, and assigning the whole number of one hundred and twenty. Now, by the census, then recently taken, it appears that the whole representative population of the United States was 3,615,920; and it was evidently the wish of Congress to make the House as numerous as the Constitu- tion would allow. But the Constitution has said that there should not be more than one member for every thirty thousand persons. This prohibition was, of course, to be obeyed ; but did the Constitution mean that no States should have more than one member for every thirty thous- and persons ? or did it only mean that the whole House, as compared with the whole population of the United States, should not contain more than one member for every thirty thousand persons ? If this last were the true construction then it was. wrong; because so many members could not be assigned to the States without giving to sooie of them more members than one for every thirty thousand. In fact, the bill did pro- pose to do this in regard to several States. " President Washington adopted that construction of the Constitution which applied its prohibition to each State individually. He thought that no State could, constitutionally, receive more than one member for every thirty thousand of her own population. On this, therefore, his main objection to the bill was founded. That objection he states in these words : — ' ' ' The Constitution has also provided that the number of represen- tatives shall not exceed one for every thirty thousand ; which restriction is, by the context, and by fair and obvious construction, to be applied to the separate and respective numbers of the States ; and the bill has aUoted to eight of the States more than one for every thirty thousand.' " It is now necessary to see what there was further objectionable in this bill. The number of one hundred and twelve members was all that 444 Webster's ebpoet on apportionment, [chap. viii. could be divided among the States without giving to some of them more than one member for thirty thousand inhabitants. Therefore, having allotted those one hundred and twelve, there still remained eight of the one hundred and twenty to be assigned ; and these eight the bill assigned to the States having the largest fractions. Some of these fractions were large, and some were small. No regard was paid to fractions over a moiety of the ratio, any more than to fractions under it. There was no rule laid down, stating what fractions should entitle the States, to whom they might happen to fall, or in whose population they might happen to fall, or in whose population they might happen to be found, to a repre- sentative therefor. The assignment was not made on the principle that each State should have a member for a fraction greater than half the ratio ; or that all the States should have a member for a fraction, in all cases where the allowance of such member would bring her representa- tion nearer to its exact proportion than its disallowance. There was no common measure or common rule adopted, but the assignment was matter of arbitrary discretion. A member was allowed to New Hamp- shire for example, for a fraction of less than one half the ratio, thus placing her representation further from her exact proportion than it was without such additional member ; while a member was refused to Geor- gia whose case closely resembled that of New Hampshire, both having what were thought large fractions, but both still under a moiety of the ratio, and distinguished from each other only by a very slight difference of absolute numbers. The committee have already fully expressed their opinion on such a mode of apportionment. " In regard to this character of the bill. President Washington said : ' The Constitution has prescribed that representatives shall be appor- tioned among the several States according to their respective numbers ; and there is no one proportion, or divisor, which, applied to the respec- tive nuinbers of the States, will yield the number and allotment of representatives proposed by the bill.' "This was all undoubtedly true, and was, in the judgment of the committee, a decisive objection against the bill. It is nevertheless to be observed, that the other objection completely covered the whole ground. There could, in that bill, be no allowance for a fraction, great or small ; because Congress had taken for the ratio the lowest number allowed by the Constitution, viz., thirty thousand. Whatever fraction a State might have less than that ratio, no member could be allowed for it. It is scarcely necessary to observe that no such objection applies to the amendment now proposed. No State, should the amendment prevail, will have a greater number of members than one for every thirty APPENDIX.] Webster's kepoet on apportionment. 445 thousand ; nor is it likely that the objection will ever again occur. The whole force of the precedent, whatever it be, in its application to the present case, is drawn from the other objection. And what is the true import of that objection? Does it mean anything more than that the apportionment was not made on a common rule or principle, applicable and applied alike to all the States ? " President Washington's words are, ' There is no one proportion or divisor, which, applied to the respective numbers of the States, will yield the number and allotment of representatives proposed by the bill.' "If, then, he could have found a common proportion, it would have removed this objection. He required a proportion, or divisor. These words he evidently uses as explanatory of each other. He meant by divisor, therefore, no more than hy proportion. "What he sought was, some common and equal rule by which the allottment had been made among the several States ; he did not find such common rule ; and on that ground he thought the bill objectionable. " In the opinion of the committee, no such objection applies to the amendment recommended by them. That amendment gives a rule, plain, simple, just, uniform, aud of universal application. The rule has been frequently stated. It may be clearly expressed in either of two ways. Let the rule be, that the whole number of the proposed House shall be apportioned among the several States according to their respective numbers, giving to each State that number of members which comes nearest to her exact mathematical part, or proportion ; or, let the rule be, that the population of each State shall be divided by a common divisor, and that, in addition to the number of members re- sulting from such division, a member shall be allowed to each State whose fraction exceeds a moiety of the divisor. " Either of these is, it seems to the committee, a fair aud just rule, capable of uniform application, and operating with entire impartiality. There is no want of a common proportion or a common divisor ; there is nothing left to arbitrary discretion. If the rule, in either of these forms, be adopted, it can never be doubtful how every member of any proposed number for a House of Representatives ought to be assigned. Nothing will be left in the discretion of Congress ; the right of each State will be a mathematical right, easily ascertained, about which there can be neither doubt nor diflSculty ; and, in the application of the rule, there will be no room for preference, partiality, or injustice. In any case, in all time to come it will do all that human means can do, to allot to every State in the Union its proper and just proportion of rep- 446 webstee's report on apportionment, [chap. vm. resentative power. And it is because of this, its capability of constant application, as well as because of its impartiality and justice, that the committee are earnest in recommending its adoption to Congress. If it shall be adopted, they believe it will remove a cause of uneasiness and dissatisfaction recurring, or liable to recur, with every new census, and place the rights of the States, in this respect, on a fixed basis, of which none can with reason complain. It is true, that there may be some numbers assumed for the composition of the House of Representatives, to which, if the rule were applied, the result might give a member to the House more than was proposed. But it will be always easy to correct this, by altering the proposed number by adding one to it or taking one from it ; so that this can be considered no objection to the rule. "The committee, in conclusion, cannot admit that it is suflBcient reason for rejecting this mode of apportionment, that a different process has heretofore prevailed. The truth is, the errors and inequalities of that process were at first not obvious and startling. But they have gone on increasing ; they are greatly augmented and accumulated every new census ; and it is of the very nature of the process itself that its unjust results must grow greater and greater in proportion as the pop- ulation of the country enlarges. What was objectionable, though tolerable yesterday, becomes intolerable to-morrow. A change, the committee are persuaded, must come, or the whole just balance and proportion of representative power among the States will be disturbed and broken up." ^ 2 Story on the Constitution, 5th ed., No. 93; ibid., No. 94; ibid., vol. iii, vol. 1, pp. 495, 512. See Senate Docu- No. 126 ; ibid., vol. iv, No. 463. ments, 22d Cong., 1st Session, vol. ii, CHAPTER IX. VACAJSrCIES IN THE HOUSE OF REPRESENTATIVES AND RESIGNATIONS FROM CONGRESS. § 70. Vacancies in the House of Kepresentatives. The next clause is : — " "When Vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." ^ This was inserted by the committee of detail and adopted unani- mously upon the consideration of their report.^ " The propriety of adopting this clause does not seem to have furnished any matter of discussion, either in or out of the convention. It was obvious that the power ought to rest somewhere ; and must be exercised either by the State or national government, or by some department thereof. The friends of State powers would naturally rest satis- fied with leaving it with the State executive ; and the friends of the national government would acquiesce in that arrangement, if other constitutional provisions existed sufficient to preserve its due execution. The provision, as it stands, has the strong rec- ommendation of public convenience, and facile adaptation to the particular local circumstances of each State. Any general regu- lation would have worked with some inequality." ^ An interesting question arose in 1837. The law of Mississippi fixed the time for the election of representatives in November. The President having called a special session of Congress to meet in September, the governor of Mississippi, on the 13th of June, issued writs for an election in July for two representatives to Congress to fill the vacancies caused by the expiration of the terms § 70. 1 Article I, Section 2. ^ gtory on the Constitution, 5th 2 Madison Papers, Elliot's Debates, ed., § 685, pp. 495-499. 2d. ed., vol. v, pp. 377, 395. 447 448 VACAIJCIBS AND EESIGNATIONS. [CHAP. IX. of the members of the preceding House until superseded by those to be elected at the next regular election in November. At this July election, Gohlson and Claiborne were elected and claimed the seats. Their claim was referred to a committee, of which Andrew Buchanan was chairman, who reported in favor of their right to seats for the full term. The report said : " The Consti- tution authorizes the executive power of the States respectively to order the filling of all vacancies which have actually happened, in the mode therein pointed out, no matter how the vacancy may have happened, whether by death, resignation, or expiration of the term of members previous to the election of their successors." In the debate, John Quincy Adams said he believed, in relation to offices, that every one happens to be vacant which is not full ; and that, he believed, was the meaning and sense of the Consti- tution, whether the vacancy occurred from casualty, the regular course of events, expiration of term, or other cause. The claim- ants were admitted to their seats. In November following, Pren- tiss and "Wood were elected for the same term. At the December session, the resolution declaring Gholson and Claiborne elected was rescinded, but a resolution was also adopted, by the casting vote of Speaker James K. Polk, that Prentiss and Wood were not members.* When Congress sets aside an election without seat- ing the contestant, a vacancy happens within the meaning of the Constitution.^ Vacancies may also happen by death, expulsion, or resignation. The proceedings upon vacancies by death need no explanation beyond the language of the Constitution. Expulsions will be sub- sequently considered. Vacancies by resignation come next in order. § 71. Kesignatlons from Congress. A member of neither house of Parliament can resign his seat. Death, an act of Parliament, and a conviction of an offense which * Minority report in Bell's case, 33. See also 1 Bart., p. 9, and infra, presented by Senator George F. Hoar § 77. of Massachusetts and adopted by = J« re The Representative Vacancy, the Senate; Taft's Senate Election 15 K. I., 621 ; cf. ijt re The Oongres- Cases, continued by Furber, pp. 32- sional Election, 15 K. I., 624. § 71.J RESIGNATIONS FBOM COKGEESS. 449 operates as a corruption of tlie blood are the only means by which the seat of a member of the House of Lords can be vacated. A member of the House of Commons has no power to resign. By statute, however, a seat is vacated by the acceptance of civil office.^ It is the custom, consequently, for a member of either party who wishes to retire to apply to the ministry for the ap- pointment to an office with nominal emoluments, the steward- ship of the Chiltern Hundreds, whose duty formerly was to re- strain the robbers in the beech-woods on the Chiltern Hills in Buckinghamshire. On his receipt of this, his seat is vacated by operation of law. The appointment is not, however, a matter of course, but lies in the discretion of the ministry ; and the applica- tion is refused whenever it is considered proper to punish a mem- ber by expulsion.^ A different rule prevails in the parliamentary law of the United States. A member of either house of Congress may resign his seat at any time by a letter addressed to the governor of the State which he represents.^ Neither the State executive * nor the house ^ from which he retires has the right to refuse to accept his resig- nation even though proceedings for his expulsion are pending.^ The resignation should be addressed to the State executive.'' It § 71. 1 4 Anne, c. 8 ; 6 Anne, c. 7. « Mercer's Case, CI. & Hall, p.44 ; Ed- 2 The refusal in 1842 to a member, wards' Case, ibid., p. 66 ; Congressional against whom charges of corrupt con- Globe, 2d Session, 41st Congress, p. duct in an election were pending, was 1547. said to be unprecedented. (Cooley's ^ See Matteson's Case in the Thirty- note to Blackstone, vol. i, p. 176.) fifth Congress, 1st Session, House Ee- ^ The right of a senator to resign is ports, No. 179; MoCrary on Elections, recognized in the Constitution, Article 3d ed., § 600 ; and authorities cited I, Section 3. The right of a represen- supra. July 21, 1866, notwithstanding tative to resign was settled in William his letter of resignation addressed to Pinckney's Case in 1791. Benton's the governor of his State, of which he Abridgment, vol. i, pp. 328-330. See had notified the House, Lovell H. also McCrary on Elections, 2d ed., Eousseau of Kentucky was repri- §600; Bledsoe's Case, Taft's Senate manded by the Speaker for his resig- Election Cases, continued by Furber, nation, in pursuance of a resolution p. 79; s. c. CI. & Hall, 869; Mercer's passed before, on account of an as- Case, CI. & Hall, p. 44 ; Edwards' Case, sault made by him upon a fellow ibid., p. 46. member, Josiah B. Grinnell of Iowa. * Bledsoe's Case, Taft's Senate Elec- (Congressional Globe, 1st Session, tion Cases, continued by Furber, p. 37th Cong., Part V, pp. 4009-4017.) 79; Dixon's Case, ibid., p. 13. ' McCraryon Elections, 3d ed.,§ 600. 450 RESIGNATIONS PEOM CONGKBSS. [CHAP. IX. is neither necessary nor proper to address it to the House or Sen- ate.^ It is customary for a senator or representative to address his resignation to his governor, and also to address a letter to the presiding officer of the house from which he resigns, notifying him and the house of the fact of the resignation.^ Such a com- munication is considered by the house as sufficient evidence of the resignation ^° ; and until vrritten notice is received from either the member or the governor, the member's name remains upon the roU.i^ It has been said that a resignation cannot be with- drawn.^ The resignation of a member of either house may be prospective, and take effect upon a future day, when, if the State law permits, the vacancy may be filled by election during the meantime.^^ "Whether a senator can resign his seat before the commencement of the term for which he was elected has been considered doubt- ful. 8 McCraryoiiEleetions,3ded.,§600. 12 Opinions of Justices, 70 Maine, " Ibid., § 327. 588, 597. 1" Journal, 2d Session, 41st Con- is Archibald Dixon's Case, Taft's gress, p. 373. Senate Election Cases, continued by " Report No. 2679, House Judiciary Purber, p. 13. Committee, 2d Session,48th Congress. CHAPTER X. SPEAKER AND OTHER OFFICEES OF THE HOUSE OF REPRESENTATIVES. § 72. The Speaker of the House. The power to choose its presiding and other officers has been considered an attribute essential to the independence of every popular assembly. The former, by his power to preserve order, to put the question, and in England and the United States to deter- mine who shall speak, can control the proceedings ; while without the control of the latter the house is unable to see that its pro- ceedings are correctly recorded or to protect itself from those as- saults from without which have frequently intimidated and more than once dissolved representative bodies. For this reason the Constitution next provides, " The House of Representatives shall chuse their Speaker and other Officers, and shall have the sole Power of Impeachment." ^ This clause, which was contained in most of the State constitutions, first appeared in the report of the committee of detail to the convention, and was adopted without discussion or dissent.^ The subject of im- peachments will be examined in a subsequent chapter, in connec- tion with that part of the Constitution which provides for their mode of trial.^ The speaker, as his name denotes, is the spokesman of the House, and represents it in its transactions with the Senate and the Executive. His name and duties are taken from those of the speaker of the House of Commons, who is elected by his fellow- members, subject to the approval of the Crown. Although this approval is now a matter of course, as late as the reigns of the early § 72. 1 Constitution, Article I, Sec- ^ Madison Papers, Elliot's Debates, tion 2. 2d ed., vol. v, pp. 377, 395. s Infra, Chapter XIII. 451 452 opncBKS of house of eepeesentatives. [chap. X. Stuarts, the Crown's part in the selection was controlling, and it was the custom of the king to signify in advance the person whom he wished to have elected. As the strength of the Commons grew, they gradually insisted upon the free choice of their speaker, which has been conceded to them since the reign of Charles II.* A similar power of approval was claimed by the colonial governors appointed by the Crown. It was disputed by the colo- nial assemblies, but their power to withhold appropriations usually made them successful in any contest upon the subject which arose.* In the sham representative institutions set up by Napoleon I and III, the executive had the right to name the president of the lower legislative house.^ In the absence of a rule upon the subject, the speaker must be elected by a majority vote. In two cases, however, speakers have been elected by a plurality, after the adoption by a majority of a rule providing that a plurality might elect.'^ The speaker cannot be impeached ; * but he may be removed and another chosen in his place at the will of the majority of a quorum at any time.^ He has " the right to name any member to perform the duties of the chair, but such substitution must not extend beyond an adjourn- ment ; provided, however, that in case of his illness he may make such appointment for a period not exceeding ten days with the approval of the House at the time the same is made ; and in his absence and omission to make such appointment, the House shall proceed to elect a speaker to act in his absence." ■"' * The only case of the election of a of the Kevolt of the American Colo- speaker whom the Crown refused to nies, Book VIII, ch. ii.) approve was that of Sir Edward Sey- * Hfelie, Les Constitutions de la mour, in 1678, unless that of Sir John France, pp. 708, 868, 1170. Popham, in 1450, was such a one. ' Journal, 1st Sess. 31st Congress, Hatsell's Precedents, 3d ed., vol. ii, pp. 156, 163 ; Journal, 1st Sess. 3ith pp. 202, 204, 211 ; Burnet, History of Congress, pp. 429, 430, 444. My Own Time, vol. i, p. 53 ; Black- s /„ ^g Speakership of House of Be- stone's Commentaries, vol. i, p. 181. presentatives, 15 Colorado, 520 ; s. c. 5 In 1720 the Massachusetts As- 25 Pac. Kep., 707 ; Blount's Impeach- semhly was dissolved because they ment Trial, Wharton's State Trials, p. claimed the right to choose their 200 ; infra, § 91. speaker without the governer's ap- ^ 2 Grey, 186 ; 5 Grey, 134, Jeffer- proval. (Palfrey, History o£ New Eng- son's Manual, Sec. IX; Jn re Speaker- land, 1689-1727, pp. 273-274, 377-379 ; ship of House of Kepresentatives, 15 Chalmers, Introduction to the History Colorado, 520 ; s. c. 25 Pac. Eep., 707. 10 Kule I. § 72.] THE SPEAKER OP THE HOUSE. 453 It is a part of the speaker's functions to authenticate by his signature all bills and resolutions passed by the House and all communications made by it to other branches of the government.^i His more important duties are, however, to preside and preserve order during the proceedings. " It is the duty of the presiding officer : To call the assembly to order at the time appointed for the meeting. To ascertain the presence of a quorum. To cause the journal or minutes of the preceding meeting to be read and passed upon by the assembly. To lay before the assembly its business in the order indicated by the rules. To receive any propositions made by the members and put them to the assembly. To divide the assembly on questions submitted by him and to announce the result. To decide all questions of order, subject to an appeal to the assembly.^ To preserve order and decorum in debate and at all other times. To enforce such of the rules of the assembly as are not placed in charge of other officers, or of which the enforce- ment is not reserved by the assembly. To answer all parliamen- tary inquiries and give information as to the parliamentary effect of proposed acts of the assembly. To present to the assembly all messages from co-ordinate branches, and all proper communica- tions. To sign and authenticate all the acts of the assembly, all its resolves and votes. To name a member to take his place until adjournment of the meeting. And in general : To act as the or- gan of the assembly, and as its representative, subject always to its will." ^^ In the House of Representatives, the speaker has the further power to appoint all standing committees, unless other- wise specially ordered by the House.^* The powers of recognition and of the appointment of committees which are vested in the speaker give him almost absolute control of the business trans- acted; and it is the custom in the House of Representatives of the United States, and also in the lower houses of the State legislatures, for him to exercise these for partisan purposes, and " Field V. Clark, 143 IT. S., 649, 671 ; decision by the speaker of the House Carr B. Coke (S.C.), 22 S. E. Eep., 16; of Commons (Beed's Parliamentary Wyatt V. Wheeler (S.C), 22 S. E. Eep., Rules, p. 37, note). 120. The effect of his signature will "Ibid., §34, pp. 36-38; see also be considered later. House Bules I and X of 53d Congress. 12 There is no appeal from such a " Eule X of 53d Congress. 454 OPPICEES' OF HOUSE OF EEPBESENTATIVES. [CHAP. X. to act as the leader of the majority, with the assistance of a member who is chosen by a caucus or assumes by common con- sent the position of leader on the floor. He thus is responsible for the action of the House, and discharges in this respect many of the legislative functions of the prime minister under a system of cabinet government. He has not, however, like the latter, any control over the executive ; and his power and that of the major- ity behind him are subject to the checks of the President and the courts, as well as of the upper house. In the House of Commons, on the other hand, the speaker, during the past century, has main- tained a dignified impartiality. The speaker, being a member of the House, does not lose the right to vote upon every question which is vested in him on behalf of the constituency which he represents. ^^ The rules provide that " he shall not be required to vote in ordinary legislative pro- ceedings, except when his vote would be decisive, or where the house is engaged in voting by ballot ; and in all cases of a tie vote the question shall be lost." ^^ Since a proposition is defeated by a tie vote as well as by a majority of one against it, it has been said that the speaker under this rule is never required to vote ex- cept in case of a ballot.^" In the United States the speaker is liable to suit in the courts for a trespass that he has committed under the order of the House.^^ The rule is otherwise in Great Britain, where each House of Parliament is still treated as a court, the decisions of which are respected by other judges even though they beheve them to be erroneous.^^ 16 The right of the speaker to vote speaker in 1817, voted in favor of an when there is no tie was established internal improvement bill which Madi- in 1803 upon the adoption of the son had vetoed. Twelfth Amendment to the Constitu- ^^ Kule I of 53d Congress, which tion. Nathaniel Macon of Virginia, was originally adopted April 7th, 1789. who was then Speaker, made up by " Orutchfield, Digest and Manuafof his vote the necessary two-thirds in the Kules and Practice of the House favor of the amendment, thus dis- of Eepresentatives (1893), p. 534. regarding as unconstitutional the ^ Kilbourn v. Thompson, 103 U. S., House rule then in force which for- 168; Kielley v. Carson, 4 Moore, P.O., bade him to vote except in case of a 63. tie. (Benton, Thirty Years' View, " Burdett v. Abbott, 14 East, 1 ; vol. i, p. 118.) Henry Clay, when Bradlaugh v. Gossett, 12 Q. B. D., 271. § 73.] OTHBE HOUSE OPPICEES. 455 § 73. Other Officers of the House. The other officers of the House of Representatives are similar in name and functions to those in the House of Commons and the State legislatures, the clerk, sergeant-at-arms, doorkeeper, post- master and chaplain, all of whom are elected by the House from persons not members, and appoint their subordinates. ^ They hold office after the expiration of the Congress at which they were chosen and until their successors are chosen and quali- fied.^ The chief duty of the clerk is to keep the records of the House and to make the preliminary entries in the journal sub- ject to correction by the speaker and the House.^ He has also, by rule and statute, the important duty to call the preliminary roll of members upon the organization of each Congress, and to preserve order and decide all questions of order subject to appeal until the House has elected a permanent or temporary speaker.* This gives him an enormous power, which might be used to pack the House with members not elected, since it is the practice to re- fuse to entertain motions to amend the preliminary roll and to entertain no appeals from such decisions.^ The sergeant-at-arms, as his name denotes, is the military officer of the House. His duties are to preserve order, to exe- cute the commands of the speaker against members and strangers, and thus to protect the House from attacks from within and with- out.^ In conjunction with the sergeant-at-arms of the Senate he appoints the capitol police ; ^ and he is also the disbursing officer of the House.^ The duties of the doorkeeper, postmaster and chaplain suffi- ciently appear from their respective names.® All these officers are, in the United States, although not in Great Britain,^'* responsible to the courts for trespasses committed § 73. 1 Rule II of 53d Congress. quently referred to by Crutchfleld, 2 Ibid. Digest and Manual, ed. of 1893, p. 8 Rules I, III. 302. *U.S. Rev. St., §31; Rule III. See e 26 St. at L., p. 645; Rule IV. supra, § 38, over note 87; infra, Ch. ' V. S. Rev. St., § 1821. XVI. 8 26 St. at L., p. 645. * See proceedings at the organiza- ° Rules V, VI, VII. tion of the 41st Congress and subse- i" Burdett v. Abbott, 14 East, 1 ; 456 OPPICBES OF HOUSE OF KEPRESENTATIVES. [CHAP. X. in obedience to the orders of the House.^^ Private citizens whom they have thus unlawfully arrested may be taken from their cus- tody by the writ of habeas corpus ; ^ but it has been held that no court has power to control the action of the clerk of a legislative house in making up its preliminary roll.^^ Bradlaugli v. Gossett, 12 Q. B. D., 271 ; p. 1618 ; In re Gunn, 50 Kansas, 155 ; Swpra, § 72 and infra. s. c. 32Pac. Bep.,948. But see Frazier's 11 Kilboum v. Thompson, 103 TJ. S., Impeachment Trial, infra, § 94, and 168 ; supra, § 74 and infra. Appendix to this volume. 12 In the Matter of Kilboum, S. 0. is Bingham -o. Jewett (K. H.), 29 D. C, by Carter, G. J., cited by Cooley, Atl. Kep., 694 ; infra, Oh. XVI. Constitutional Limitations, 6th ed., CHAPTEE XL THE SENATE. § 74. The Constitutional Provisions Concerning tlxe Senate. The Senate of the United States is the only upper legislative chamber in the world that has the strength to resist the will of the electorate for a considerable period of time. It represents the Federal principle in the government, and besides its legislative has important executive functions. The constitutional provisions concerning the Senate are as fol- lows : — "The Senate of the United States shall be composed of two Sena- tors from each State, chosen by the Legislature 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 exphation of the second Year, of the second Class at the expira- tion of the fourth Year, and of the third Class at the expiration of the sixth Year, so that one-third may be chosen every second Year ; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make tempo- rary 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 stall not, when elected, be an Inhabitant 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 chuse their other Officers, and also a President pro tempore, in the Absence of the Vice-President, or when he shall exer- cise the OflSce of President of the United States. "The Senate shall have the sole Power to try all Impeachments. 457 458 THE SENATE. [CHAP. XI. 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 concurrence of two-thirds of the Members present. ' ' Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States : but the Party con- victed shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law." ^ The President ' ' shall have Power, by and with the Advice and Con- sent 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 Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court and all other Offi- cers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." " "If no person have a majority of the electoral votes for Vice-Pres- ident, then from the two highest members on the list, the Senate shall choose the Vice-President ; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary for a choice." ^ These last powers will be discussed subsequently under the head of the executive. The remaining parts of the Constitution which refer to the Senate do so in connection with the House of Representatives and will be considered in their consecutive order.* § 74. 1 Constitution, Article I, See- ploygs of the Treasury, colonels and tion 3. other superior officers of the national 2 Ibid., Article II, Section 2; infra. army and navy, on the terms which s Ibid., Twelfth Amendment; infra. the law shall provide. * The functions of the Senate of " c. To authorize the Executive to the Eepublic of Mexico, besides those permit the departure of national troops which are legislative, are thus defined beyond the limits of the Republic, the in the Constitution (Art. 72, B) : — passage of foreign troops through the " The exclusive powers of the Sen- national territory, the station of ate are : — squadrons of other powefs for more "a. To approve the treaties and than a month in the waters of the diplomatic conventions which the Ex- Eepublic. ecuti ve may make with foreign powers. "d. To give its consent in order that "6. To ratify the appointments the Executive may dispose of the which the President of the Republic national guard outside of their re- may make of ministers, diplomatic spective States or Territories, deter- agents, consuls-general, superior em- mining the necessary force. 75.] ORIGIN. 459 § 75. Origin of the Senate. The name of Senate is taken from the body which ruled ancient Rome ; and its prototype was the body of senior warriors with "e. To declare, when the constitu- tional legislative and executive powers of a State shall have disappeared, that the case has arrived for appointing to it a provisional Governor, who shall call elections in conformity with the Constitutional laws of the said State. The appointment of Governor shall be made by the Federal Executive with the approval of the Senate, and in its recesses with the approval of the Permanent Commission. Said func- tionary shall not be elected Constitu- tional Governor at the elections which are had in virtue of the summons which he shall issue. "/. To decide political questions which may arise between the powers of a State, when any of them may appear with this purpose in the Senate, or when on account of said questions constitutional order shall have been interrupted during a, con- flict of arms. In this case the Senate shall dictate its resolution, being subject to the general Constitution of the Eepublio and to that of the State. " The law shall regulate the exer- cise of this power and that of the preceding. " g. To constitute itself a jury of judgment in accordance with Art. 105 of this Constitution." "Art. 105. The houses shall take cognizance of oflScial crimes, the House of Deputies as a jury of ac- cusation, the Senators as a jury of judgment. "The jury of accusation shall have for its object to declare, by an abso- lute majority of votes, whether the accused is or is not culpable. If the declaration should be absolutory, the functionary shall continue in the exercise of his ofQee ; if it should be condemnatory, he shall be immedi- ately deprived of his offioe, and shall be placed at the disposal of the Senate. The latter, formed into a jury of judgment, and, with the presence of the criminal and of the accuser, if there should be one, shall proceed to apply, by an absolute majority of votes, the punishment which the law designates." Those of the Senate of the Kepublic of Colombia : — "Art. 98. The Senate shall also be invested with the following powers : I. To reinstate those who have forfeited their citizenship. This act of clemency, according to the case and circumstances of him who solicits it, shall have reference only to electo- ral rights, or also to the capacity to fill determined public oflaces, or jointly to the exercise of all political rights. II. To appoint two members of the Council of State. III. To accept or decline the re- signations of the president or vice- president or the designato. IV. To confirm or reject nomina- tions made by the President of the Re- public of judges of the Supreme Court. V. To confirm or rej ect the military appointments made by the Govern- ment, from the rank of lieutenant- colonel to that of the highest ofBces in the army and navy. VI. To grant leave to the President of the Republic to be temporarily absent from the capital for other cause than sickness, or to exercise his functions outside of the capital. VII. To permit the passage of 460 THE SENATE. [chap. XI. whom the king or chieftain held his councils of war ; but in its legislative functions it resembles the Roman tribunate more closely than its name father,^ and its immediate model was the House of Lords. foreign troops through the territory of the Kepublio. VIII. To appoint the commis- sioners referred to in Article 4 (sur- veyors of boundary lines). IX. To authorize the Government to declare war against another nation." Those of the Senate of the Republic of Ecuador : — "Art. 45. The exclusive powers of the Senate are : 1. To take cognizance of and try, upon articles formulated by the Chamber of Deputies, cases of im- peachment against the public func- tionaries spolien of in article 50. 2. To restore citizenship to any person who may have lost the same for whatever reason, except treason to the benefit of a hostile State or foreign invaders. 3. To restore, upon proof of in- nocence, the good name of those un- justly condemned." Those of the Senate of the Argen- tine Republic : — " Art. LI. The Senate shall have the sole power to try in public the officials impeached by the Chamber of Deputies, and Senators, when sitting for that purpose, shall be sworn. When the impeached official is Presi- dent of the nation the Chief-Justice of the Supreme Court shall preside in the Senate. No person shall be con- victed without the concurrence of two-thirds of the members present. "Art. LII. Judgment in cases of impeachment shall not extend further than to removal from office, or dis- qualification to hold and enjoy any office of honor, trust, or profit under the Nation ; but the party convicted shall nevertheless be liable and sub- ject to indictment, trial, and punish- ment, according to law, in and by the ordinary courts. "Art. LIII. It is also incumbent upon the Senate to authorize the Presi- dent of the nation to declare a state of siege at one or more points in the national territory, in case of foreign aggression." In the Kepublio of France, by the law of February 24, 1875, Article 9 :— " The Senate may be constituted a, Court of Justice to judge either the President of the Republic or the ministers, and to take cognizance of attacks made upon the safety of the State." For an account of the French Senate, see The Present Constitution of France, by R. Saleilles, Annals of American Association of Political and Social Science, vol. vi, p. 37. In the Republics of Venezuela, Chili and Brazil the Senate also tries im- peachments. In Belgium Impeach- ments are instituted by the lower house and tried before a Court of Appeal which consists of a joint meet- ing of both houses (Art. 90). In Brazil and Chili, the appointments of judges and diplomatic officers must be made with the advice and consent of the Senate. In Chili, certain officers can- not be removed without the consent of the Senate when it is in session; and the President must " command in person the inland and naval forces, in accord with the Senate, and during its recess, with the Standing Com- mittee" (Art. 82. See Hancock, His- tory of Chili, pp. 425-455). § 75. 1 The duties of the Roman Senate were chiefly executive (Maine, Popular (3-ovemment, Essay IV). § 75.J ORIGIN. 461 The bicameral system of legislation was due to a happy accident, the preference of the English clergy to vote their supplies in convocation rather than in Parliament.^ The three or four estates which gained the right to assemble on the continent of Europe were more subject to division and less capable of co-operation than the Lords and Commons, and so were unable to maintain their position against the court. The gentlemen of England in both houses usually stood together as long as the aggression of the king was to be feared ; ^ and their success made that legisla- tive form the admiration of the philosophers of the eighteenth century. The colonial governors were aided by appointed councils, or in a few cases by a body of elected assistants,* who reviewed the measures passed by the assemblies. They at first sat together, but a dispute over the ownership of a pig caused in Massachusetts a separation in 1644 which was imitated by the other colonies ; and the lower houses used their studies of English history to assert that they were entitled to all the privileges of the House of Com- mons, including the control of bills of supply, and to insist that the councils had in that respect and as regards impeachments the same powers as the House of Lords.^ At the formation of the first State constitutions, the natural course was usually adopted : a continuance in imitation of the practice in the mother country and the colonies.^ The praise by Montesquieu of this part of the British Constitution and the recollection of the conduct of the Long Parliament during the suppression of the House of Lords, made the division of the legislative power popular.''' 2 (Smpto, § 47. '"Several States, since the war, 8 See May, Constitutional History have experienced the necessity of a of England (Am. ed.), vol. 1; ch. v. division of the legislature. Maryland 4 Supra, § 47. 'was saved from a most pernicious 5 Moran, Else and Development of measure by her Senate. A rage for the Bicameral System in America, paper money, bordering on madness, Johns Hopkins University Studies, prevailed in their House of Delegates vol. xiii, pp. 211, 216. Chalmers, In- —an emission of £500,000 was pro- troduction to the History of the Ke- posed ; a sum equal to the circulating volt of the American Colonies ; supra, medium of the State. Had the sum § 47, over note 27. heen emitted, every shilling of specie 6 Poore's Charters and Constitu- would have been driven from eircu- tions. lation, and most of it from the State. 462 THE SENATE. [chap. XI. Pennsylvania, Georgia and Vermont were the only States to es- tablish legislatures with single chambers ; and the action of the former was due to the personal preference and influence of Frank- lin. His remark that a legislature with two branches was like a wagon driven by a horse before and a horse behind, in opposite directions, is said to have carried the measure through the consti- tutional convention.^ The subsequent repetition by the French Such a loss would not have been re- paired in seven years — not to mention the whole catalogue of frauds which would have followed the measure. The Senate, like honest, judicious men, and the protectors of the in- terests of the State, firmly resisted the rage, and gave the people time to cool and to think. Their resistance was effectual — the people acquiesced, and the honor and interest of the State were secured. "The house of representatives in Connecticut, soon after the war, had taken offence at a certain act of Con- gress. The upper house, who under- stood the necessity and expediency of the measure better than the people, refused to concur in a remonstrance to Congress. Several other circum- stances gave umbrage to the lower house ; and to weaken or destroy the influence of the Senate, the repre- sentatives, among other violent pro- ceedings, resolved not merely to re- move the seat of government, but to make every county town in the State the seat of government, by rotation. This foolish resolution would- have disgraced school-boys — the Senate saved the honor of the State by re- jecting it with disdain — and within two months every representative was ashamed of the conduct of the house. AH public bodies have these fits of passion, when their conduct seems to be perfectly boyish ; and in these par- oxysms, a check is highly necessary. "Pennsylvania exhibits many in- stances of this hasty conduct. At one session of the legislature, an armed force is ordered, by a precipi- tate resolution, to expel the settlers at Wyoming from their possessions — at a succeeding session, the same people are confirmed in their possessions. At one session, a charter is wrested from a corporation — at another, restored. The whole State is split into parties — everything is decided by party — any proposition from one side of the house is sure to be damned by the other — and when one party perceives the other has the advantage, they play truant — and an ofloer or a mob hunt the absconding members in all the streets and alleys in town. Such farces have been repeated in Philadel- phia — and there alone. Had the legis- lature been framed with some check upon rash proceedings, the honor of the State would have been saved — the party spirit would have died with the measures proposed in the legis- lature. But now, any measure may be carried by party in the house; it then becomes a law, and sows the seeds of dissension throughout the state." (An examination into the lead- ing principles of the Federal Consti- tution proposed by the late Conven- tion held at Philadelphia, with answers to the people's objections that have been raised against the system. By a Citizen of America [by Noah Web- ster], pp. 11-12; Ford's Pamphlets on the Constitution, pp. 33-34.) 8 Adams, Defence of American Con- stitutions, vol. i, pp. 105-106; Story on the Constitution, § 537. §75.] ORIGIN. 463 National Convention of the abuses of the Long Parliament, com- bined with far greater excesses, so deeply impressed mankind with the need of some check upon a popular assembly that the bicameral system is now almost universal.^ As the nineteenth century approaches its close, we see criticisms of second chambers similar to those which were rife at the end of the eighteenth century.io "If a second chamber," said Si^y^s, " dissents from the first, it is mischievous ; if it agrees, it is super- fluous." ^^ The two principal advantages of such a system are the prevention of tyranny and self-seeking by a single house, and the check to rash, ill-considered measures which may be demanded by the people.^ The former, men have now learned to prevent by ' The only single legislative cham- bers now in existence which the re- searches of the writer have been able to discover are in Servia, Bulgaria, Greece, the Orange Free State, San Domingo, Salvador, Honduras, Guate- mala and the Colony of British Colum- bia ; and the history of most of them has not tended to commend the in- stitution. The councils of Montenegro and Andorra seem to belong to the earlier type, where the voters have an immediate share in legislation. In Finland representatives of the four estates are still occasionally convoked. 1" Milton, in his Beady and Easy Way to Establishe a Free Common- wealth, Sir James Mackintosh, in Vin- diciae Gallicae (§ iv), and Franklin in the first Pennsylvania Convention (supra, over note 8), all men of deep learning and broad political experi- ence, were believers in the advan- tages of a single legislative chamber. So also were Turgot (letter to Dr. Price on the American Bevolution) and the leaders of the French Bevolu- tion. John Stuart Mill expressed a preference for a single chamber with minority representation (Bepre- sentative Government, ch. xiii). See also the remarks of Goldwin Smith in the Bystander for May, 1880, quoted by Doutre, Constitution of Canada, p. 66 ; infra, note 11 ; and the debates in the committee on the French Consti- tution of 1848, Souvenirs d' Alexis de Tocqueville, Paris, 1893, p. 368. ^1 See Maine's criticism of this epigram in Popular Government, p. 178. " Nominated Senates are nulli- ties with a latent possibility for mis- chief," said Goldwin Smith in the Bystander (Toronto, May, 1880, quoted by Doutre, Canadian Constitution, p. 67). 12 " I attach little weight to the argument oftenest urged for having two Chambers — to prevent precipi- tancy, and compel a second delibera- tion ; for it must be a very ill-consti- tuted representative assembly in which the established forms of busi- ness do not require many more than two deliberations. The consideration which tells most to my judgment, in favor of two Chambers (and this I do regard as of some moment), is the evil effect produced upon the mind of any holder of power, whether an in- dividual or an assembly, by the con- sciousness of having only themselves to consult. It is important that no set of persons should be able, even tem- porarily, to make their sic volo prevail 464 THE SENATE. [CHAP. XI. means of the powers vested by written constitutions in the execu- tive and the courts. The latter has seemed less important to those who have been accustomed for more than a century to see the peo- ple govern themselves without resulting injury ; and the stubborn opposition of the House of Lords to almost every salutary measure of reform, whether social, religious or political, has aroused storms of public indignation which have destroyed its influence and greatly weakened its powers. It is now usually conceded to be a rule of the Constitution in Great Britain and its colonies where the Crown has the power to appoint members of the upper chamber, that the House of Lords, Senate or Council, must pass a bill which it has once rejected, if in the meantime the leaders of the lower branch have appealed to the people by a dissolution, and a new house of representatives has been elected and passed the same measure a second time.^^ In case of a refusal the Crown, at the request of the leaders of the elective assembly, will appoint enough members to overcome the opposition.^* The elective upper cham- bers in other countries have little hold on popular respect; and on any difference of importance with the lower houses they are nearly always brought to terms by a threat to cut off the supplies, which they know will produce a crisis wherein the people will take sides with their more immediate representatives. The bicam- eral system was at one time in favor for cities in the United States, but is now generally abandoned there. It persists in full vigor in the State legislatures, but few if any instances have without asking any one else for liis i* Such an appointment of twelve consent. A majority in a single as- peers was made once in Great Britain, sembly, when it has assumed a per- by Queen Anne in 1712, in order to manent character — when composed create a Tory majority in the House of the same persons habitually acting of Lords ; but the threat of a similar together, and always assured of vie- proceeding secured the passage of tory in their own House — easily be- the Eeform Bill by the peers in 1832, comes despotic and overweening if and has undoubtedly prevented the released from the necessity of con- defeat of other salutary measures, sidering whether its acts will be In May, 1894, a similar threat secured concurred in by another constituted the passage of the Civil Marriage bill authority " (Mill, Representative G-ov- by the Hungarian House of Magnates, ernment, ch. xiii). which had previously rejected it. 13 See Lord Salisbury's Speech on (New York Sun, Oct. 6, 1895.) the Irish Church Bill, cited by Maine, Popular Government, p. 117. §76.] ORIGIN. 465 occurred in recent years where State senates have withstood strong currents of public opinion ; ^^ while since they are smaller they are usually more easily purchased than the houses of assem- bly. The Senate of the United States alone preserves the public respect, and has in numerous cases done public service by its defeat of mischievous measures, pushed through the House of Representatives by waves of popular excitement, which have sub- sequently subsided, leaving the bills without further support,!^ while until recent years at least the confidence in the beneficial effects of the institution has not been shaken.^^ The reason for this lies in the fact that the Senate represents the Federal sys- tem in the Constitution, and that faith in such a representation has been a habit of the people since the opening of the Revolution, so that the custom is so strong that it would require a great shock for its destruction.!^ 16 The earlier State Senates usu- ally represented property, more es- pecially than the lower houses. 16 See infra, § 80. " See infra, § 80. 1' See Maine, Popular Government, Essay III; and again Essay IV, p. 229 : " Nothing but an historical prin- ciple can be successfully opposed to the principle of making all public powers and all parliamentary assem- blies the mere reflection of the average opinion of the multitude." In Great Britain, Portugal, Prussia, Bavaria, Hungary, Saxony, Baden and Wurtemberg, the upper chambers are composed chiefly of hereditary members or those appointed for life or elected to represent an hereditary class ; although in Portugal and Hun- gary a few members seem to be chosen by a method of election which indirectly represents the people. In Germany members of the upper house are appointed for each session by the governments of the members of the empire. In most of the other coun- tries and the British colonies members of the upper chambers are appointed for life or elected for a term longer than the assembly, either immediately or indirectly by the people; with in some countries the requirement of a property qualification. In Italy the senators have a limited choice of new members. The practice in New Zealand and Japan also presents some peculiarities. (See The Parliaments of the World, Nineteenth Century for 1894, p. 708.) John Stuart Mill was in favor of a single chamber with minority representation ; but con- sidered that the best second chamber would be a body of men who had held important ofQces, or employments, legal, political, military or naval : — " Of all principles on which a wisely conservative body, destined to moder- ate and regulate democratic ascen- dency, could possibly be constructed, the best seems to be that exemplified in the Eoman Senate, itself the most consistently prudent and sagacious body that ever administered public affairs. The deficiencies of a demo- cratic assembly, which represents the general public, are the deficiencies of the public itself, want of special train- 466 THE SENATE. [chap. xr. § 76. Proceedings in the Federal Convention Concerning tlie Composition of the Senate. Nearly all the members of the Federal Convention were firmly- convinced of the necessity of two legislative houses, if a national ing and knowledge. The appropriate corrective is to associate with it a body of which special training and knowledge should be the character- istics. If one House represents popu- lar feeling, the other should represent personal merit, tested and guaranteed by actual public service, and fortified by actual experience. If one is the People's Chamber, the other should be the Chamber of Statesmen — a council composed of all living public men who have passed through any important political office or employ- ment. Such a chamber would be fitted for much more than to be a merely moderating body. It would not be exclusively a check, but also an impelling force. In its hands, the power of holding the people back would be vested in those most com- petent, and who would then be most inclined to lead them forward in any right course. The council to whom the task would be intrusted of rec- tifying the people's mistakes would not represent a class believed to be opposed to their interests, but would consist of their own natural leaders in the path of progress. No mode of composition could approach to this in giving weight and efficiency to their function of moderators. It would be impossible to cry down a body always foremost in promoting improvements as a mere obstructive body, what- ever amount of mischief it might obstruct. " Were the place vacant in England for such a Senate (I need scarcely say that this is a mere hypothesis), it might be composed of some such elements as the following: All who were or had been members of the Legislative Commission described in a former chapter, and which I regard as an indispensable ingredient in a well constituted popular goveru- ment. All who were or had been chief justices, or heads of any of the superior courts of law or equity. All who had for five years filled the office of puisne judge. All who had held for two years any cabinet office; but these should also be eligible to the House of Commons, and, if elected members of it, their peerage or sena- torial office should be held in suspense. The condition of time is introduced to prevent persons from being named cabinet ministers merely to give them a seat in the Senate ; and the period of two years is suggested, that the same term which qualifies them for a pension might entitle them to a sena- torship. All who had fiUed the office of commander-in-chief; and all who, having commanded an army or a fleet, had been thanked by Parliament for military or naval successes. All governors-general of India or British America, and all who had held for ten years any colonial governorships. The permanent civil service should also be represented ; all should be senators who had filled, during ten years, the important offices of under- secretary to the Treasury, permanent under-secretary of State, or any others equally high and responsible. The functions conferring the senatorial dignity should be limited to those of a legal, political, or military or naval character. Scientific and literary ami- §76.J PROCEEDINGS IN CONVENTION. 467 government was to be established, their session the resolution, — On the third active day of " ' that the national legislature ought to consist of two hranches,' was agreed to without debate or dissent, except that of Pennsylvania, given probably out of complaisance to Dr. Franklin, who was under- stood to be partial to a single house of legislation." ' Upon a subsequent vote, New York, New Jersey and Delaware voted against the proposition ; Pennsylvania joined the majority of seven States, and Maryland was divided ;2 but the real dispute at that time was whether the United States should continue as a confederacy or be made a nation ; and the minority were influenced by the desire of accomplishing the former rather than by a con- viction of the advantages of a single chamber in a national government. Randolph's resolutions proposed also that the second branch be elected by the first out of nominations by the State nenee are too indefinite and disput- able : they imply a power of selection, whereas the other qualifications speak for themselves; if the writings by which reputation has been gained are unconnected with politics, they are no evidence of the special qualities required, while if political they would allow successive ministries to deluge the House with party tools." (Repre- sentative Government, ch. xiii.) It may be doubted, whether a body composed of aged and gouty men on the retired list which would be used as a shelf upon which to lay politi- cians who had outlived their useful- ness or had temporarily lost their seats in the lower house, could be expected to favor any novel measures of reform or to have any effect not of a reactionary character. SeeWool- sey. Political Science, vol. ii, p. 315. "We may imagine very easily in a moment's reflection what would have been the condition of this country at this moment had the Senate of the United States been constituted on a different principle. If the size and populations of the several States had been the test of representation in the Senate of the United States, I think it is not too much to say in sober minded truth that this Eepublic would not have endured until now. Many and many have been the times when, if the right of the Senators of each State to resist and defeat the cuiTent of popular passion and prejudice which arises sometimes in the action of the popular body, the House of Eepresentatives, had failed to exert itself as it would have failed if the Senate had been constituted as the national House of Eepresentatives, discord and revolution would almost certainly have caused the dismember- ment of the Union." Senator George F. Edmunds, in reply to the toast, " The United States Senators of Ver- mont," at the reunion of the survivors of the members of the Vermont Legis- latures at Montpelier, Vermont, re- printed in The New York Times. § 76. 1 Madison Papers, Elliot's De- bates, 2d ed^, vol. v, p. 135. 2 Ibid., p. 223. 468 THE SENATE. [CHAP. XI. legislatures, but this was defeated by the votes of seven States to three.^ In the debate upon the question whether the lower house should be elected by the State legislatures, — "Mr. Dickinson considered it essential that one branch of the legis- lature should be drawn immediately from the people, and expedient that the other should be chosen by the legislatures of the States. This combination of the State governments with the national government was as politic as it was unavoidable. In the formation of the Senate, we ought to carry it through such a refining process as will assimilate it, as nearly as may be, to the House of Lords in England." * After the defeat of the motion for an election of the lower house by the State legislatures, in which he voted with the major- ity, he moved,^ — " that the members of the second branch ought to be chosen by the in- dividual legislatures." ° " Mr. Dickinson had two reasons for his motion, — first, because the sense of the States would be more easily collected through their govern- ments than from the people at large ; secondly, because he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible ; and he thought such characters more likely to be selected by the State legislatures than in any other mode." ' Roger Sherman seconded the motion that, it seems not un- likely, was an entering wedge for the compromise that he sub- sequently suggested.8 The only strong opposition was from Wil- son, who proposed instead, — "an election by the people, in large districts, which would be most likely to obtain men of intelligence and uprightness ; subdividing the districts only for the accommodation of voters."" ' ' Mr. Gerry insisted that the commercial and moneyed interest would be more secure in the hands of the State legislatures than of the people at large." ^° 8 Ibid., p. 139. 9 Ibid., p. 169. Madison supported ^ Ibid., p. 163. Wilson, but would not carry the dele- 6 Ibid., p. 164. Supra, § 51. gation o£ his State. Ibid., pp. 169- 6 Ibid., p. 166. 170. ' Ibid. 10 Ibid., p. 169. 8 See ibid., p. 240, note. §76.] PEOCEEDINGS IN CONVENTION. 469 All the States but Pennsylvania, however, voted against the postponement of Dickinson's motion to take up that of Wilson ; and the former was then unanimously adopted.^^ Upon a subsequent vote it was again carried by nine States against two, Pennsylvania and Virginia being in the minority.^^ "Mr. Read proposed, 'that the Senate should be appointed by the executive magistrate, out of a proper number of persons to be nominated by the individual legislatures.' His proposition was not seconded, nor supported." '* The length of the term of the Senate was designed to give an opportunity for deliberation in legislation to protect the people against themselves.^* Some of the State senates sat for tM'o, others 11 Ibid., p. 170. 12 Ibid., p. 240. IS Ibid., p. 167. Gouverneur Morris also wished to have the senators ap- pointed by the executive. Ibid., p. 272. 1* ' ' Mr. Madison. In order to j udge of the form to be given to this in- stitution, it will be proper to take a view of the ends to be served by it. These were — first, to protect the people against their rulers ; secondly, to protect the people against the tran- sient Impressions into which they themselves might be led. A people deliberating in a temperate moment, and with the experience of other na- tions before them, on the plan of government likely to secure their happiness, would first be aware, that those charged with the public happi- ness might betray their trust. An obvious precaution against this danger would be, to divide the trust between different bodies of men, who might watch and check each other. In this they would be governed by the same prudence which has prevailed in or- ganizing the subordinate departments of government, where all business lia- ble to abuses is made to pass through separate hands, the one being a check on the other. It would next occur to such a people, that they themselves were liable to temporary errors, through want of information as to their true interests ; and that men chosen for a short term, and employed but a small portion of that in public affairs, might err from the same cause. This reflection would naturally sug- gest, that the government be so con- stituted as that one of its branches might have an opportunity of acquir- ing a competent knowledge of the public interests. Another reflection equally becoming a people on such an occasion, would be, that they them- selves, as well as a numerous body of representatives, were liable to err, also, from fickleness and passion. A necessary fence against this danger would be, to select a portion of en- lightened citizens, whose limited number, and firmness, might season- ably interpose against impetuous counsels. It ought, finally, to occur to a people deliberating on a govern- ment for themselves, that, as different interests necessarily result from th« liberty meant to be secured, the major interest might, under sudden im- pulses, be tempted to commit injus- tice on the minority. In all civilized countries the people fall into different classes, having a real or supposed difference of interests. There will be 470 THE SENATE. [chap. XI. for three, others again four, and that of Maryland for five years.^^ The last had the right to fill vacancies in its own body.^^ . The term of six years was chosen as a compromise between nine and four. There was a tie vote upon the question to agree to five.^' Four members, one of whom vi^as Alexander Hamilton, proposed that the senators should hold their offices for life, unless removed by impeachment.^^ creditors and debtors ; farmers, mer- chants, and manufacturers. There will be, particularly, the distinction of rich and poor. It was true, as had been observed (by Mr. Pinokney), we had not among us those hereditary distinctions of ranli which were a great source of the contests in the ancient governments, as well as the modern states, of Europe ; nor those extremes of wealth or poverty which characterize the latter. We cannot, however, be regarded, even at this time, as one homogeneous mass, in which everything that affects a part will affect in the same manner the whole. In framing a system which we wish to last for ages, we should not lose sight of the changes which age will produce. An increase of population will of necessity increase the proportion of those who will labor under all the hardships of life, and secretly sigh for a more equal distri- bution of its blessings. These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suf- frage, the power will slide into the hands of the former. No agrarian attempts have yet been made in this country; but symptoms of a levelling spirit, as we have understood, have sufficiently appeared, in a certain quarter, to give notice of the future danger. Bow is this danger to be guarded against, on the republican principles; how is the danger, in all cases of interested coalitions, to oppress the minority, to be guarded against? Among other means, by the establishment of a body, in the govern- ment, sufficiently respectable for its wisdom and virtue to aid, on such emergencies, the preponderance of justice, by throwing its weight into that scale. Such being the objects of the second branch in the proposed government, he thought a consider- able duration ought to be given to it. He did not conceive that the term of nine years could threaten any real danger; but, in pursuing his particu- lar ideas on the subject, he should require that the long term allowed to the second branch should not com- mence till such a period of life as would render a perpetual disqualifi- cation to the re-elected, little incon- venient, either in public or private view. He observed, that, as it was more than probable we were now digesting a plan which, in its opera- tion, would decide forever the fate of republican government, we ought, not only to provide every guard to liberty that its preservation could re- quire, but be equally careful to supply the defects which our own experience had particularly pointed out." (Madi- son Papers, Elliot's Debates, 2d ed., vol. V, pp. 242-243.) See supm, § 75. " The Federalist, numbers xxxix, Ixiii. 16 Ibid. " Madison Papers, Elliot's Debates, 2d ed., vol. v, pp. 241-245. 18 The others were Bead, Bobert Morris, and Gouvemeur Morris (ibid., pp. 241, 271, 585). § 76.] PEOCEBDINGS IN CONVENTION. 471 The provision for the election of members by rotation was adopted unanimously at the suggestion of Gorham and Randolph.i^ Penn's Frame of Government, for Pennsylvania had provided that in the Council one-third of the members should be elected every year, and at the time of the Convention the upper houses of New York, Virginia and Delaware as well as of the first named State were filled in a similar manner.^'' The idea is said to have been borrowed from the senates of the cities in the Netherlands,^^ who had taken it from Venice. The grant to each State of an equal right of suffrage in the Senate was the result of the con- troversy between the large and small States, which nearly dis- rupted the Convention and finally resulted in the Connecticut compromise, suggested by Roger Sherman, as previously de- scribed.^ Luther Martin of Maryland wished that the Senate should vote by States, and Gouverneur Morris of Pennsylvania that the number from each State should be three ; but neither was able to carry more than the members of his own delegation in favor of his views.^ The provision for the temporary supply of vacancies in the Senate by the State executives was inserted by the Committee of Detail in the foUovdng form : — " Vacancies may be supplied by the executive until the next meeting of the legislature." ^ Upon the consideration of their report, — "Mr. Madison, in order to prevent doubts whether resignations could be made by senators, or whether they could refuse to accept, moved to strike out the words after 'vacancies,' and insert the words ' happening by refusals to accept, resignations, or otherwise, may be supplied by the legislature of the State in the representation of which such vacancies shall happen, or by the executive thereof until the next meeting of the legislature.' Mr. Gouverneur Morris. This is absolutely necessary; otherwise, as members chosen into the Senate are disqualified from be- "Ibid., p. 241. P- 423; Stevens, Sources of the Con- 2" Poore's Charters and Constitu- stitution, p. 78. tions, vol. ii, pp. 1520, 1334, 1910 ; vol. ^ Supra, §§ 48, 64. i, p. 274 ; Stevens, Sources of the Con- ^s Madison Papers, Elliot's Debates, stitution, p. 78; supra, §49, note 9. 2d ed., vol. v, pp. 356-357. 21 Campbell, The Puritan in Hoi- ^i ibid., p. 377. land, England and America, vol. ii. 472 THE SENATE. [CHAP. XI. ing appointed to any office, by Section 9, of this article, it will be in the power of the legislature, by appointing a man a Senator against his consent, to deprive the United States of his services. " The motion of Mr. Madison was agreed to nem. con." "^ The other words of this clause seem to have been inserted by the Committee of Style without discussion. The Convention consid- ered and disapproved suggestions that senators must have a prop- erty qualification,^ that like members of the House of Lords they should have the right to enter their dissents, in all cases, upon the journal,^^ that they should choose the President in case of a fail- ure of a choice by the electors, "^ that their consent should be required to pardons,^^ and that they should have the power to declare war ^^ and decide controversies between the States.^^ The proceedings as to the presidency of the Senate, impeachments, and the power of that body to concur in treaties and approve appoint- ments will be described later.^ The latter were suggested by the powers of the colonial councils.^ § 77. Senatorial Elections. The Constitution simply directs that the senators from each State shall be " chosen by the Legislature thereof," ^ without pre- scribing the manner of the choice. A subsequent provision is that — " The Times, Places, and Manner of holding Elections for Senators and Eepresentatives, 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 chusing Senators." '^ For nearly one hundred years after the adoption of the Consti- tution Congress left the matter to the regulation of the several States. It was settled by uniform acquiescence that the governor of a State, although by the Constitution his assent was necessary 25 Ibid., p. 396. 82 See infra, §§ 82, 88, and under 26 Ibid., p. 247. SMpro, § 61. the head of the executive power. 27 Ibid., pp. 407-408 ; see infra. ^ Infra, § 80. 28 Ibid., pp. 507-513. § 77. i Constitution, Article I, Seo- 29 Ibid., p. 480. tion 3. M Ibid., pp. 181, 438. 2 Constitution, Article I, Section 4, 81 Ibid., p. 379. see infra, Ch. XIV. 77.] SENATOEIAL ELECTIONS. 473 to the enactment of laws, was not a part of the legislature thereof when a senator was to be chosen.^ It was decided by the Senate that the two houses of the legislature might, by a joint resolution or rule adopted by both of them, without the consent of the governor, provide for the manner in which a senatorial election should take place ; and that the State constitution cannot limit the powers of the legislature in that respect.* It seems to have been the prevailing opinion shortly after the adoption of the Con- stitution that a senatorial election must take place by the ioint action of both houses of the legislature acting separately.^ The inconveniences of this method were, however, soon obvious, and the practice was adopted in several States of electing senators in joint convention of the two legislative houses in case the houses acting separately had failed to make a choice.^ This method was ' Story on the Constitution, 5th ed., § 705. * Yulee V. Mallory, Tatt's Senate Election Cases, continued by Furber, pp. 127, 129. In that case the report of the Committee on Privileges and Elections, which was presented by Mr. Bright, said, at p. 129 : "The next ob- jection is that it has not the forms of law usual in legislation, because it is not signed by the ofQcers of each house or approved by the governor. It is a sufBeient reply to state that the Constitution does not require the legislature to regulate the manner of election by law ; it may be by resolu- tion, either joint or several, or in any other method which commands the agreement of both houses of the legis- lature. The form of action being dis- cretionary and the substance right, the objection becomes immaterial. The will of the two houses, when ascertained by vote in their respective chambers, is for this purpose a suflS- cient law, because they alone are em- powered to prescribe the manner of choosing in such mode or by such means as they please. On this point a State Constitution can neither con- trol nor modify that of the United States, for the latter is the supreme law." See also Lucas v. Faulkner, ibid., p. 626, infra, note 11, and Opin- ions of Justices, 45 N. H., 595; Opin- ions of Judges, 37 Vt.,665. Supra, § 55, over note 6. * Kent's Commentaries, vol. i, p. 226 ; The Federal Farmer, Letter 12. This was the contention of the Federal- ists of New York at the iirst senatorial election in that State, when they had a majority in the State senate, and their political opponents a majority in the lower house and in the joint assembly. They refused consequently to agree to an election by a joint as- sembly after a disagreement between the two houses, and proposed that each house should then be required to choose one of the two candidates previously chosen by the other. The assembly refused to agree to this, and consequently New York was not rep- resented in the Senate at the first ses- sion of the First Congress (MoMaster, The Political Depravity of the Fathers. Atlantic Monthly, vol. Ixv, pp. 628- 629). 6 Kent's Commentaries, vol. i, pp. 226 ; Story on the Constitution, 5th ed., § 705. 474 THE SENATE. [chap. XI. approved by the Senate, whicli recognized an election by a majority of the members of both houses in joint convention as sufficient, although there was no concurrent majority by each house in favor of the successful candidate.'' It was, however, held that it was necessary that a quorum of each house should be present when the candidate was elected ; since otherwise it could not be said that he was elected by the legislature.^ The matter was settled by Congress in 1866, by the passage of an act for the regulation of senatorial elections as follows : — ' ' The legislature of each State which is chosen next preceding the expiration of the time for which any Senator was elected to represent such State in Congress shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator in Congress. Such election shall be conducted in the following manner : Each house shall openly, by a viva-voce vote of each member present, name one person or Senator in Congress from such State, and the name of the person voted for, who receives a majority of the whole number of votes cast in each house, shall be entered on the journal of that house by the clerk ' Simon Cameron's Case, Talt's Senate Election Cases, continued by Furber, p. 168. 8 Case of James Harlan, 1857, Taft's Senate Election Cases, continued by Furber, p. 139; but see the case of Fitch and Bright, 1857, ibid., p. 148. In Harlan's case, Senator Bayard of Delaware said : " On this state of facts, the question which I suppose to arise is, whether ' the legislature ' of a State, under the language of the Fed- eral Constitution delegating to the legislature the right to elect Senators of the United States, is to be taken to mean the individual members of the legislature or the body or bodies of which the legislature is composed. I suppose the term as used in the Con- stitution means the bodies of which the legislature is composed. The honorable Senator from Georgia, if I appreciate his argument, insists that the power being delegated to the leg- islature is vested in the members of the legislature, and that whenever a majority of the members of the whole legislature under a law such as that existing In Iowa vote for a man he is elected, though one of the co-ordinate branches of that legislature may not vote for him, and may, as a body, re- fuse to go into an election. Sir, I hold it to be a principle of law which has, I think, no exception, that where two integral bodies are authorized to do an act, it cannot be done without the consent of those two integral bodies. They must both be present and act in the matter or there can be no validity in the act done. This is a universal law. I can call to mind no case where a contrary principle prevails, whether relating to legislative action or cor- porate action. Indeed, in reference to corporations, it has been decided over and over again that where there are two integral bodies who must con- cur in an act they must both be pres- ent and act upon the matter as bodies, not as individuals." § 77.] SENATOBIAL ELECTIONS. 475 or secretary thereof ; or if either house fails to give such majority to any person on that day, the fact shall be entered on the journal. At twelve o'clock meridian of the day following that on which proceedings are required to take place as aforesaid, the members of the two houses shall convene in joint assembly, and the journal of each house shall then be read, and if the same person has received a majority of all the votes in each house, he shall be declared duly elected Senator. But if the same person has not received a majority of the votes in each house, or if either house has failed to take proceedings as required by this section, the joint assenibly shall then proceed to choose, by a viva-voce vote of each member present, a person for Senator, and the person who receives a majority of all the votes of the joint assembly, a majority of all the members elected to both houses being present and voting, shall be declared duly elected. If no person receives such majority on the first day, the joint assembly shall meet at twelve o'clock meridian of each succeeding day during the session of the legislature, and shall take at least one vote, until a Senator is elected. Whenever on the meeting of the legislature of any State a vacancy exists in the representation of such State in the Senate, the legislature shall proceed, on the second Tuesday after meeting and organization, to elect a person to fill such vacancy, in the manner prescribed in the preceding section for the elec- tion of a Senator for a full term. Whenever during the session of the legislature of any State a vacancy occurs in the representation of such State in the Senate, similar proceedings to fill such vacancy shall be had on the second Tuesday after the legislature has organized and has notice of such vacancy. It shall be the duty of the executive of the State from which any Senator has been chosen to certify his election, under the seal of the State, to the President of the Senate of the United States. The certificate mentioned in the preceding section shall be countersigned by the secretary of state of the State.'" Under this statute, the Senate lias held that an election is valid when made in a joint convention by a majority of the members of both houses, in the absence of a quorum of one of them.i" 9 U. S. B. S., §§ 14^19. The im- w Case of James B. Eustis, ibid., p. mediate cause of this legislation was 464 ; Davidson v. Call, ibid., pp. 710- John P. Stockton's Case, Taft's Senate 712. The last case overruled a deci- Election Oases, continued by Furber, sion on the subject by the State court ; p. 226; where the Senate divided State ea; reZ. Fleming u. Crawford, 28 almost evenly upon the question Fla., 441. See Spofford v. Kellogg; whether a plurality of the joint as- Taft's Senate Election Cases, contin- sembly could elect. ued by Furber, p. 471. It was the 476 THE SENATE. [chap. XI. Where the Constitution provided that the legislature in extraordi- nary session should enter upon no business, except that stated in the proclamation by which it was called together ; the Senate held that such a legislature might elect a senator and fill a vacancy, although that object was not stated in the proclamation.^! opinion of Senator Edmunds that so much of an act as declared what legis- lature should elect a senator and au- thorized the election by the legislature in joint convention was unconstitu- tional. " I wish to say one word, Mr. President, about what is called the act of Congress of 1866. The Constitution provides that Congress may regulate the manner by which and the time at which the legislature of a State shall elect a Senator. That is all the au- thority which the Constitution of the United States reposes in Congress over that subject. It says in another place, but in the same connection, that the legislature of a State shall ordinarily — I am not now on the question of filling vacancies — elect a Senator for a term of six years. It names nothing but the legislature of a State to do that. I was here when the act of 1866 passed, but I had just come into the Senate and I gave it no attention; I probably voted for it, if there was a division, it being reported by a committee. But I have been of the opinion ever since I came to ex- amine the subject, and I am of the opinion now, as I have stated before, I think, in this body, that the act of Congress, in so far as it undertakes to declare what legislature, whether chosen before or after the expiration of a term, or how long before or how long after, shall elect a Senator, goes beyond its constitutional power. I am also of opinion, and I state it de- liberately, and I believe I have stated it before, that when the Congress of the United States undertakes to cre- ate a body to elect a Senator which the Constitution of the State has not created, and which is not its legisla- ture, it has gone beyond its power. By the constitution, I think, of every State in the Union, certainly every one that I know of, the legislative power Is vested in two separate and independent bodies, each one of which acts by itself and for itself, and that is the legislature of the State of which the Constitution of the United States speaks when it says that the legisla- ture shall elect a Senator. Therefore I am of opinion that Congress has no more power to turn the two bodies, the Senate and House of Representa- tives of a State, formed under Its own constitution as two separate bodies of different numbers and of different constituencies, into one consolidated body voting per capita, than it has to declare that a town meeting in the State of Vermont may elect a Senator and call that a legislature, because it is not by the constitution of the State its legislature. But that is apart from this question, and I should not have referred to it only that the act of Congress has been spoken of." (Re- marks of Senator George F. Edmunds In Blair's Case, Congressional Eeoord, vol. xvii. Part I, p. 23. Taft's Senate Election Cases, continued by Furber, p. 44.) " Lucas V. Faulkner, Taft's Senate Election Oases, continued by Furber, 626. The grounds of the decision are clearly stated in the following extract from the Eeport of the Committee on Privileges and Elections presented by Senator George F. Hoar of Massachu- setts: "It is claimed by Mr. Lucas. §7T.] senatoeiaij elections. 477 The Senate lias decided that when, at the expiration of the senatorial term, there are in existence two State legislatures, the that, as this body was not permitted to enter upon any legislative business, except such as related to the eight matters set forth in the call, it was not a legislature, but was a body de- riving its power from the will of the executive, and so was exerting a cer- tain executive or quasi executive function, something like that which is exercised by the Senate in giving its assent to the nominations of pub- lic officers. But it seems to us that this view cannot be supported. In the first place, the body is expressly declared by the Constitution of West Virginia itself to be a legislature. In the next place, the function which it exercised in making enactments upon the eight great subjects mentioned in the call of the governor is clearly a legislative function. Among them, under Articles I and II, is the making appropriations of public money ; under Article III, the regulation of proce- dure in criminal cases ; under Articles V, VI, and VII would exist the power to declare certain high crimes and misdemeanors; and under Article VIII, to give the assent of the State to the establishment and confirmation of its boundary lines. "It is difficult to conceive of any definition of the word 'legislature' which would not include a body cap- able of passing and actually passing such enactments as these. They can be binding on the people of the com- monwealth only as legislation. They would be subject to be construed and enforced by the courts of that State only in their character as laws. "But it seems to the committee that the construction of the State con- stitution of West Virginia, upon which the above argument is based, is one which will not bear examination. When that constitution provided that the legislature so convened in extraor- dinary occasions 'should enter upon no business except that stated in the proclamation by which it was called together,' the people must be pre- sumed to have had in mind business to be transacted under authority of the State constitution, and not to have intended to prohibit the per- formance of duties imposed upon it by the supreme authority of the Consti- tution of the United States. " If the argument be sound that a legislative body which is prohibited from entering upon certain classes of business, or which is confined to cer- tain classes of business clearly legis- lative in their character, is no legisla- ture in the constitutional sense, its logic would require us to declare that the legislature of every State whose bill of rights excludes it from large domains of legislation is no legislative body. If, under the same provision of the Constitution of the United States, the act of Congress had fixed a day for holding elections for Kepre- sentatives to Congress, and the State constitution or laws should prohibit the assembling of the people for such elections on the day so fixed, it would, we suppose, be held clear that the act of the State would be void and the authority of the act of Congress would prevail. "We cannot see any difference be- tween such prohibition of a State constitution applicable to the consti- tutional electors of Senators, who are members of the State legislature, and the constitutional electors of repre- sentatives, who are a body of electors authorized to vote for members of the most numerous branch of the State legislature. 478 THE SENATE. [CHAP. XI. term of oifice of one of which has not expired and that of the other not begun; the latter, if the last elected, shall elect the sena- tor.i^ A permanent organization of a State legislature is not essential to a senatorial election. It is enough, if a sufficient temporary organization has been made, to warrant the passage of bills, although no permanent organization has been made and the secretary pro tempore has not taken any oath of oifice. ^^ ' ' The intention of the Congress, as is plainly evident from a consid- eration of the whole act, was to place it out of the power of a majority of either house to prevent a majority of the two houses acting together in joint assembly from electing a United States Senator, in a case where there had been such an" organization of the legislature as will enable it to exercise the ordinary functions of a legislative body, such as enact- ing laws and making record thereof. This being so, is not the conclu- sion irresistible that whatever is a sufficient organization to enable a legislature to do the latter should be sufficient to enable it to elect a United States Senator ? Any other construction would place it in the power of each house to organize so as to enable the legislature to sit its entire session of forty, sixty, or one hundred days, as the case may be, enact laws, and perform every function of its being, save and except only that of electing a United States Senator, and then adjourn, and yet would place it in the power of a factious majority in either house, the dilatory and obstructive action of which as a minority of a whole legislature in respect of proceeding with the necessary preliminary steps toward the election of a United States Senator is the very thing above all others the legislation was aimed at, to absolutely prevent the election of a Senator by refusing to make that permanent organization which the contestant insists is necessary before the legislature can elect a Senator." " The word " chosen " in the statute means the same as the word " elected," and the claim that the legislature is not chosen until "We therefore are clearly of the Session, vol. ij, No. 485; referred to in opinion that the election of Mr. Bell's Case, Taft's Senate Election Faulkner at the special session of Cases, continued by Purber, p. 27. the legislature of West Virginia was is ciaggett v. Dubois, Taft's Senate valid." Election Cases, continued by Furber, 12 See the report of the Committee pp. 668, 670-677. on Privileges and Elections, which was " Keport of the Committee on unanimously approved by the Senate, Privileges and Elections, presented Senate Eeports, 45th Congress, Sd by Senator Mitchell of Oregon, in § 77.] SENATORIAL ELECTIONS. 479 its organization is inadmissible.!*^ In computing the time which must intervene between the organization of the legislature and the election of a senator, where the organization takes place on a Tuesday, the second Tuesday is two weeks from that date.^^ A member of either house of Congress has the right to resign and in his resignation to appoint a future day upon which his res- ignation shall take effect; and the legislature may elect his suc- cessor before the appointed time.^^ Where, when a legislature meets, it is known that a vacancy will occur before another meeting of the same or a subsequent legislature, an election should be had to fill such vacancy, although at the same session the legislature elects a senator to fill the term the expiration of which will create a vacancy .^^ The failure of the legislature to commence a senatorial election on the day directed by the statute, or the failure of a quorum of one house to be present on one of the days when the statute directs that such an election shall be held, does not invalidate a subsequent election.!^ The Senate has recognized the right of the Vice-President to give the casting vote in case of a tie on the admission of a senator.^" After the determination of a contested election, either house has the power to reconsider the same at any time ; but this power has been rarely exercised.^i It has been held by the Senate that to deprive a member of his Claggett V. Dubois. Taft's Senate Election Cases, continued by Furber, Election Cases, continued by Furber, p. 692. p. 677. w Case of Elbridge G. Lapham and 15 Norwood V. Blodgett, 1871, Taft's Warner Miller, Taft's Senate Election Senate Election Cases, continued by Cases, continued by Furber, p. 601 ; Furber, pp. 293-299. Hartu. Gilbert, ibid., p. 282. 18 Report of the Committee on Priv- ^o Louisiana Cases, Spofford v. Kel- ileges and Elections, presented by logg, Taft's Senate Election Cases, Senator Mitchell of Oregon, in Clag- continued by Furber, pp. 471, 490; gett 1). Dubois. Taft's Senate Elec- • Corbin d. Butler, ibid., pp. 541, 543. tion Cases, continued by Furber, p. 21 Case of Jared "W. Williams, Taft's 691. Senate Election Cases,, continued by " Case of Archibald Dickson of Furber, pp. 23, 25. But see Cases of Kentucky, in 1852, Taft's Senate Elec- Gohlston and Claiborne and Prentice tion Cases, continued by Furber, pp. and Ward in the House of Bepresen- 13-15. See supra, § 71. tatives in the 25th Congress, 1 Bart., 9 ; 18 Keport of the Committee on supra, § 70 ; Lane and McCarty v. Privileges and Elections, presented Fitch and Bright, ibid., p. 148; Spof- by Senator Mitchell of Oregon, in ford v. Kellogg, ibid., 471, 493; case Claggett V. Dubois. Taft's Senate of George E. Spencer, ibid., 515, 537. 480 THE SENATE. [chap. XI. seat for bribery or corruption in the course of his election, it must be shown that he was personally guilty of corrupt practices, or that the corruption took place with his sanction, or that a suffi- cient number of votes to affect the result was corruptly changed.^ It was the opinion of the Senate Committee on Privileges and Elections that the payment by one candidate to another of money as a consideration for the latter's withdrawal from a contest be- fore the legislature, is such corruption as will constitute a ground for setting aside the election.^ Whether bribery in a party cau- cus is a sufficient cause for holding an election void has been the subject of discussion, but has not been decided.^ The fact that the choice of a senator was determined in the State legislature by the vote of the successful candidate, was held not to avoid the election.® Where two bodies, each of which claims to be the State legis- lature, elect senators, the Senate will usually recognize the elec- 22 Case of Henry B. Payne, Taft's Senate Election Cases, continued by Eurber, p. 604. See also case of Powel Clayton, ibid., p. 348; cases of Pomeroy, ibid., pp. 330 and 340; case of George E. Spencer, ibid., 515; case of La Payette Grover, ibid., 565 ; case of John J. Ingalls, ibid., 596. 23 Case of Alexander Caldwell, Taft's Senate Election Cases, continued by Purber, pp. 330, 334 : " Looking at the transaction in its real character, it was a sale upon the part of Mr. Carney of the votes of his personal and polit- ioal friends in the legislature, to be delivered by him to Mr. Caldwell as far as possible. If it were legitimate for Mr. Caldwell to buy oft Mr. Carney as a candidate, it was equally legiti- mate to buy oft all the other candi- dates and have the field to himself, by which he would exert a quasi-coer- cion upon the members of the legisla- ture to vote for him, having no other candidate to vote for. It was an at- tempt to buy the votes of members of the legislature, not by bribing them directly, but through the manipula- tions of another. The purchase- money was not to go to them but to Mr. Carney, who was to sell and de- liver them without their knowledge." "Buying off opposing candidates, and in that way securing the votes of all or the most of their friends, is in effect buying the office. It recognizes can- didacy for office as a merchantable commodity, a thing having a money value, and is as destructive to the purity and freedom of elections as the direct bribery of members of the leg- islature." A minority of the Com- mittee were of the opinion that the offense was one which should be pun- ished by expulsion. The majority recommended the adoption of a reso- lution that Caldwell was not duly and legally elected. A further resolution for Caldwell's expulsion was also of- fered. Pending the consideration of the subject, he resigned. 21 Case of Henry B. Payne, Taft's Senate Election Oases, continued by Furber, p. 619. 25 Case of Ephram Bateman, ibid., p. 80. § 77.] SENATORIAL ELECTIONS. 481 tion by the one recognized by the other State authorities, but it has exercised the power to examine into the facts and de- termine which of the two contained a majority of members law- fully elected, although the other may have been organized with technical regularity. Thus, where a senator had been elected by a legislature, of which members had previously extended their own terms in alleged violation of the Constitution, there having been no election of their successors, and it appeared that bills passed by the body thus composed were recognized as laws of the State ; the Senate seated a member thus elected, although a subsequent legislature had passed an act declaring the election void and chosen another.^ Where a body claiming to be a State senate had been recognized by the governor and the lower house, the Senate of the United States refused to examine the question whether it had lawfully obtained a majority in favor of the per- son chosen by admitting two persons who had not, and ex- cluding two who had been, elected members.^ But where two bodies each claimed to constitute the legislature of the State, and each elected a senator, the Senate has examined into the question as to which of them was composed of persons duly elected to the same.^^ In one case, it refused to recognize that organized by a majority of those holding regular certificates of election, when it considered that a majority of the other had been in fact legally elected, and the latter had been subsequently recognized as the legislature by the governor .^^ The report said : — "We are called upon to choose between the form and the substance, the fiction and the fact ; and, considering the importance of the election of a Senator, in the opinion of your committee the Senate would not be justified in overriding the will of the people as expressed at the bal- 28 Potter V. Kobbins, Taft'a Senate Corbin v. Butler, A. D. 1877, ibid., p. Election Cases, continued by Furber, 541. p. 83. But see the strong minority ^s Sykes v. Spencer, A. D. 1874, report by Silas Wright; Whiteley and ibid., p. 515 ; Louisiana Cases, A.D. ParrowD. Hill and Miller, ibid., p. 264 ; 1873, ibid., p. 385; Corbin u. Butler, Lane and MoCarty ■». Pitch and Bright, A. D. 1877, ibid., p. 541; Clark and ibid.,p.l48; Louisiana Cases, Spofford Maginnis r. Sanders and Power, A. D. V. Kellogg, ibid., p. 471. 1890, ibid., p. 631. 2' Case of David Turpie of Indiana, ^9 Sykes v. Spencer, A. D. 1874, A. D. 1887, ibid., p. 623. But see ibid., p. 515. 482 THE SENATE. [chap. xr. lot box, out of deference to certificates issued erroneously to persons who were not elected." '"' The authority of this has been shaken by a later decision.^^ Where States were in insurrection and occupied by military force, the Senate determined that there could be no free choice, and that, consequently, the action by their respective legislatures in electing senators was void.^^ During the Reconstruction, both houses of Congress refused to admit senators from States which had been in insurrection and which had not ratified the Fourteenth Amendment.^ Where senators and representatives were elected before the ex- pulsion of their predecessors,^ before the admission of a Territory into the Union as a State, and before the readmission of a State into the Union after Reconstruction, it was held that the admission related back so as to ratify their election.^ A senator thus elected was not, however, admitted to the Senate after the passage of an enabling act but before the admission of the State .^^ It has been held that an election of a territorial delegate before the organiza- tion of the territory is void.^' ™ Taft's Senate Election Cases, con- tinued by Furber, p. 521. See a lar- ger quotation from this report, infra, Ch. XVI. 31 Clark and Maginnis v. Sanders and Power, A. D. 1890, ibid., p. 631, 637 : " The report on Sykes v. Spencer, decided by the Senate in ,1873, is re- lied upon as supporting an opinion contrary to that which we have stated. If so, we dissent from it. But it is to be remarked that in that case, which was upon an election held less than seven years after the close of the war, the doctrine of the report is not re- lied upon in the debate. It is further to be observed that that case is to be distinguished from this by the fact that there it was conceded that the persons who had not certificates were duly elected." 82 Cases of Fishback, Baxter and Snow, ibid., p. 202; cases of Cutler, Smith and Hahn, ibid., p. 210 ; cases of Segar and Underwood, ibid., p. 214; supra, § 38. 82 Jones and Garland v. McDonald and Bice, ibid., p. 244; Marvin v. Os- born, ibid., p. 245; Whiteley and Far- row 11. Hill and Miller, ibid., p. 247; Hart 11. Gilbert, ibid., p. 282; eupra, §38. 8* Case of Willey and Carlile, A. D. 1861, ibid., p. 177. 8^ Case of Phelps and Cavanaugh of Minnesota, 1 Bart., 248; Hart i>. Gil- bert, Taft's Senate Election Cases, continued by Furber, p. 282; Rey- nolds v: Hamilton, ibid., p. 285; McCrary on Elections, 3d ed., § 210. Contra. But see case of Blount and Cocke, Taft's Senate Election Cases, continued by Furber, p. 77. 86 Case of James Shields, Taft's Senate Election Cases, continued by Furber, p. 171. 8' Case of J. S. Casement, 2 Bart., 516. § 78.] CLASSIFICATION OP THE SENATE. 483 The ineligibility of the person who receives a majority of the votes does not give the election to the candidate with the next highest number. § 78. Classification of the Senate. The Constitution directs a classification of the Senate as fol- lows : — " Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as nearly 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 expira- tion of the fourth Year, and of the third Class at the expiration of the sixth Year, so that one third may be chosen every second Year." ^ On the original organization of the Senate, May 14th, 1789, a committee was appointed to consider and report a mode of carry- ing into effect this constitutional provision. In accordance with their report, the senators then sitting were arbitrarily divided into three classes, the first including six members, and the second and third, seven each. Three papers, numbered 1, 2 and 3 re- spectively, were rolled up and put into a box by the secretary ; and then one senator from each class drew a number. The class which drew number 1 vacated their seats at the expiration of the second, the class which drew number 2 vacated their seats at the end of the fourth, and those who drew number 3 at the end of the sixth year. This plan, on account of the number then pres- ent at the Senate, left the first class, who vacated their seats at the expiration of the second year, one less in number than each of the other two. To prevent any unnecessary inequality in the classes, when the senators from New York appeared, two lots, one num- bered 3, that of the small class, and one blank, were placed in the box. After each senator had drawn a lot, the one who drew number 3 was placed in the small class; and the other drew again from the box containing numbers 1 and 2, taking his place in the class whose number he drew. When the senators from North Carolina appeared, there were then two classes of equal numbers, and one with a number in excess of each. The num- bers of the equal classes were put in the box. Then each senator § 78. 1 Constitution, Article I, Section 3. See supra, § 76, over notes 19-21. 484 THE SENATE. [CHAP. XI. drew one and was classed according to the number lie drew. The classes were then equal in number. Accordingly, when the sena- tors from Rhode Island appeared, papers numbered 1, 2, and 3 re- spectively, were again placed in the box from which each senator drew one. The proceedings continued according to these succes- sive methods until the admission of the senators from Washington, North Dakota and South Dakota at the same time. The same three numbers were then placed in the box, and drawn by one sen- ator from each of the new States. The secretary then placed in the ballot-box two papers of equal size, numbered 1 and 3 re- spectively. Each of the senators from the State which had thus drawn number 1 drew out a paper and was assigned in accord- ance with the number he drew. The secretary then placed in the ballot-box numbers 1, 2, and 3, and each of the senators from the State which had drawn number 2 drew a lot from the box. They were then assigned in accordance with the number drawn by each; and the remaining lot with a blank was again placed in the box and the senators from the remaining State drew from them. He who drew a number was assigned to the class repre- sented by it ; and he who drew a blank drew again from the box which then contained the other two numbers, and was assigned according to the number drawn. When the senators from Idaho, Montana, and Wyoming were admitted at the same time, the same proceedings took place.^ A custom has been thus established which will be followed in the future. § 79. Filling Vacancies in the Senate. The Constitution provides that "if Vacancies happen by Resig- nation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies."! The meaning of the phrase, "happen during the Re- cess of the Legislature," is a question which has been the subject of conflicting precedents and is not yet definitely settled. Is the expiration of the term of a senator, which is not filled by the 2 Furber, Precedents Kelating to § 79. i Constitution, Article I, See- the Privileges of the Senate, pp. 190- tion 3. 203. §79.] VACANCIES. 485 legislature, either througli its failure to meet after the term ex- pires, or by its adjournment without an election, the happening of a vacancy which authorizes an appointment by the State execu- tive ? In other words, is the word " happen " in this connection synonymous with the word " occur," or dpes it mean the occur- rence of an event which cannot be foreseen and so provided for by the calling of the legislature in extraordinary session, if that be necessary, to fill the vacancy? In support of the more restricted meaning of the word " hap- pen," its advocates rely upon the ordinary «meaning of the word, which, it must be admitted, suggests that the event was unex- pected ; ^ upon the surrounding words in that clause of the Con- 2 "But it is said that the word 'happen' does not necessarily refer to a casualty or an unexpected event ; that in our language we make use of that word indifferently for ' occur ' ' or come to pass.' It is respectfully sub- mitted that this is not true. An event that is provided for by law to take place at stated periods known to all men is not correctly spoken of by people of ordinary education as ' hap- pening,' because there is no element of uncertainty in it. The examples given of statutes providing for certain things to be done on a certain day of a month ' if it happen not on a Sun- day,' etc., will not bear out the asser- tion. It is true that it might be known to all men who are astronomers, and would sit down and make calculations that a certain date in a certain year would fall on Sunday; but the great masses of mankind do not think of it in that way. They speak as though the thing were absolutely uncertain. But we do not say, for instance, that any natural event, which all men know and look for, did ' happen ' to come at the time on which it was expected; we do not say that the sun ' happened ' to rise on a certain day; we do not say that water 'hap- pens ' to flow down a descent by the force of gravity. That is a known law of nature. . We do not say that Christmas ' happens ' to come on the 25th of December; by the universal consent of Christendom that event comes on that day without peradven- ture. "We do not say that a note ' happens ' to fall due on the day which is specified in the instrument, though it no doubt is often said that it ' happened ' to fall due when the maker did not have the money to pay it. We do not say that Congress happened to meet on the first Monday in December, that is the law. We do not say that a Senator's term in this body happened to expire on the 3d day of March, for that is the law written in the Constitution. We do say, per contra, that Senator A. B. ' happened ' to die before his term had expired ; we do say that Senator C. D. ' happened * to resign before his term had expired ; we do say that Senator E. F. ' happened ' to become disquali- fied by accepting an incompatible office or to be expelled before his term had expired, and so on. In the com- mon acceptation of mankind these phrases are used and understood with- out controversy. So obvious is their meaning that those who contend for the power of the governor to appoint 486 THE SENATE. [chap. XI. stitution, " by resignation, or otherwise," the last two words being claimed to be in accordance with a well-known maxim of interpre- tation of the common law, restricted in their meaning to events of a like character with resignation ^ — were they not, the words "by resignation, or otherwise," would be mere surplusage and would not have been inserted ; * and finally by the theory of our form of government, which favors the emanation of political power, as directly as may be, from the people, and makes it seem unwise, in case of doubt, to strengthen the executive.^ The advocates of tte view that a broader power exists in the executive, urge that the most important end required by pubHc policy and designed by this and other provisions of the Constitu- tion^ is to keep the Senate always full, and to prevent any State for any vacancy whatever occurring in the recess of the legislature of a State, are compelled to resort to the argu- ment ab inconvenienti." (Minority Re- port in Lee Mantle's Case.) 8 Ham V. Missouri, 18 Howard, 126 ; Tennioks v. Schwaltz, L. E. 3 C. P., 315 ; Ashhury Ky. & C. Co. v. Kiche, L. R. 7 H. L., 653 ; Countess of Kothes Kirkaldy Water Works Commissioners, V. L. E., 7 Appeal Cases, 694, 706. » " In applying these definitions and legal rules to the clause we are dis- cussing, if the words ' or otherwise ' are not limited to vacancies occurring in a manner similar to a 'resigna- tion ' of a Senator, it would seem im- possible to make an idea plain by the use of language. It can not refer to a vacancy occurring by the regular expiration of a term. That sugges- tion is excluded by the previous men- tion in special words of those terms, provision in like special words being made for filling them ; therefore, the next clause is independent and en- tirely disconnected from that preced- ing it inasmuch as it refers and must refer to the filling of a vacancy hap- pening otherwise than by the expira- tion of a regular term. The enlarging or general words used by the authori- ties must relate to the same kind of things to which the special words relate ; they must be ejusdem generis, as the law says. Now the only pos- sible kindred between the accidental and the regular termination of sena- torial seat is that they are both iia- cancieSj'butth.ey&Teiiotejusdemgeneris, in that the one is a vacancy created by law and the other is a vacancy created by accident, and are entirely different in their legal effects. The one is a basis for the exercise of executive power, the other is not." (Minority Eeport in Lee Mantle's Case.) ^ "A Senator under an executive appointment, may or may not repre- sent the political views of his State. He may be the mere personal favorite of the governor. The Senate, as far as practicable, should be made to repre- sent its constitutional constituency, and in this respect should preserve the republican feature of our Union." (Minority Eeport of Committee on Privileges and Elections adopted by the Senate, in Phelps Case, Taft's Sen- ate Election Cases, continued by Fur- ber, p. 20.) ^ Citing Article V, which provides that "no State, without its consent. § 79.] VACANCIES. 487 from being deprired at any time of its full representation in the same. They rely upon the practical construction of the subse- quent similar language that " the President shall have Power to fill up all Vacancies that may hap- pen during the Recess of the Senate by granting Commissions which shall expire at the end of the next Session." ' Under this, the power of the President to fill vacancies caused by the expiration of official terms during the recess of the Senate has been recognized by statute ; ^ has been extended in practice, under the sanction of nine Attorneys-General,^ including Eoger B. Taney,^" afterwards Chief-Justice of the United States, to cases where the Senate had adjourned without acting on a nomi- nation to fill a vacancy which had occurred during its session ; and is sanctioned by the decisions of the Supreme Court of Indiana under a similar constitutional provision concerning the powers of the governor.^^ It appears by the reports of the de- bates of the Federal Convention that the words, " by resignation, or otherwise," were not contained in the first draft of the Consti- tion, as reported by the Committee on Detail,^ and were subse- quently inserted upon the motion of Madison " in order to prevent doubts whether resignations could be made by senators." ^^ " We hear much of the word ' otherwise.' If Mr. Madison by propos- ing, or the Convention by adopting, the words ' resignation, or otherwise,' had meant to classify a series of cases like resignation, why would not Mr. Madison, eminent in his knowledge of the English language and clear in its expression, have said ' like- wise ' ? "1* The latest precedent was the Montana case of Lee shall be deprived of its equal Suffrage ana, 17. See also Gormley v. Taylor, in the Senate." i 44 Ga., 76; Walsh v. Commonwealth, ' Constitution, Article II, Section 2. 7 Weekly Notes (Pa. S. C), 21. 8 V. S. Eev. St., § 1769. i^ Madison's Papers, Elliot's De- ' Opinions of Attorneys-General, bates, 2d ed., vol. v, p. 377. vol.ii, p. 525;lbid.,vol. i, p. 631; ibid., " ibid., p. 396. Sitpm, § 76, over vol. iii, p. 673; ibid., vol. iv, p. 523; note 25. ibid., vol. vii, p. 186 ; ibid., vol. x, p. " Senator George F. Edmunds of 356; ibid., vol. xii, pp. 32, 455; ibid., Vermont, in the Debate on Blair's vol. xvi, p. 522. Case, Congressional Eecord, vol. xvi, 1" Ibid., vol. ii, p. 525. Part I, p. 23 ; Taft's Senate Election 11 State ex rel. Yancey v. Hyde, 121 Cases, continued by Furber, p. 46. Indiana, 20; State v. Gorby, 122 Indi- 488 THE SENATE. [chap. XI. Mantle, decided August 23d, 1893, when the Senate, by a vote of thirty-five to thirty, refused to recognize an appointment by the governor, to fill a vacancy caused by the expiration of a term, made after the adjournment of the legislature, which met after the term had expired and failed to elect a senator.^^ This decision overruled the majority report of the Committee on Privileges and Elections.i^ The decisions are so conflicting that the question is still open. 15 See the New York World of Au- gust 24, 1893. A motion to reconsider was defeated on August 28, by 28 yeas to 31 nays. This was followed in one or two other cases at the same session. 18 At that time, the Senate was engaged in a prolonged contest over the repeal of that part of the Sherman Act which compelled monthly pur- chases of silver ; and the persons who had been appointed senators would have added to the strength of the minority. The previous oases upon the subject were as follows: In the case of Kensey Johns of Delaware, in 1794, it was resolved by a vote of 20 to 7 that where a session of the legis- lature had intervened between the resignation of a senator and the ap- pointment by the governor of Mr. Johns as his successor, the appoint- ment was invalid (Taft's Senate Elec- tion Cases, continued by Turber, pp. 1, 2). In the case of Uriah Tracy of Conneotiout, in 1801, the Senate, by a party vote of 13 to 10, admitted Tracy, who had been appointed by the gover- nor during a recess of the legislature to fill a vacancy caused by the expira- tion of his own previous term (ibid., p. 3). In the case of Samuel Smith of Maryland, in 1809, Mr. Smith was admitted to the Senate under similar circumstances (Ibid., p. 4). In 1809, Senator Joseph Anderson of Tennessee, and in 1817, Senator John Williams of the same State, were respectively appointed by the governor of that State before the expiration of their terms to fill the anticipated vacancies until the legis- lature should supply them. They took their seats without objection or discussion (ibid., p. 6). In the case of James Lanman of Connecti- cut, in 1825, the Senate refused to admit Mr. Lanman, who had been appointed by the governor previous to the expiration of the term of his successor to fill the vacancy thus anticipated until the legislature which met a few months later should supply it. The vote was 23 to 18 (ibid., pp. 5, 6). Whether the ground of the exclusion was that no vacancy existed, or that the executive could not supply a vacancy before it happened, has been disputed. (Compare the argu- ment of Senator Vest of Missouri in Blair's Case, ibid., 37-39, with the argument of Senator Hoar in the same case, ibid., 41-42, and the minority report of the Committee on Privileges and Elections which was approved by the Senate in Bell's Case, ibid., pp. 31- 32. ) In the case of Ambrose H. Sevier of Arkansas, in 1837, the duration of the term of Sevier, after his election, had been determined by lot and ex- pired within a less time than six years. The governor, before its ex- piration, appointed Sevier senator to fill the anticipated vacancy until the legislature could supply it. The Committee on Privileges and Elec- tions approved the decision in Lan- man's case, stating: "This decision §79.] VACANCIES. 489 It seems that where the duration of the term of a senator is determined by lot, but is limited to a less period than six years, seems to have been generally ac- quiesced in since that time ; nor is it intended by the committee to call its correctness in question. The prin- ciple asserted in that case is that the legislature of a State, by making elec- tions themselves, shall provide for all vacancies which must occur at stated and known periods; and that the expiration of a regular term of service is not such a contingency as is embraced in the second section of the first article of the Constitution. The case now under consideration is wholly different in principle. The time when Mr. Sevier was to go out of ofSce under his election made by the legislature of Arkansas was deci- ded by lot, agreeably to the provisions of the Constitution on that subject. After the decision thus made, the legislature of Arkansas, not being in session, could not supply the vacancy ; and the case, in the opinion of the committee, comes fairly within the provision of the Constitution con- tained in the third section of the first article, which declares, 'and if vacancies happen by resignation or otherwise during the recess of the legislature of any State, the executive thereof may make temporary appoint- ments until the next meeting of the legislature, which shall then fill such vacancies.' The committee are of opinion that Mr. Sevier is entitled to his seat under the executive appoint- ment of the 17th of January, 1837." The report of the committee was sus- tained by a vote of 26 to 19, Webster being in the minority (ibid., pp. 7-9). In the case of Charles H. Bell of New Hampshire, in 1879, upon the expira- tion of the senatorial term, two legis- latures had been elected. The Senate had adopted the report of the Com- mittee on Privileges and Elections that the legislature last elected, but the term of which had not yet begun, was entitled to elect the new senator. The governor appointed Mr. Bell to fill the vacancy between the expiration of his predecessor's term and the supply of the same by the new legis- lature after its organization. The Senate by a vote of 35 to 28, which was not divided upon party lines, rejected the report of its Committee on Privi- leges and Elections and admitted Mr. Bell to the seat (ibid., pp. 26-35). In the case of Henry W. Blair of New Hampshire, in 1879, a similar ruling was made by a vote of 36 to 20 (ibid., p. 36). In the case of Horace Chilton of Texas, in 1891, the gover- nor had appointed Mr. Chilton to fill a vacancy occasioned by the resigna^ tion of a senator before the period when the resignation took effect. The question was raised whether the governor had the power to appoint Mr. Chilton before the resignation took effect. The Senate adopted the report of the Committee on Privileges and Elections, and admitted Mr. Chilton (ibid., pp. 48-51). The report cited the case of Kobert M. Charlton of Georgia, who was thus appointed by the governor. His appointment took effect from and after the date for which his predecessor had resigned (Senate Journal, 1st Session, 32d Congress, p. 468). If this point, con- sequently, was decided in Lanman's case. It was then formally over- ruled. The matter rested there until 1893, when the decision was made in the Montana case of Lee Mantle, which was followed at the same session in two other cases arising from similar appointments by the government of "Washington. 490 THE SENATE. [CHAP. XI. its expiration is the happening of a vacancy which will authorize an appointment by the State executive.^" It has been held by the Senate that an executive of the State may appoint a senator to fill an anticipated vacancy before it occurs.^^ The ground of the decision is stated as follows : — ' ' The important consideration is that it must have been the purpose of the framers of the Constitution, as it is clearly for the public interest, that the office as far as possible should always be filled. This consid- eration applies with peculiar force to the office of Senator. We should be very unwilling to establish a construction of the Constitution which would make it certain that in no case of the resignation of a Senator, however necessary that resignation might be, there should be a succes- sion without a considerable interval. This would bear with peculiar hardship upon States remote from the seat of government, and might determine the policy of the country in great emergencies and in matters peculiarly affecting particular States, when such States were but par- tially represented, or possibly not represented at all. ... It has been suggested that if this construction be established it will be in the power of the governor of the State to provide by appointment for the filling of future vacancies long before they occur, and, therefore, the will of the people of the State, as it exists at or near the time of filling the vacancy, fail of being carried into effect. But the instances must necessarily be very rare indeed where the vacancy can be anticipated beforehand under circumstances which will create such temptation to the executive. Against that, as against many other evils which are possible under a popular government, as under other governments, the protection in general must be in the character and integrity of the persons clothed with high public office." " Where a senator has been appointed by the executive to fill a vacancy and the legislature at its next session adjourns finally without an election, his term thereupon expires.^" The adjourn- ment of the legislature until the date when its existence termi- nates is equivalent to a final adjournment within the meaning of this rule.2^ The term of an appointed senator expires upon 17 Sevier's Case, Taft's Senate Eleo- mont, In 1854, Taft's Senate Election tion Cases, continued by Furber, pp. Cases, continued by Furber, pp. 16, 7-9, supra, note 16. 21 ; case of Jared W. Williams of New 18 Case of Uriah Tracy, ibid., p. 3. Hampshire, in 1854, Ibid., pp. 23, 25. " HoraceChilton'sCase, ibid.,p. 51. "i Case of Jared W. "Williams of "0 Case of Samuel S. Phelps of Ver- New Hampshire, in 1854, pp. 23-25. §80.] GENERAL OBSERVATIONS. 491 the presentment to the Senate of the credentials of his successor, from which the latter's acceptance is implied, even though he does not attend ; provided, of course, that he has not resigned or ac- cepted a disqualifying or inconsistent office.^ § 80. General Observations upon the Senate. During its earlier years the Senate of the United States acted as if it were an executive council, a part of the members of which considered themselves to be ambassadors, rather than, as now, prin- cipally a legislative body.^ Its membership was originally only twenty-two,^ a number not ill-suited for such functions. It fol- 22 Case of Eobert C. "Winthrop of Massachusetts, in 1851, ibid., pp. 10- 12. § 80. 1 "At the origin of the Govern- ment, the Senate seemed to be re- garded chiefly as an executive coun- cil. The President often visited the Chamber and conferred personally with this body ; most of its business was transacted with closed doors and it took comparatively little part in the legislative debates. The rising and vigorous intellects of the country sought the arena of the House of Representatives as the appropriate theater for the display of their powers. Mr. Madison observed, on some occa- sion, that being a young man, and desiring to increase his reputation, he could not afford to enter the Senate ; and it will be remembered, that, so late as 1812, the great debates which preceded the war and aroused the country to the assertion of its rights, took place in the other branch of Congress. To such an extent was the idea of seclusion carried, that, when this Chamber," the room now occupied by the Supreme Court, " was completed, no seats were prepared for the accommodation of the public; and it was not tiU many years afterwards that the semi-circular gallery was erected which admits the people to be witnesses of your proceedings. But now the Senate, besides its peculiar relations to the executive depart- ment of the government, assumes its full share of duty as an equal branch of the legislature; indeed from the limited number of its members, and for other obvious reasons, the most important questions, especially of foreign policy, are apt to pass first under discussion in this body, and to be a member of it is justly regarded as one of the highest honors which can be conferred on an American statesman." (Address of Vice-Presi- dent Breckinridge before leaving the old Senate Chamber for the new, January 4th, 1859, Senate Journal, 35th Congress, 2d Session, p. 96 ; Con- gressional Globe, 1858-1859, Part I, p. 203 ; Furber, Precedents relating to Privileges of the Senate, p. 3. See also an article by James C. Welling, in the National Intelligencer, October 30, 1858, quoted in Lieber's Civil Liberty, ch. xiii, appendix; Boutmy, Etudes de Droit Constitutionnel, pp. 118-122. The last is a small work which shows great learning and acute- ness.) 2 Only eleven States were at first represented; North Carolina and Rhode Island ratifying subsequently {supra, § 29). 492 THE SENATE. [CHAP. XI. lowed in many respects the practice of the colonial councils. Its sessions were held in secret until February 20th, 1794, except on the discussion of the contested election of Albert Gallatin, which began nine days before ; ^ and its sessions for the consideration of executive business are still secret except upon special occasions.* During its early sessions the President and cabinet ministers fre- quently consulted with it in person,^ and the rules still provide for the case of a visit from the chief executive.^ It created no standing committees until 1816.'' Since then, however, its func- tions have been mainly legislative, although it has guarded with great jealousy its executive prerogatives. In the discharge of these it has developed a corporate spirit which tends to make its mem|)ers stand together irrespective of party lines to resist any attacks upon what are considered to be the rights of each. A practice has thus arisen which is known as senatorial courtesy, the cardinal principles of which are that no nomination shall be confirmed against the wishes of both the sen- ators from the State where the candidate resides, provided that they are of the same political faith as the executive and that when a senator or a former senator is nominated for an office he shall be immediately confirmed without a reference to any committee. The latter rule is almost invariably observed. The former, the origin of which may be found in Washington's first administrar tion,^ has been the subject of many contests with the executive, 3 Furber, Precedents relating to secret message (Benton, Thirty Years Privileges of the Senate, pp. 3-5. in the Senate, vol. ii, p. 675). * Senate Kule XXXVI. « Senate Rule XXXVI. 6 See Maclay, Sketches of Debate '"Before that time the custom in the First Senate of the United States, had been to refer to select com- 2d ed., p. 122; Furber, Precedents of mittees different parts of the Presi- Privileges of the Senate, p. 3. In 1813 dent's message, and these were praeti- the Senate sought to revive the prac- cally standing committees. Three tice by asking President Madison to committees existed before 1816 : ' The attend and consult with them upon Committee on Engrossed Bills, created foreign affairs: but he declined in 1806, the Committee on Enrolled (Wilson, Congressional Government, Bills, which was a Joint committee, p. 234, note). In 1846, when Presi- and the Committee to Audit and Con- dent Polk asked the advice of the trol the Contingent Expensed, created Senate concerning a proposed treaty in 1807 " (Furber, Precedents relating with Great Britain relative to the to Privileges of the Senate, p. 317). Oregon boundary, he did so by a « The nomination of Benjamin § 80.] SENATOEIAL COURTESY. 493 one of which was so bitter that it caused President Garfield to fall by the hand of an assassin ; but in the main the Senate has tri- umphed. One part of it is firmly established. The Senate has never confirmed the nomination of a postmaster against the wiU of the senator who lived where the office was situated. It insists that each of its members shall select the man who delivers to him his mail.^ The Senate has established the position that it is a continuous body always in existence, which does not need a new organization every two years nor the recommencement then of all business, as does the House of Representatives.^" So the two-thirds who hold over exercise the exclusive right to pass upon the credentials and qualifications and to judge of the elections of the new mem- bers, and disputes concerning what constitutes a prima facie claim to a seat are of little importance.^^ Moreover, all proceedings upon bills there introduced continue without abatement till their final disposition, and do not lapse by the expiration of a Con- gress.^ This permanency of the Senate and the length of its members' terms have given it a dignity possessed by no other legislative body now in existence. It is still able to transact business with- out the application of the previous question, or closure, as it is Fishboume to the post of naval ofScer 1841, especially the remarks of Sena- of the port of Savannah was rejected tors Buchanan, Allen, Bayard and at the first session of the Senate, Silas Wright (CJongressional Globe, vol. August 4, 1789, " simply because the ix, pp. 236-256). Georgia senators preferred another " ii Ibid., Taft's Senate Election (Benton's Abridgment, vol. 1, pp. 16- Cases, continued by Furber. In Indi- 17 and notes to p. 17). Washington ana, where one-half of the Senators protested in a message nominating hold over and two-thirds constitute a another to the same ofSee (ibid., p. 17). quorum, and New Jersey, where two- 9 The last illustration of this prac- thirds hold over and the provisions tice was the concession by President of the State which affect the point Cleveland to Senator Hill of the selec- are similar to those in the Federal tion of the postmaster at Albany, Constitution, it seems that a different New York, in 1895. By insisting upon rule prevails. (See the opinion of this principle Charles Sumner secured Judge Niblack In Kobertson v. The the appointment of the historian State ex rel. Smith, 109 Ind., 79, 123 ; Palfrey to the Boston post-oface by State v. Eogers, 56 N. J. Law, 480, Lincoln. 529-530.) w See the debate in the Senate on i" Ibid, the Eemoval of the Public Printer, in 494 THE SENATE. [CHAP. XI. termed in Europe, and although since the administration of Tyler, when Clay attempted to change the rules so as to enable a major- ity to cut off debate,^^ numerous efforts in that direction have been made, all hitherto have failed.^* The reports of its com- mittees, especially those on the Judiciary and on Privileges and Elections, contain discussions of questions of constitutional, statu- tory and common law which are excelled only by the opinions of the Supreme Court of the United States. There is on the whole a stability and consistency in its decisions upon disputed ques- tions involving a construction of the Constitution superior to those not only of the House but of the highest courts of almost all the States ; while upon the trial of impeachments it has been proved that a controlling part of its members are able to divest themselves of partisanship and act judicially, although the poh- tical factions to which they belong have a vital interest in the result.!* Although there has been no need of its interposition to protect the small from any encroachment by the larger States, until the Civil War the Senate was more conspicuously the guardian of State rights in general. Their advocates maintained the position that the body was an assembly of ambassadors from sovereign States. During Washington's administration, North Carolina directed her senators to execute a deed ceding land to the United States ;!^ Senator Tazewell of Virginia declined Jackson's offer of a place in the cabinet, and said : — ' ' Having been elected a senator, I would as soon think of taking a place under George IV if I was sent as minister to his court, as I -would to take a place in the cabinet." " Insistence has frequently been made upon the right of State legislatures to instruct their senators in Congress.^^ In 1808 18 Benton, Thirty Years in the i' James A. Hamilton, Eeminis- Senate, vol. ii, pp. 249-257. cences, p. 90. " See Furber, Precedents Kelating " Boutmy, Etudes de Droit Consti- to Privileges of the Senate, pp. 217- tutionnel, pp. 119, 120. The belief in 230, and the proceedings in the sum- the right of instruction to a repre- mer of 1894. sentative by his constituents was very 15 Infra, § 90. common in the United States during 15 XJ. S. St. at L., vol. i, pp. 106- the eighteenth century. Members of 109. Congress under the Confederation §80.] rffSTEUCTIONS. 495 Jolm Quincy Adams resigned after voting for the embargo in opposition to the wishes of his constituents. A senator in 1828, after arguing against the Tariff of Abominations, said, "as the organ of the State of Kentucky he felt himself bound to surrender his individual opinion, and express the opinion of his State." ^^ John Tyler, in 1836, before he was President, resigned his place considered themselves bound by them. The Delaware delegates to the Fed- eral Convention were instructed on one point (Elliot's Debates, 2d ed., vol. v, p. 135) . Nearly all the members ot the State conventions of ratification were instructed, and the votes of some Vir- ginians in favor of ratification and in violation of their instructions has been the cause of much complaint as a breach of faith. The Lost Principle, by Barbarossa (Scott), pp. 161-163, App. II, pp. 159-164; Libby, Geo- graphical Distribution of Vote on the Federal Constitution, pp. 77, 87, 94. See also Worcester Magazine, vol. ii, p. 117 ; North American Review, vol. iv, p. 223, by J. G. Palfrey ; American Quarterly Review, vol. v, p. 41 ; So. Lit. Mess., vol. ii, pp. 405, 530, 623, 684; vol. iii, p. 39; Niles' Eeg., vol. xxviii, pp. 193, 200, 216 ; Democratic Eeview, vol. ix, p. 434. Hamilton in the New York Convention, Elliot's Debates, vol. ii, p. 252. In England the right seems to have been occa- sionally recognized, although it had long been disused in 1780, when Burke made his famous speech to the elec- tors of Bristol. A paper In Shaftes- bury's handwriting contains " Instruc- tions for Members of Parliament sum- moned for March 21, 1681, and to be held at Oxford." It begins: "Gentle- men — We have chosen you two our knights to represent this county," etc., and proceeds to inform them that they are expected (1) to insist " to the last" upon an Exclusion Bill; (2) to demand an adjustment of the king's prerogative of calling, proroguing and dissolving Parliament with the rights of the people to have annual Parlia- ment, and (3) to restore to the country "that liberty which we and our fore- fathers have enjoyed until the lastforty years, of being free from guards and mercenary soldiers " (Traill's Shaftes- bury, p. 173). In Europe the custom was very prevalent. "In the Dutch United Provinces the members of the States-General were mere delegates; and to such a length was the doctrine carried, that when any important question arose which had not been provided for in* their instructions, they had to refer back to their constit- uents, exactly as an ambassador does to the government from which he is accredited " (Mill, Representative Government, ch. xii). The cahiera of the members of the French National Assembly are well known (see Eg- sume gtneral, ou extrait des cahiers, pouvoirs, instructions, etc., remis par les divers Baillages, Seneohausees et pays d'Etats du Royaume, ^ leurs deputes ^ I'Assemblee des Etats-Gene- raux. Paris, 1789, vol. ii, p. 29). The Constitution established by the Span- ish Cortes of 1812 recognizes the pow- ers of attorney given to deputies by the electoral junta, and the insertion of special instructions in the same (Articles 380-382, Borgeaud, Etablis- sement et Revision des Constitutions II, Livre II, ch. II). 19 Benton, Thirty Years in The Senate, vol. i, p. 95. 496 THE SENATE. [CHAP. XI. in the Senate because the Virginia legislature had instructed him to vote in favor of the expunging resolution, which he could not conscientiously approve.^" These doctrines are now abandoned. The senators consider themselves as members of an ordinary legislative body. They pay no more attention to the instructions of State legislatures than do members of the House ; and in fact since their terms are longer they are more inclined to disobey them.^^ A survey of its position throughout the history of the United States shows that the Senate has maintained, almost without in- terruption, the respect oi the American people, and that it has vindicated the wisdom of its creation ; ^ while State senates are usually more despised than State houses of assembly. It has been shorn of but a single power, that to originate general appropria- tion bills, which the House has, by their continuous rejection when sent there, refused to permit it to exercise successfully, although the Senate has more than once recorded a protest assert ing its prerogative ; ^ but in practice, through its power of amend- ment, the loss is rather nominal than real.^ ^ Schurz, Clay, vol. 11, p. 199. years ago," In 1870. (Amerioan Corn- el The latest illustrations oi this monwealth. Part I, ch. xil, note, are the action of Senator Lamar of See also The Senate In the Light of Mississippi, in 1882, when he refused History, The Forum, November, 1893.) to vote for free silver though so re- The writer Is unable to observe that quested by his State legislature, and the Senate has fallen in public respect notwithstanding secured a reelection ; as much as the House and the State and the recent action of Senator legislatures since that time ; and he Stewart of Nevada, who, although attributes the decadence of all to the elected as a Bepublican, announced fact that of late years the country has that he had joined the Populist party been so fortunate as to have few po- without resigning his seat. The lltioal questions of sufficient gravity Kentucky house of representatives in to withdraw the ablest minds from 1894, passed a resolution instructing business enterprises and legal contro- their senators to vote against the nom- versies. ination of Wheeler H. Peckham for a =8 Furber, Precedents of Privileges place in the Supreme Court of the Uni- in the Senate, pp. 282-310. See The ted States (Park City Times, Bowling Conduct of Business in Congress, by Green, Ky., Feb. 1, 1894). Senator George F. Hoar, North Ameri- 22 Mr. Bryce says: "So far as a can Review, vol. cxxvlii, pp. 113, 115- stranger can judge, there is certainly 119 ; infra. less respect for the Senate collectively, 24 Senator Hoar believes that and for most of the senators Individ- through the House rule which, upon ually now than there was eighteen the report of a conference between §80.] GENERAL OBSEKVATIONS. 497 Secure in the confidence that the people who entrusted them with power will not mistrust their use of it, senators have been unmoved by the threats of the House to withhold the supplies, before which other second chambers have always quailed; and have only in a single instance yielded their judgment to such in- timidation.^ They have had more than one conflict with the executive concerning the prerogatives that they claimed, of which the first was at the opening of Washington's administration,^ and but one. President Jackson, has finally triumphed.^^ Their en- croachments upon the power of appointment to ofiice have sub- jected them to more criticism than any of their other actions ; ^^ but they have been in the main successful ; and though they have thus undoubtedly excluded a few who would have done good pub- lic service, and in minor cases have often compelled the appoint- the two bodies, allows to its consid- eration immediate precedence of all other business, and no debate, the Sen- ate has actually more influence upon appropriations than the House which originates them (ibid., pp. 118, 119). 25 When they permitted the pas- sage of the act of June 18, 1878 (20 St. at L., p. 145), in relation to the use of the army as a posse comitatus. See Cox, Three Decades of Federal Legislation, p. 630 ; infra, Ch. XVI, and supra, § 45. 26 Supra, note 8. President Grant paid more deference to this custom than perhaps any other executive. For a recent history of his sacrifice of a cabinet Officer, in order to obtain votes in support of the treaty for the annexation of San Domingo, see How Judge Hoar ceased to be Attorney- General, by Jacob D. C!ox. Atlantic Monthly for August, 1895, vol. Ixxvi, p. 162. In 1893 Senator Hoar said : "When I came into public life in 1869, the Senate claimed almost entire control of the executive function of appointment to office. Every senator, with hardly an exception, seemed to fancy that the national officers in his State were to be a band of political henchmen devoted to his personal fortunes. What was called ' the cour- tesy of the Senate ' was depended upon to enable a senator to dictate to the Executive all appointments and re- movals in his territory. That doc- trine has disappeared as completely as the locusts that infested Egypt in the time of the Pharaohs " (Cong. Record, 53d Congress, vol. xxv, p. 137, April 8, 1893). This was before the late conflict between the Senate and Presi- dent Cleveland. 27 In the expunging resolution which is discussed, infra, under the head of the Journal. 28 i< The executive department has been crippled ; and the influence and power of Congress, and especially of the Senate, have become far greater than they should be under the system of proportion and balance embodied in the Constitution. Despite Jackson's victory there is, to-day, far more dan- ger of undue encroachments on the part of the Senate than on that of the President" (Henry Cabot Lodge, Life of Webster, p. 230). 498 THE SENATE. [CHAP. XI. ment of unworthy candidates, in some notable instances they have saved the country from disgrace. The action of the Senate upon treaties has usually been conser- vative, has at times protected the interests of the United States, and has never caused serious mischief. In its legislative action it has fulfilled the hopes of its creators. There has been occa- sional impatience at its deliberations over measures of reform demanded by a large majority of the people, but upon the whole there has been a feeling that little harm has been done by the delay, while many noxious measures that have passed the House have been thus defeated, and upon reflection no attempts have been made at their resurrection.^^ In one respect alone is there any sign of a popular demand for a change in either the functions or the construction of the Senate. A movement is now on foot to secure a constitutional amendment transferring the election of senators from the State legislatures to the people ; and on account of the facilities for intrigue and bribery which are afforded by the present method it is not un- likely that such a change would be beneficial.^" But the Senate of the United States will probably endure as long as any second legislative chamber upon the earth.^i 23 As early as 1793 a non-importa- and Mitchell (Cong. Kecord, 1st Ses- tion bill passed the House and was sion, 52d Congress, pp. 76, 1267, 1270, defeated by the Senate (Morse, Jef- 3192-3198, 3202, 3204, 7032). On the ferson, p. 167). The defeat of the other side is the speech of Senator Force Bill is a recent instance. Hoar (53d Congress, ibid., vol. xxv, 3° An amendment to the Nebraska p. 137). constitution, adopted in 1875, ordains : ^i England's last prime minister, "The Legislature may provide that Eosebery, himself a member of the at the general election immediately House of Lords, has said that the preceding the expiration of a term of Senate is " the most powerful and a United States Senator from this efficient Second Chamber that exists " State, the electors may by ballot (Wilson, Congressional Government, express their preference for some p. 228). For discussions of the Senate, person for the office of United States see The Federalist, Numbers Ixii- Senator. The votes cast for such can- Ixvii ; Story on the Constitution, Book didates shall be canvassed and re- II, ch. x ; Wilson, Congressional Gov- turned in the same manner as for ernment, ch. iv; Bryce, American State ofBcers." For arguments in Commonwealth, Part I, ch. x-xii; favor of such an amendment see the Maine, Popular Government, Essay speeches of Senators Turpie, Palmer IV. CHAPTEE XIL THE PRESIDENCY AND OTHEE OFFICERS OF THE SENATE. § 81. Constitutional Provisions concerning the Presidency and Officers of the Senate. The Constitution ordains : — " 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 ehuse their other Officers, and also a President pro tem- pore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States." ^ § 82. History of the Provisions as to the Presidency and Offi- cers of the Senate. The presiding ofBeer of the House of Lords is the Lord Chan- cellor, who may or may not be a peer, who has no vote unless he has a seat there, and cannot enforce order, that power being vested in the house at large.^ In the New York Constitution of 1777, the president of the State senate was the lieutenant-governor, who was elected by the people in the same manner as the gover- nor, whom he succeeded in case of a vacancy .^ In the Federal Convention the Committee of Detail inserted in their report, without previous instructions, the section : — ' ' The Senate shall choose its own President and other officers ; " ' and another by which the president of the Senate was to fill a vacancy in the chief executive office until a new election, or, in the case of a disability, until its removal.* These provisions were § 81. 1 Constitution, Article I, Sec- " Madison Papers, Elliot's Debates, tion 3. 2d ed., vol. v, p. 377. § 82. 1 Poore's Charters and Consti- ^ ibid., p. 380. tutions, vol. ii, p. 1336. * Ibid., p. 401. 499 500 PEESIDENCY OP THE SENATE. [CHAP, XII. at first adopted without dissent. The election of the President by the legislature was then contemplated. The office of Vice- President was invented afterwards as a device which it was believed would secure a better choice in the election of a Presi- dent. The reasons for making him also president of the Senate were thus stated by Roger Sherman : — " If the Vice President were not to be president of the Senate, he would be without employment ; and some other member, by being made president, must be deprived of his vote, unless when an equal division of votes might happen in the Senate, which would be but iseldom." ^ § 83. Powers of the Vice-President over the Senate. The Senate has shown great jealousy of the Vice-President, and has limited his powers so far as was permitted by the Constitution. The powers to supervise the journal ^ and to appoint committees with which he was once invested have been taken from him.^ Calhoun, when Vice-President in 1826, at the time when John Randolph of Roanoke was abusing the license of debate by gross personal abuse, declared that in his opinion he had no power to call a senator to order for words spoken in debate.^ New rules were afterwards adopted, the construction' of which was doubtful as to this point, although in 1850, when the compromise of that year was under discussion and personal controversies not infre- 5 Madison Papers, Elliot's Debates, by which committees were appointed 5d ed., vol. v, p. 522. by the president pro tempore, or when § 83. 1 January 22, 1824, the Senate that office was vacant, by ballot. Dif- adopted the rule that " The presiding ferent rules were adopted from time officer of the Senate shall examine and to time, by some of which the Vice- correct the journals before they are President was authorized to make the read." This rule was rescinded April appointments. The present rule was 14, 1826 (Furber, Precedents Kelating finally adopted, which provides that to Privileges of the Senate, p. 103). unless otherwise ordered, the stand- 2 The committees were originally ing committees shall be appointed by elected by the Senate. December 9, ballot in the manner therein directed 1823, it was resolved that "all com- (Eule XXIV). It is customary, how- mittees shall be appointed by the pre- ever, to suspend the rule and appoint siding officer of this House, unless them by resolution (Furber, Prece- ordered otherwise by the Senate." dents Relating to Privileges of the April 15, 1826, this rule was rescinded. Senate, pp. 317, 335-341). December 4, 1828, a rule was adopted ^ Ibid., pp. 118, 119, 121. § 83.] POWERS OF THE VICE-PKESIDBNT. 501 quent, Fillmore expressed the opinion that they granted this power to him.* The present rules provide : — " If any Senator, in speaking or otherwise, transgress the rules of the Senate, the Presiding Officer shall, or any Senator may, call him to order ; and when any Senator shall he called to order he shall sit down and not proceed without leave of the Senate, which, if granted, shall be upon motion that he be allowed to proceed in order ; which motion shall be determined without debate." ° The Senate has always refused to permit the Vice-President to designate a senator to take his place during a temporary absence ; but has usually elected by unanimous consent the man whom he selected. ^ Otherwise the Vice-President or the President pro tempore of the Senate has all the powers usually exercised by presiding offi- cers at the time of the adoption of the Constitution ; including the right to recognize a senator who wishes to speak, and thus to give him the floor, and the right to put the question, so far as they are not limited by rules of the Senate which are in conformity with the Constitution. In 1894, when Lieutenant-Governor Sheehan had refused to put the question as ordered by a majority of the New York senate, that body held that he had thereby abdicated his position for the time, and the question was put by the leader of the majority. The New York Constitution of 1894, on account of these proceedings, ordains that the temporary president of the senate shall preside "in case of the absence or impeachment of the Lieutenant-Governor, or when he shall refuse to act as Presi- dent or shall act as Governor." '^ The senator who thus put the question was chosen by the people to the position of Lieutenant-Governor that same year. The Vice-President may give the casting vote upon the decision of a contested election to the Senate.^ The office of Vice-President, with the mode of his election and the proceedings upon his succession to the presidency, will be dis- cussed later. * Ibid., pp. 120-122. ' Art. Ill, Sec. 10. May, Law of 6 Kule XIX. Parliament, 10th ed., p. 186. 6 Furber, Precedents Kelating to ^ Louisiana Cases, Spofeord v. Kel- Privileges of the Senate, p. 167. logg, Taft's Senate Election Oases, 502 THE SENATE. [CHAP. XII. § 84. The President pro tempore of the Senate. At the first session of the Senate, they proceeded by ballot to the choice of a president, for the sole purpose of opening and counting the votes for President of the United States. After the withdrawal of the House, they then proceeded to the choice of a president of their body pro tempore.^ The length of the term of the president pro tempore was at first unsettled ; and the custom arose after the passage of the act, since repealed, which placed the president pro tempore in the line of succession to the presidency of the United States, for the Vice-President to vacate the chair immediately before the close of each session, in order to enable the Senate to choose a president pro tempore.^ By the uniform prac- tice of the Senate until 1890, the term of the president pro tempore was treated as terminated upon the resumption of the chair by the Vice-President ; and it was understood that it was also determined at the meeting of the Senate after the first recess.^ The Senate has, however, come to the following decision upon the subject : — " That the tenure of the President pro tempore does not expire at the meeting of Congress after the first recess, the Vice-President not having appeared to take the chair." "That the death of the Vice- President does not have the effect to vacate the office of President pro tempore of the Senate." "That the office of President pro tempore of the Senate is held at the pleasure of the Senate." * " That it is corn- continued by Furber, pp. 471, 490; same by adding the clause: "Until Corbin v. Butler, ibid., 541, 543. the happening ot the contingency pro- § 84. 1 Journal of Senate, vol. i, p. 7 ; vided for in the 9th Section of the act Furber's Precedents Relating to the of Congress, approved March 1, 1792, Privileges of the Senate, 167. when he is authorized to act as Pres- 2 First Session 43d Congress ; Sen- ident of the United States. (January ate Miscellaneous Documents, No. 10th and 12th, 1876, 1st Session, 44th 101; Furber, Precedents Relating to Congress, Journal of Senate, pp. 90, the Privileges of the Senate, 172. 99 ; Cong. Record, 311-316, 360-373, 3 Jefferson's Manual, § 9; 1st Ses- Senate Report, 3 ; Furber's Precedents sion,44th Congress, Senate Report, 3 ; Relating to Privileges of the Senate, Furber, Precedents Relating to Priv- pp. 173-182, where all the previous ileges of the Senate, p. 176. precedents upon the subject are col- < The first two of these resolutions leeted.) A State case ot doubtful were adopted unanimously ; the last authority holds that a court may, in by a vote of 34 to 15 ; after the rejec- an information on the nature of a quo tion of a proposition to amend the warranto, determine the title to the § 84.J PRESIDENT PRO TEMPORE. 503 petent for the Senate to elect a President pro tempore, who shall hold office during the pleasure of the Senate and until another is elected, and shall execute the duties thereof during all future absences of the Vice- President until the Senate otherwise order." ^ It has been further held by the Senate that in the absence of express authority conferred by rule, neither the Vice-President nor the president pro tempore has the right to designate a senator to take the chair during his temporary absence.^ The rules now provide that : — " The President pro tempore shall have the right to name in open senate, or if absent, in writing, a senator to perform the duties of the chair ; but such substitution shall not extend beyond an adjournment, except by unanimous consent.'" "In the absence of the Vice-Presi- dent, and pending the election of a President pro tempore, the Secretary of the Senate, or in his absence the Chief Clerk, shall perform the duties of the chair." * The president pro tempore may resign that office while retain- ing his office as senator. His resignation should be addressed to the Senate.^ The president pro tempore of the Senate retains his right to vote upon all questions before the Senate.^" In this, he differs from the Vice-President, who can only vote in case of a tie.^^ The presiding officer of the House of Lords can never vote unless he is a peer.^ office of president of the State senate lating to Privileges of the Senate, pp. when there are two claimants elected 183, 184). by different bodies, each of which « See Furber, Precedents Relating claims to be the true senate. State to Privileges of the Senate, pp. 186- V. Rogers, 56 N. J. Law, 480 ; infra, Ch. 189. XVI. ' Senate Rule I. ' This resolution was drawn by ^ Ibid. Senator Evarts and reported by him ' ' Purber's Precedents Relating to from the Committee on Privileges and Privileges of the Senate, 184-186. Elections ; and was adopted by the i" Resolution of March 19, 1792 ; Senate without a call of the yeas and Journal of Senate, vol. i, p. 429. nays, March 12th, 1890 (Congressional 'i Constitution, Article I, Section 3. Report, 1st Session, 51st Congress, ^^ May's Law of Parliament, 2d ed„ 2144-2150 ; Furber, Precedents Re- p. 195. 504 THE SENATE [CHAP. XII. § 85. Other Officers of the Senate. The other officers of the Senate are in general the same as the officers of the House of Representatives, perform similar duties, and are subject to the same liabilities.^ They may be removed at the pleasure of the Senate at any time.^ The officer who per- forms the duties of clerk is termed the Secretary of the Senate. § 85. 1 Supra, § 73. 2 Cliff ■«. Parsons (Iowa), 57, N. W. Kep., 599. CHAPTEH XIII. IMPEACHMENT. § 86. Provisions of the Constitution Concerning Impeachment. The remainder of Section 3, of Article I, provides for the trial of impeachments. For convenience all the parts of the Constitu- tion which relate to impeachments will be here grouped and dis- cussed together. They are as follow : — "The House of Eepresentatives shall chuse their Speaker and other Offlcers; and shall have the sole Power of Impeachment."^ "The Senate shall have the sole Power to try all Impeachments. 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 Concurrence of two-thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, 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 In- dictment, Trial, Judgment and Punishment, according to Law.'"" "In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties 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, Resig- nation or Inability, both of the President 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 be elected." " " 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 Offlcers of the Executive § 86. 1 Article I, Section 2. ' Article II, Section 1. 2 Article I, Section 3. 505 506 IMPEACHMENTS. [CHAP. XIH. Departments upon any Subject relating to the Duties of tlieir respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."* "The President, Vice-President, and all civU 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 Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." * Similar provisions are found in most of the State constitutions, although some provide for the impeachment of former officers who are out of office ; '' others, that the effect of an impeachment shall be to suspend from office the person affected;^ others pre- scribe the practice with more or less detail, and in New York there is a special Court for the Trial of Impeachments, which con- sists of the senate with its president and the judges of the Court of Appeals.^ § 87. Origin of Impeacliinents. Impeachment trials are a survival from the earliest times of jurisprudence when all cases were tried before an assembly of the citizens of the tribe or State. Later, ordinary cases, both civil and criminal, were assigned to courts created for tliat purpose, but matters of great public importance were still reserved for the decision of the whole body of citizens, or subsequently of the council of elders, heads of families, or holders of fiefs. This was due partly because in cases of this character there was danger of undue influence in the decisions by the ordinary courts and of resistance to the execution of their decrees, and partly because they affected public as well as private interests. In Athens, all citizens voted on the ostracism of a man, which was his exile. In Rome and in most other ancient cities, those charged with capital * Article II, Section 2. Art. VII, Sec. 1 ; Texas, Art. XV, Sec. 5. 5 Article II, Section 4. So formerly in Arkansas and Florida. 6 Article III, Section 2. See infra, § 88, note 17, and Appen- ' New Jersey Constitution of 1844, dix. Art. V, Sec. 11. See Vermont Consti- ^ Art. VI, Sec. 1. For provisions tution of 1786, Art. XXI ; and infra. concerning impeachments in the con- * North Daliota, Art. XIV, Sec. 190 ; stitutions of other countries, see sw- South Dakota, Art. XVI, Sec. 5 ; Bhode pra, § 77, note. Island, Art. XI, Sec. 1 ; South Carolina, § 87.] ORIGIN. 507 offenses had the right to a trial by the people.^ The great coun- cils of the Germans, in the time of Tacitus, tried capital cases by a proceeding analogous to an appeal before the English House of Lords.^ Such appeals by individuals seem to have been common under the first Norman kings. In the reign of Richard II, the Lord Chancellor was thus tried on the accusation of a fishmonger for taking bribes in the form of money, cloth and fish.^ These were abolished by the act of 1 Henry IV, c. 14.* Meanwhile, impeachments instituted by the Commons and tried before the Lords had gradually come into use. The first instances occurred between the beginning of the reign of Edward I, and the fiftieth year of the reign of Edward III ; but the practice was then irreg- ular and is obscure.^ They seem more like bills of attainder than trials of impeachments. The first known case of a trial by the Lords upon a definite accusation by the Commons was in the Good Parliament, under Edward III, in 1366. Lords Latimer and Neville with several of their accomplices were then impeached and tried for frauds upon the revenue.^ Under Richard II there were a number of impeachments, of which the most im- portant was that of Michael de la Pole, the Chancellor.''' Under Henry VI, we find two impeachments, that of the Duke of Suffolk for treason in 1451 ; ^ and that of Lord Stanley for a similar offense in 1459.^ The next was that of Sir Giles Mompesson in 1621.1*' Since then there have been fifty-four im- peachments in England, which ended with the acquittal of Lord § 87. 1 Montesquieu, Livre XI, oh. tional History, vol. ii, oh. xvi ; Tay- vi; 4 Blaokstone's Commentaries, 261. lor's Origin and Growth of the Eng- 2 Tacitus de Moribus Germanis, 12 : lish Constitution, p. 441. "Lioet apud consilium aoousare, quo- ' 1 State Trials, 89; Kot. Pari., Ill, que et diserimen capitis Intendere." pp. 216-219. For other Impeach- s Bot. Pari., Ill, p. 168. ments in that reign, see Hot. Pari., Ill, » Clarendon's Case, 6 Howell's State pp. 10-12, 153, 156 ; Stephens, History Trials, 291, 311, 318; Hale's Pleas of of the Criminal Law, vol. i, pp. 145- the Crown, vol. ii, ch. xx, p. 150. 155; Taylor's Origin and Growth of ° Stephens, History of the Criminal the English Constitution, p. 442. Law, vol. i, pp. 145-155 ; Taylor's Ori- s i state Trials, 271. gin and Growth of the English Consti- » Bot. Pari., V, p. 369 ; Taylor's Ori- tution, pp. 441, 442. gin and Growth of the English Consti- 6 Bot. Pari., II, pp. 323-326, 328, tution, p. 442. 329 ; Bymer, p. 322; Hallam's Middle i" 2 State Trials, 1119. Ages, vol. ill, p. 56 ; Stubbs' Constitu- 508 IMPEACHMENTS. [CHAP. XIII. Melville in 1805.^i The reports of the trials upon them abound with matter of interest to the lovers of literature as well as stu- dents of jurisprudence and history. They describe the degradation of Bacon. They contain the pathos of Strafford, and the splendid imagery of Burke and Sheridan which adorned the trial of Warren Hastings. § 88. Proceedings In the Convention as to Impeachment. In the first drafts of the Federal Constitution which were sub- mitted to the Convention, impeachments were to be made by the lower house of Congress and tried by the " national judiciary," or " Federal judiciary." ^ Alexander Hamilton proposed " all im- peachments to be tried by a court to consist of the chief-justice, or judge of the supreme court of law of each State, provided such judge shall hold his place during good behavior, and have a permanent salary." ^ Like the rest of his scheme this received little favor. And in the report of the Committee on Detail the Supreme Court was given jurisdiction over " the trial of impeach- ments of officers of the United States." ^ Gerry then moved that that committee be instructed to report " a mode of trying the supreme judges in cases of impeachment." * Such a report was made, recommending that they be tried by the Senate.^ Gouverneiir Morris was the first to point out the danger of the trial of the President by the Supreme Court.^ The subject was again referred, with others which had not been finally determined, to a committee of one member from each State,'' which reported this part of the Constitution in substantially the form that it re- tained.^ 11 Stephens, History of the Criminal the President, for treason and bribery- Law, vol. i, pp. 157-159. . was taken up. § 88. ' Elliot's Debates, 2d ed., vol. Col. Mason. "Why is the provision V, pp. 128-131, 188, 190, 192. restrained to treason and bribery 2 Ibid., p. 205. only? Treason, as defined in the 8 Ibid., p. 380. Constitution, will not reach many * Ibid., p. 447. great and dangerous offences. Has- 6 Ibid., p. 462. tings is not guilty of treason. At- 6 Ibid., pp. 329, 480, 528. tempts to subvert the Constitution ' Ibid., p. 503. may not be treason, as above defined. 8 " The clause referring to the Sen- As bills of attainder, which have saved ate the trial of impeachments against the British Constitution, are forbid- §88.J PROCEEDINGS IN CONVENTION. 509 There were at first some objections to any provision for the re- moval of the President by impeachment on the ground that this den, it is the more necessary to ex- tend the power of impeachments. He moved to add, after 'bribery,' 'or maladministration.' Mr. Gerry sec- onded him. Mr. Madison. So vague a term will be equivalent to a tenure during pleasure of the Senate. Mr. Gouverneur Morris. It will not be put in force, and can do no harm. An election of every four years will prevent maladministration. Col. Mason, withdrew "' maladmin- istration,' and substituted ' other high crimes and misdemeanors against the State.' On the question, thus altered, — New Hampshire, Massachusetts, Connecticut, Maryland, Virginia, North Carolina, South Carolina (in the printed Journal, South Carolina, no), Georgia, ay, 8; New Jersey, Pennsylvania, Delaware, no, 3. Mr. Madison objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the legislature; and for any act which might be called a misdemeanor. The President, under these circumstances, was made im- properly dependent. He would pre- fer the Supreme Court for the trial of impeachments ; or, rather, a tri- bunal of which that should form a part. Mr. Gouverneur Morris thought no other tribunal thkn the Senate could be trusted. The Supreme Court were too few in number, and might be warped or corrupted. He was against a dependence of the executive on the legislature, considering the legislative tyranny the great danger to be appre- hended; but there could be no danger that the Senate would say untruly, on ' their oaths, that the President was guilty of crimes or facts, especially as in four years he can be turned out. Mr. Pinckney disapproved of mak- ing the Senate the court of impeach- ments, as rendering the President too dependent on the legislature. If he opposes a favorite law, the two Houses will combine against him, and under the influence of heat and faction, throw him out of office. Mr. Williamson thought there was more danger of too much lenity, than of too much rigor, towards the Pres- ident, considering the number of cases in which the Senate was asso- . elated with the President. Mr. Sherman regarded the Supreme Court as improper to try the Presi- dent, because the judges would be appointed by him. On motion by Mr. Madison, to strike out the words, 'by the Senate,' after the word ' conviction,' — Pennsylvania, Virginia, ay, 2 ; New Hampshire, Massachusetts, Connecti- cut, New Jersey, Delaware, Maryland, North Carolina, South Carolina, Geor- gia, no, 9. In the amendment of Col. Mason, just agreed to, the word ' state,' after the words ' misdemeanors ' against, was struck out; an^ the words ' United States ' unanimously inserted, in order to remove ambiguity. On the question to agree to the clause, as amended — New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, ay, 10 ; Penn- sylvania, no, 1. On motion, the following : — 'The Vice President, and other civil officers of the United States, shall be removed from office on im- 510 IMPEACHMENTS. [CHAP. XIU. would render the executive too weak and destroy his independ- ence of the other departments of the government.^ These objec- tors were, however, easily convinced of their error, and of the danger of leaving the power of the President uncontrolled, and his conduct free from punishment until the termination of his office.i" Indeed, strong objections were urged against the adop- tion of the Constitution because there were such difSculties in the way of his conviction on an impeachment.^^ A short discussion took place as to what should constitute an impeachable offense. The first definition was " mal-practice or neglect of duty." ^^ The report of the Committee on Detail said that the President might be removed on impeachment, and con- viction " of treason, bribery, or corruption." ^^ When the report was discussed Colonel Mason first moved to insert after " bribeiy," " or maladministration," then substituted " other high crimes and misdemeanors against the State ; " and finally " United States " for " State," in which form his amendment was adopted.^* A similar provision as to the impeachment of other officers was added.^^ The Committee on Style dropped the words " against the United States." Their report in this respect passed without criticism. peachment and conviction, as afore- bates, 2d ed., vol. v, p. 335.) "Mr. said,' — Pinckney did not see the necessity of was added to the clause on the sub- impeachments. He was sure they jectof impeachments." (Elliot's De- ought not to issue from the legislature, bates, vol. v, pp. 528, 529.) who would in that case hold them as 9 Gouverneur Morris : " The exec- a rod over the executive, and by that utive is also to be impeachable. This means effectually destroy his inde- is a dangerous part of the plan. It pendence. His revisionary power, in will hold him in such dependence, particular, would be rendered alto- that he will be no check upon the gether insignificant." ( Elliot's De- legislature, will not be a firm guard- bates, 2d ed., vol. v, p. 341.) Eufus ian of the people and of the public King spoke to the same effect (ibid., interest. He will be the tool of a fac- pp. 341-342), tion, of some leading demagogue in i" Ibid., 340-343, 361, 362, 366. the legislature. These, then, are the " See Luther Martin's Letter(ibid., faults of the executive establishment \-ol. i, pp. 379, 380). as now proposed. Can no better 12 Elliot's Debates, 2d ed., vol. v, establishment be devised? If he is to p. 149. be the guardian of the people, let him i3 ibid., p. 380. be appointed by the people. If he is 1* Ibid., p. 528, quoted avpra, note 8. to be a check on the legislature, let i^ Ibid., p. 529. him not be impeachable." (Elliot's De- § 88.] HISTORY. 511 A motion was made to amend it by adding, " that persons im- peached be suspended from their offices until they be tried and acquitted." This was wisely voted down.^^ The disorderly pro- ceedings under similar constitutional provisions in the Southern States, in one of which the assembly began by imprisoning the governor in his office, have proved their mischievous character.^'^ The rest of this part of the Constitution was adopted with little or no discussion,!^ and seems to have been copied from the New York Constitution of 1777.i» Penn's Frame of Government of Pennsylvania in 1683 pro- vided for impeachments by the assembly triable before the coun- (jj]_2o Yhe charters of the other colonies seem to have been silent upon the subject ; but the colonial assemblies, in imitation of the English practice, claimed, and in Massachusetts, North and South Carolina exercised, the power to impeach their judges and other officers for trial before their respective councils.^! Chief Justice Trot, in 1717, was found guilty by the Council of South Carolina on an impeachment by the House of Delegates for " having en- grossed the judicial power, by acting as judge of the King's bench, the common pleas, and the admiralty." ^ Most of the State constitutions adopted before the Federal Convention contained provisions for impeachment.^ The Articles of Confederation were silent on the subject. In Pennsylvania, 1' Ibid., pp. 541, 542. "Mr. Mad- Dwight in 6 American Law Eegister, ison. The President Is made too de- N. S., 277. pendent already on the legislature by ^o Poore's Charters and Constitu- the power of one branch to try him tions, pp. 1521, 1523, 1528, 1529. in consequence of an impeachment by ^i John Adams' Works, vol. v, p. the other. This immediate suspen- 236 ; Chalmers, Introduction to the sion will put him in the power of one History of the Revolt of the Colo- branch only. They can at any moment, nies, Book VII, ch. xi; Book VIII, in order to make way for the functions ch. xi. See the Appendix to this -vol- of another who will be more favorable ume for an account of these proceed- to their views, vote a temporary re- ings. moval of the existing magistrate." ^^ Ibid., Book VIII, ch. xi. See the " See the History of Impeachments Appendix to this volume. In Arkansas and Florida in the Ap- ^^ See the Massachusetts Constitu- ~pendix. tion of 1780, Part II, Ch. I, Sect. 2, 18 Elliot's Debates, 2d ed., vol. v, Art. VIII; New York Constitution of pp. 131, 381, 480, 507, 528, 529, 559, 562. 1777, Art XXXIII ; South Carolina w N. Y. Constitution of 1777, Art. Constitution of 1778, Art. XXIII. XXXIII ; Professor Theodore W. 512 IMPEACHMENTS. [CHAP. XIH. under the Confederation in 1780, Judge Hopkinson of the State Court of Admiialty was impeached by the assembly, tried and acquitted by the council. James Wilson, a prominen,t member of the Federal Convention, was one of his attorneys.^ Montesquieu, whose opinions had great weight with the framers of the Constitution, praised highly the English system of impeach- ment.^ Machiavelli ascribed the fall of the republic of Florence to the lack of a law for the impeachment of citizens who plotted against it.^ Tucker said : — " If the want of a proper tribunal for the trial of impeachments can endanger the liberties of the United States, some future Machiavelli may perhaps trace their destruction to the same source." ^ The members of the Federal Convention were familiar with the practice in England and the colonies as well as with the opin- ion of Machiavelli, and they followed the practice of their ances- tors when they inserted these provisions in the Constitution. § 89. Reasons for the Trial of Impeachments by the Senate. The selection of the Senate as the tribunal for the trial of im- peachments has been the target of severe criticism both before ^ and since the adoption of the Constitution.^ The defense of the method adopted may be best stated in the language of Hamilton, Story and Rawle. ' ' A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those ofEences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more ^ See Appendix. § 89. i See Luther Martin's letter, 25 Montesquieu, De I'Esprit des Elliot's Debates, 2d ed., vol. 1, pp. Lois, livre xl, ch. vi. 379-380. 28 History of Florence. 2 See Tucker, Blackstone, vol. i, 27 Tucker's Blackstone, vol. i, Ap- Appendix, pendix, 348. § 89.] BBASONS FOE TRIAL IN THE SENATE. 513 or less friendly or inimical to the accused. In many cases it will con- nect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other ; and in such cases there wiU always be the greatest danger that the decision will be regulated more by the comparative strength of par- ties, than by the real demonstrations of innocence or guilt. "The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the ad- ministration of public afiEairs, speak for themselves. The diflSculty of placing it rightly, in a government resting entnely on the basis of periodical elections, will as readUy be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to pos- sess the requisite neutrality towards those whose conduct may be the subject of scrutiny. " The convention, it appears, thought the Senate the most fit deposi- tory of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be the most inclined to allow due weight to the arguments which may be supposed to have produced it. "What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of National Inquest into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation them selves? It is not disputed that -the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. "Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry ? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the im- peachment, and the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive sei-vants of the government. Is not this the true light in which it ought to be regarded ? ' ' Where else than in the Senate could have been founded a tribunal sufficiently dignified, or sufficiently independent? What other body 514 IMPEACHMENTS. [CHAP. XUl. would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an indi- vidual accused, and the representatives of the people, his accusers? " Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task ; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate repre- sentatives. A deficiency in the first, would be fatal to the accused ; in the last, dangerous to the public tranquillity. The hazard, in both these respects, could only be avoided, if at aU, by rendering that tribunal more numerous than would consist with a reasonable intention to economy. The necessity of a numerous court for the trial of im- peachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offence by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of im- peachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the commu- nity, forbids the commitment of the trust to a small number of persons. ' ' These considerations seem alone sufficient to authorize a conclu- sion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which wUl not a little strengthen this .conclusion. It is this : The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he wUl still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen, in one trial, should, in another trial, for the same offence, be also the disposers of his life and his fortune ? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence ? That the strong bias of one decision would be apt to over- § 89.] THE FEDERALIST. 515 rule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the afl3rmative ; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double secu- rity intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, im- ported nothing more than dismission from a present, and disqualifica- tion for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt ? "Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages ; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention ; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded. ' ' Would it have been desirable to have composed the court for the trial of impeachments, of persons whoUy distinct from the other de- partments of the government? There are weighty arguments, as well against, as in favor of, such a plan. To some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utQity of which woiild at best be questionable. But an objection which will not be thought by any unworthy of attention is this : a court formed upon such a plan, would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. It must either consist of permanent officers, stationary at the seat of 516 IMPEACHMENTS. [CHAP. Xin. government, and of course entitled to fixed and regular stipends, or of certain officers of the State governments to be called upon whenever an impeachment was actually depending. It will not be easy to imagine any third mode materially different, which could rationally be proposed. As the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants 'with the means of supplying them. The second wUl be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole Union ; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corrup- tion ; and in some cases the detriment to the State, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives. Though this latter supposi- tion may seem harsh, and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men."' " A review of the principal objections that have appeared against the proposed court for the trial of impeachments, will not improbably eradicate the remains of any unfavorable impressions which may stiU exist in regard to this matter. " The _^rsi of these objections is, that the provision in the question confounds legislative and judiciary authorities in the same body, in violation of that important and well-established maxim which requires a separation between the different departments of power. The true meaning of this maxim has been discussed and ascertained in another place, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, preserving them, in the main, distinct and unconnected. This partial inter- mixture is even, in some cases, not only proper but necessary to the mutual defence of the several members of the government against each other. An absolute or qualified negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. And it may, perhaps, with no less reason be contended, that the powers relating to impeachments are, as before in- timated, an essential check in the hands of that body upon the en- ' 8 The Federalist, No. Ixv. § 89.] THE PEDEEAIJST. 517 croachments of the executive. The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other, the right of judging, avoids the inconvenience of making the same persons both accusers and judges ; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. As the concurrence of two-thirds of the Senate will be re- quisite to a condemnation, the security to innocence, from this addi- tional circumstance, will be as complete as itself can desire. " It is curious to observe, with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire, without exception, the constitution of this State ; while that Constitution makes the Senate, together with the chancellor and judges of the Supreme Court, not only a court of impeachments, but the highest judicatory in the State, in all causes, civil and criminal. The proportion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of New York, in the last resort, may, with truth, be said to reside in its Senate. If the plan of the convention be, in this respect, chargeable with a departure from the celebrated maxim which has been so often men- tioned, and seems to be so little understood, how much more culpable must be the constitution of New York ? * ' ' A second objection to the Senate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic. The Senate, it is observed, is to have concurrent authority with the Execu- tive in the formation of treaties and in the appointment to offices : If, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy to senatorial influence. To an objection so little precise in itself, it is not easy to find a very precise answer. "Where is the measure or criterion to which we can appeal, for determining what will give the Senate too much, too little, or barely the proper degree of influence ? Will it not be more safe, as weU as more simple, to dismiss such vague and uncertain calcula- tions, to examine each power by itself, and to decide, on general prin- ciples, where it may be deposited with most advantage and least incon- venience ? " If we take this course, it will lead to a more intelligible, if not to * " In that of New Jersey, also, the and South Carolina, one branch of the final judiciary authority is in a branch legislature is the court for the trial of the legislature. In New Hamp- of impeachments. —PmSZim." shire, Massachusetts, Pennsylvania, 518 IMPBACBLMENTS. [CHAP. XHL. a more certain result. The disposition of the power of making treaties, which has obtained in the plan of the convention, will, then, if I mis- take not, appear to be fully justified by the considerations stated in a former number, and by others which will occur under the next head of our inquiries. The expediency of the conjunction of the Senate with the Executive, in the power of appointing to offices, will, I trust, be placed in a light not less satisfactory, in the disquisitions under the same head. And I flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practic- able, to find a more fit receptacle for the power of determining im- peachments, than that which has been chosen. If this be tmly the case the hypothetical dread of the too great weight of the Senate ought to be discarded from our reasonings. " But this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. It was by them shown, as well on the credit of historical examples, as from the reason of the thing, that the most popular branch of every government, partaking of the republican genius, by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the Government. "But independent of this most active and operative principle, to secure the equilibrium of the national House of Representatives, the plan of the convention has provided in its favor several important, counterpoises to the additional authorities to be conferred upon the Senate. The exclusive privilege of originating money bills will belong to the House of Representatives. The same house will possess the sole right of instituting impeachments : is not this a complete counterbalance to that of determining them? The same house will be the umpire in all elections of the President which do not unite the suffrages of a majority of the whole number of electors ; a case which it cannot be doubted will sometimes, if not frequently, happen. The constant pos- sibility of the thing must be a fruitful source of influence to that body. The more it is contemplated, the more important will appear this ultimate though contingent power, of deciding the competitions of the most illustrious citizens of the Union, for the first office in it. It would not perhaps be rash to predict, that as a mean of influence it will be found to outweigh all the peculiar attributes of the Senate. "A tJiird objection to the Senate as a court of impeachments, is drawn frorh the agency they are to have in the appointments to office. It is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated. The principle § 89.] THE FEDERALIST. 519 of this objection would condemn a practice, -whicli is to be seen in all the State governments, if not in all the governments with which we are acquainted : I mean that of rendering those who hold offices during pleasure, dependent on the pleasure of those who appoint them. With equal plausibility might it be alleged in this case, that the favoritism of the latter would always be an asylum for the misbehavior of the former. But that practice, in contradiction to this principle, proceeds upon the presumption, that the responsibility of those who appoint, for the fit- ness and competency of the persons on whom they bestow their choice, and the interest they will have in the respectable and prosperous admin- istration of affairs, will inspire a sufficient disposition to dismiss from a share in it all such who, by their conduct, shall have proved themselves unworthy of the confidence reposed in them. Though facts may not always correspond with this presumption, yet if it be, in the main, just, it must destroy the supposition that the Senate, who will merely sanction the choice of the Executive, should feel a bias, towards the objects of that choice, strong enough to blind them to the evidences of guilt so extraordinary, as to have induced the representatives of the nation to become its accusers. ' ' If any further arguments were necessary to evince the improbability of such a bias, it might be found in the nature of the agency of the Senate in the business of appointments. " It will be the office of the President to nominate, and, with the ad- vice and consent of the Senate, to appoint. There will of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose — they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one pro- posed, because there might be no positive ground of opposition to him ; and they could not be sure, if they withheld theu- assent, that the sub- sequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy. '■'■AfouHh, objection to the Senate, in the capacity of a court of im- peachments, is derived from its union with the Executive in the power of making treaties. This, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious 520 IMPEACHMENTS. [CHAP. XHI. execution of that trust. After having combined with the Executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their being made to suffer the punishment they would deserve, when they were themselves to decide upon the accusation brought against them for the treachery of which they have been guilty ? "This objection has been circulated with more earnestness and with greater show of reason than any other which has appeared against this part of the plan ; and yet I am deceived if it does not rest upon an erroneous foundation. "The security essentially intended by the Constitution against cor- ruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. The JOINT AGENCY of the Chief Magistrate of the Union, and of the two- thirds of the members of a body selected by the collective wisdom of the legislatures of the several States, is designed to be the pledge for the fidelity of the national councils in this particular. The convention might with propriety have meditated the punishment of the Executive, for a deviation from the instructions of the Senate, or a want of integ- rity in the conduct of the negotiations committed to him ; they might also have had in view the punishment of a few leading individuals in the Senate, who should have prostituted their influence in that body as the mercenary instruments of foreign corruption ; but they could not with more or with equal propriety, have contemplated the impeachment and punishment of two-thirds of the Senate, consenting to an improper treaty, than of a majority of that or of the other branch of the national legislature, consenting to a pernicious or unconstitutional law, — a prin- ciple which, I believe, has never been admitted into any government. How, in fact, could a majority in the House of Representatives impeach themselves? No better, it is evident, than two-thirds of the Senate might try themselves. And yet what reason is there, that a majority of the House of Representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation, should escape with im- punity, more than two-thirds of the Senate, sacrificing the same inter- ests in an injurious treaty with a foreign power? The truth is, that in all such cases it is essential to the freedom and to the necessary inde- pendence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity ; and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it their interests to execute it with fidelity, and to make it as difficult as possible for them to com- bine in any interest opposite to that of the public good. § 89.] JUDGE STOEY. 521 " So far as might concern the misbehavior of the Executive in per- verting the instructions or contravening the views of the Senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence, or to vindicate their own authority. We may thus far count upon their pride, if not upon their virtue. And so far even as might concern the corruption of leading members, by whose arts and influence the majority may have been inveigled into measures odious to the community if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace." ^ "In regard to political offences, the selection of the senators has some positive advantages. In the first place they may be fairly pre- sumed to have a more enlarged knowledge than persons in other situa- tions, of political functions and their difficulties and embarrassments ; of the nature of diplomatic rights and duties ; of the extent, limits, and variety of executive powers and operations ; and of the sources of in- voluntary error and undesigned excess, as contradistinguished from those of meditated and violent disregard of duty and right. On the one hand, this very experience and knowledge will bring them to the trial with a spirit of candor and intelligence, and an ability to com- prehend and scrutinize the charges against the accused ; and, on the other hand, their connection with, and dependence on, the States, will make them feel a just regard for the defence of the rights and the in- terests of the States and the people. And this may properly lead to another remark ; that the power of impeachment is peculiarly well fitted to be left to the final decision of a tribunal composed of representatives of all the States, having a common interest to maintain the rights of aU, and yet beyond the reach of local and sectional prejudices. Surely, it will not readily be admitted by the zealous defenders of State rights and State jealousies, that the power is not safe in the hands of all the States, to be used for their own protection and honor. " " " That there is a great force in this reasoning all persons of common candor must allow; that it is in every respect satisfactory and un- answerable has been denied, and may be fairly questioned. That part of it which is addressed to the trial at law by the same judges might have becA in some degree obviated by confiding the jurisdiction at law over the offence (as in fact it is now confided) to an inferior tribunal, 6 The Federalist, No. Ixvi. « Story on the Constitution, § 750. 622 IMPEACHMENTS. [CHAP. XIH. and excluding any judge who sat at the impeachment from sitting in the court of trial. Still, however, it cannot be denied that even in such a case the prior judgment of the Supreme Coui-t, if an appeal to it were not allowable, would have very great weight upon the minds of inferior judges. But that part of the reasoning which is addressed to the im- portance of numbers in giving weight to the decision, and especially that which is addressed to the public confidence and respect which ought to follow upon a decision, is entitled to very great weight. It is fit, however, to give the answer to the whole reasoning by the other side in the words of a learned commentator, who has embodied it with no small share of ability and skill. The reasoning ' seems,' says he, ' to have forgotten that senators may be discontinued from their seats merely from the effect of popular disapprobation, but that the judges of the Supreme Court cannot. It seems also to have forgotten that, whenever the President of the United States is impeached, the Consti- tution expressly requires that the Chief Justice of the Supreme Court shall preside at the trial. Are all the confidence, all the firmness, and all the impartiality of that court supposed to be concentred in the Chief Justice, and to reside in his breast only? If that court could not be relied on for the trial of impeachments, much less would it seem worthy of reliance for the determination of any question between the United States and a particular State ; much less to decide upon the life and death of a person whose crimes might subject him to impeachment, but whose influence might avert a conviction. Yet the courts of the United States are by the Constitution regarded as the proper tribunals where a party convicted upon an impeachment may receive that condign punishment which the nature of his crimes may require ; for it must not be forgotten that a person convicted upon an impeachment will never- theless be liable to indictment, trial, judgment, and punishment accord- ing to law, etc. The question, then, might be retorted : can it be sup- posed that the Senate, a part of whom must have been either particeps criminis with the person impeached, by advising the measure for which he is to be tried, or must have joined the opposition to that measure, when proposed and debated in the Senate, would be a more independent or a more unprejudiced tribunal than a court composed of judges hold- ing their oflflces during good behavior and who could neither be presumed to have participated in the crime, nor to have prejudged the criminal? '" " This reasoning also has much force in it; but in candor also it must be admitted to be not wholly unexceptionable. That part which ' Ibid., § 760, citing Tucker's Blackstone, vol. 1, App., p. 237. § 89.] JUDGE STOET. 623 is addressed to the circumstance of the Chief Justice's presiding at the trial of the President of the United States was (as we shall hereafter see) not founded on any supposition that the Chief Justice would be supe- rior in confidence and firmness and impartiality to the residue of the judges (though in talents and public respect and acquirements he might fairly be presumed their superior), but on the necessity of excluding the Vice- President from the chair when he might have a manifest interest which would destroy his impartiality. That part which is addressed to the supposition of the senators heing participes criminis is still more ex- ceptionable ; for it is not only incorrect to aflSrm that the senators must be in such a predicament, but in all probability the senators would, in almost all cases, be without any participation in the offence. The offences which would be generally prosecuted by impeachment would be those only of a high character, and belonging to persons in eminent stations, — such as a head of department, a foreign minister, a judge, a vice-president, or a president. Over the conduct of such persons the Senate could ordinarily have no control; and a corrupt combination with them in the discharge of the duties of their respective offices could scarcely be presumed. Any of these officers might be bribed, or commit gross misdemeanors, without a single senator having the least knowledge or participation in the offence. And, indeed, very few of the senators could at any time be presumed to be in habits of intimate personal confidence or connection with many of these officers. And so far as public responsibility is concerned or public confidence is required, the tenure of oflSce of the judges would have no strong tendency to secure the former, or to assuage public jealousies so as peculiarly to encourage the latter. It is perhaps, one of the circumstances most im- portant in the discharge of judicial duties, that they rarely carry with them any strong popular favor or popular influence. The influence, if any, is of a different sort, arising from dignity of life and conduct, abstinence from political contests, exclusive devotion to the advance- ment of the law, and a firm administration of justice ; circumstances which are felt more by the profession than they can be expected to be praised by the public.'" ' ' There are, however, reasons of great weight besides those which have been already alluded to, which fully justify the conclusion that the Supreme Court is not the most appropriate tribunal to be invested with authority to try impeachments.'" "In the first place, the nature of the functions to be performed. 8 Story on the Constitution, § 761. » Ibid., § 763. 524 IMPEACHMENTS. [CHAP. XIH. The offences to which the power of impeachments has been and is ordinarily applied as a remedy are of a political character. Not but that crimes of a strictly legal character fall within the scope of the power (for as we shall presently see, treason, bribery, and other high crimes and misdemeanors are expressly within it) ; but that it has a more enlarged operation, and reaches what are aptly termed poKtical offences, growing out of personal misconduct or gross neglect, or usur- pation, or habitual disregard of the public interests, in the discharge of the duties of political oflSce. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossi- ble to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty. They must be judged of by the habits and rules and principles of diplomacy, of departmental operations and arrangements, of parliamentary practice, of executive customs and negotiations, of foreign as well as domestic political movements ; and, in short, by a great variety of circumstances, as well those which aggravate as those which extenuate or justify the offensive acts which do not properly be- long to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence. They are duties which are easily understood by statesmen, and are rarely known to judges. A tribunal composed of the former would therefore be far more competent in point of intelligence and abUity than the latter for the discharge of the functions, all other circumstances being equal. And, surely, in such grave affairs, the competency of the tribunal to discharge the duties in the best manner is an indispensable qualifica- tion." ^o " In the next place, it is obvious that the strictness of the forms of proceeding in cases of offences at common law is ill adapted to im- peachments. The very habits growing out of judicial employments, the rigid manner in which the discretion of judges limited and fenced in on all sides, in order to protect persons accused of crimes by rules and precedents, and the adherence to technical principles, which, per- haps, distinguishes this branch of the law more than any other, are all ill adapted to the trial of political offences in the broad course of im- peachments. And it has been observed, with great propriety, that a tribunal of a liberal and comprehensive character, confined as little as possible to strict forms, enabled to continue its session as long as the nature of the law may require, qualified to view the charge in all its bearings and dependencies, and to appreciate on sound principles of 1° Story on the Constitution, § 764. § 89.] JTXDGE STOEY. 625 public policy the defence of the accused, seems indispensable to the value of the trial. The history of impeachments, both in England and America, justifies the remark. There is little technical in the mode of proceeding ; the charges are sufficiently clear and yet in a general form ; there are few exceptions which arise in the application of the evidence which grow out of mere technical rules and quibbles. And" it has re- peatedly been seen that the functions have been better understood, and more liberally and justly expounded, by statesmen than by mere lawyers. An illustrious instance of this sort is upon record in the case of the trial of Warren Hastings, where the questions whether an im- peachment was abated by a dissolution of Parliament was decided in the negative by the House of Lords, as well as the House of Com- mons, against what seemed to be the weight of professional opinion."" "In the next place, the very functions involving political interests and connections are precisely those which it seems most important to exclude from the cognizance and participation of the judges of the Supreme Court. Much of the reverence and respect belonging to the judicial character arise from the belief that the tribunal is impartial, as well as enlightened, just, as well as searching. It is of very great con- sequence that judges should not only be, in fact, above all exception in this respect, but that they should be generally believed to be so. They should not only be pure, but, if possible, above suspicion. Many of the offences which will be charged against public men will be generated by the heats and animosities of party, and the very circumstance that judges should be called to sit, as umpires, in the controversies of party, would inevitably involve them in the common odium of partisans, and place them in public opinion, if not in fact, at least in form, in the array on one side or the other. The habits, too, arising from such functions, will lead them to take a more ardent part in public discus- 11 Story on the Constitution, § 765, in the Appendix, infra. The oases citing Eawle on the Constitution, where impeachments have been tried oh. xxii ; 4 Blackstone's Commenta- in the ordinary courts have all re- ries, p. 400, Christian's Note. In suited in acquittals, in at least one New York, where the judges of the instance where the proof against the Court of Appeals and the Senate form respondents seemed very clear. See the Court for the Trial of Impeach- The State ex rel. Attorney-General v. ments, the former, with exception of Buckley, 54 Ala., 599; State of Ne- Judge Grover, have almost uniformly braska v. "William Leese, Ex-Attorney- required far stronger proof of guilt General, 37 Neb., 92; State of Nebraska than would satisfy an ordinary jury v. George H. Hastings, Attorn ey- before voting for conviction. See General, and others, 37 Neb., 96; Dorn's Impeachment Trial and Bar- which are described in the Appendix, nard's Impeachment Trial described infra. 526 IMPEACHMENTS. [CHAP. XIII. sions, and in the vindication of theii- own political decisions, than seems desirable for those who are daily called upon to decide upon the private rights and claims of men distinguished for their political consequence, zeal , or activity in the ranks of party. In a free government like ours there is a peculiar propriety in withdrawing as much as possible all judicial functionaries from the contests of mere party strife. With all their efforts to avoid them, from the free intercourse, and constant changes in a republican government both of men and measures, there is at aU times the most imminent danger that all classes of society will be drawn into the vortex of politics. Whatever shall have a tendency to secure in tribunals of justice a spirit of moderation and exclusive devotion to juridical duties is of inestimable value. What can more surely advance this object than the exemption of them from all participation in, and control over, the acts of political men in their official duties? Where, indeed, those acts fall within the character of known crimes at common law or by positive statute, there is little difficulty in the duty, because the rule is known, and equally applies to aU persons, in and out of office ; and the facts are to be tried by a jury, according to the habitual course of investigation in common cases. The remark of Mr. Woodeson on this subject is equally just and appropriate. After having enumerated some of the cases in which impeachments have been tried for political offences, he adds that from these ' it is apparent how little the ordinary tribunals are calculated to take cognizance' of such offences, or to investigate and reform the general polity of the State.' " ^^ ' ' In the next place, the judges of the Supreme Court are appointed by the executive, and will naturally feel some sympathy and attachment for the person to whom they owe this honor, and for those whom he selects a,s his confidential advisers in the departments. Yet the Presi- dent himself and those confidential advisers are the very persons who are eminently the objects to be reached by the power of impeachment. The very circumstance that some, perhaps a majority, of the Court, owe their elevation to the same chief magistrate whose acts, or those of his confidential advisers, are on trial, would have some tendency to diminish the public confidence in the impartiality and independence of the tribunal." " "But in the next place, a far more weighty consideration is, that some of the members of the judicial department may be impeached for malconduct in office; and thus, that spirit which, for want of a better term, has been called the corporation spirit of organized tribunals and 12 Story on the Constitution, § 766, is Ibid., § 767. citing 2 Woodeson, Lect. 40, p. 602. § 89.] JUDGE STOBY. 527 societies, will naturally be brought into play. Suppose a judge of the Supreme Court should himself be impeached ; the number of his triers would not only be diminished, but all the attachments and partialities, or it may be the rivalries and jealousies, of peers on the same bench, may be, (what is practically almost as mischievous) may be suspected to be, put in operation to screen or exaggerate the offence. "Would any person soberly decide that the judges of the Supreme Court would be the safest and the best of all tribunals for the trial of a brother judge, taking human feelings as they are and human infirmity as it is? If not, would there not be, even in relation to inferior judges, a sense of indulgence, or a bias of opinion upon certain judicial acts and practices, which might incline their minds to undue extenuation or to undue harshness? And if there should be, in fact, no danger from such a source, is there not some danger, under such circumstances, that a jealousy of the operations of judicial tribunals over judicial offences would create in the minds of the community a broad distinction in re- gard to convictions and punishments between them and merely political offences ? "Would not the power of impeachment cease to possess its just reverence and authority if such a distinction should prevail ; and especially if political victims rarely esca,ped, and judicial officers as rarely suffered ? Can it be desirable thus to create any tendency in the public minds towards the judicial department which may impair its general rfespect and daily utility? " " " Considerations of this sort cannot be overlooked in inquiries of this nature ; and if to some minds they may not seem wholly satisfactory, they at least establish that the Supreme Court is not a tribunal for the trial of impeachment whoUy above all reasonable exception. But if to considerations of this sort it is added that the common practice of free governments, and especially of England and of the States composing the Union, has been to confide this power to one department of the legislative body upon the accusation of another ; and that this has been found to work well, and to adjust itself to the public feelings and prejudices, to the dignity of the legislature, and to the tranquillity of the State, the infiuence in its favor cannot but be greatly strengthened and confirmed." " "On a review of all the departments of government provided by a Constitution, none will be found more suitable to exercise this peculiar jurisdiction than the Senate. Although, like their accusers, they are representatives of the people, yet they are by a degree more removed, " Story on the Constitution, § 768. however, Eawle on the Constitution, 16 Ibid., § 769, pp. 562, 563. See, ch. xxii, p. 214. 528 IMPEACHMENTS. [CHAP. XHI. and hold their stations for a longer term. They are, therefore, more independent of the people, and being chosen with the knowledge that they may, while in office, be called upon to exercise this high function, they bring with them the confidence of their constituents that they will faithfully execute it, and- the implied compact, on their own part, that it shall be honestly discharged. Precluded from ever becoming accusers themselves, it is their duty not tft lend themselves to the animosities of party or the prejudices against individuals, which may sometimes un- consciously induce the House of Representatives to the acts of accusa- tion. Habituated to comprehensive views of the great political relations of the country, they are naturally the best qualified to decide on those charges which may have any connection with transactions abroad, or great political interests at home. And although we cannot say that, like the English House of Lords, they form a distinct body, wholly uninfluenced by the passions and remote from the interests of the people, yet we can discover in no other division of the government a greater probability of independence and impartiality."''* These arguments have convinced the American people, and in all the States except New York, Oregon, and Nebraska, impeach- ments are made and tried substantially as is provided in the Con- stitution of the United States, although in a few the Chief-Justice of the Supreme Court presides in all impeachment trials except when he is a party. New York maintains the practice established in her first constitution, and has a special court for the trial of impeachments which is composed of the president of the Senate, the senators, or a major part of them, and the judges of the Court of Appeals, or the major part of them.^'' Experience has shown that the judges have been more disposed to acquit than have the senators.^^ The Oregon Constitution ordains : — ' ' Public officers shall not be impeached ; but incompetency, corruption, or malfeasance, or inefficiency in office, may be tried in the same manner as criminal offences, and judgment may be given of dismissal from office, and such further punishment as may be prescribed by law." '' In Nebraska impeachments are made by a majority of the legis- lature in joint convention. They are tried by the Supreme Court, 1" Bawle on the Constitution, ch. i' New York Constitution, Art. VI, xxii, pp. 201-202, quoted with ap- Sec. 1. proval in Story on the Constitution, w Supra, note 11. § 775. 19 Art. VII, Sec. 19. § 90.J Blount's impeachment. 529 unless a judge of that court is impeached, when he is tried by the judges of the District Court.^" In Louisiana there is a remedy alternate to impeachment by a suit in the Supreme Court by the Attorney-General for the re- moval of the judges of the Court of Appeals and other courts.^i These provisions have not been tjjed suiiiciently to determine whether it is yet safe to trust the courts with so tremendous a jurisdiction as that of the removal of a President of the United States. § 90. History of Impeachments before the Senate of the United States. There have been seven impeachment trials before the Senate of the United States, of which two only have resulted in convictions. On July 7th, 1797, William Blount, a senator from Tennessee, was impeached for high crimes and misdemeanors. On the same day the Senate resolved that the respondent be taken into the custody of the messenger until he should enter into a recognizance, which he gave, binding himself in the sum of $20,000 with two sufScient sureties in the sum of $15,000 each, to appear and answer such articles of impeachment as might be exhibited against him. On the following day he was expelled from the Senate as guilty of a high misdemeanor, entirely inconsistent with his pub- lic trust and duty as a senator. Thereupon the sureties sur- rendered his person, and asked to be discharged. It was then resolved that he be taken into custody of the messenger, until he should enter into another recognizance to the same effect, himself in the sum of fl,000, with two sufficient sureties in the sum of $600 each, which was also given. Articles of impeachment were not presented until the next session, in January, 1798. They charged : — That the respondent while senator had conspired to create and promote, and set on foot, within the jurisdiction and territory of the United States, and to conduct and carry on from thence, a military hostile expedition against the territories and dominions of Spain in the Floridas and Louisiana for the purpose of wresting the same from Spain, and of conquering the same for Great 2» Art. V, Sec. 14. 21 Art. CO. 530 IMPEACHMENTS. [CHAP. Xin. Britain, with which Spain was then at war. That at the same time he had conspired and contrived to excite the Creek and Cherokee nations of Indians, then inhabiting within the United States, to commence hostilities against the subjects and possessions of Spain, in the Floridas and Louisiana, for the same purpose, in violation of a treaty by which the United States and Spain had agreed to maintain peace and harmony with all the means in their power among the Indians who inhabited the country adjacent to the boundaries of the Floridas. That he had further conspired and contrived to alienate and divert the confidence of the said Indian tribes or nations from Benjamin Hawkins, the principal temporary agent of the United States appointed by the President in accordance with law to reside among the tribes, and to diminish, impair and destroy the influence of that agent with those tribes, and their friendly intercourse and understanding with him. That he had conspired and contrived to seduce James Carey, the inter- preter duly appointed by the United States to reside within said Indian tribes, from the duty and trust of his appointment, and to engage Carey to assist in the promotion and execution of his said criminal intentions and conspiracies aforesaid; and that he had for the same purpose further conspired and contrived to diminish and impair the confidence of the Cherokee nation in the govern- ment of the United States, and to create and foment discontents and disaffection among the said Indians, towards the government of the United States, in relation to the ascertainment and marking of the boundary line between the United States and the Cherokee nation, which a treaty between them provided should be ascer- tained and marked by commissioners in a manner therein pre- scribed. The managers of the House of Representatives included James A. Bayard and Robert G. Harper. Blount's counsel were Jared IngersoU and A. J. Dallas. They filed a plea to the jurisdiction on the ground that the respondent was not then, a senator, and was not then, nor at the time of the offenses charged, a civil officer of the United States. The House filed a replication to the plea, alleging that the matters therein set forth were insufficient to exempt Blount from answering the articles. The questions of law arising thereupon, which are discussed later, were argued by Bayard and § 90.] Blount's impeachment. 531 Harper for the United States, and by Dallas and IngersoU for the respondent. The plea was sustained by a vote of 14 to 11 ; and the respondent consequently acquitted. Blount returned to Ten- nessee, where he had not forfeited the confidence of his constituents; for he was subsequently elected to the State Senate, made speaker of that body, and was about to be elected governor at the 'time of his death, not long after his expulsion.^ Upon the destruction of the Federalist party on the elec- tion of Jefferson to the presidency, the Democrats found most of the judicial offices in the States as well as the United States filled by their political opponents, whose terms did not expire until their deaths, or at least a long period of time. The in- cumbents had been chosen from the "ranks of the wealthy and well born"; and had made themselves obnoxious by their arro- gance to the poor, and to those who had not attained social dis- tinction and were not adherents to the prevailing religious sect. The opinion which now generally prevails, that judges should ab- stain from interference in politics, was not then in force. It was the constant custom for their charges to grand juries to include arguments on the party questions of the day ; and in many cases, when not holding court, they also took the stump during politi- cal campaigns. Human nature would have been different had not the Democrats who had then gained nearly all the offices which were supplied at the last election, tried to fill the benches also with members of their own party. An assault upon the judiciary. State and Federal, was made all along the lines. In some States, as New Hampshire, old courts were abolished and new ones with similar jurisdiction created for the sole purpose of obtaining new judges. In Pennsylvania, one obnoxious Fed- eral judge was removed from the Common Pleas by impeach- ment ;2 and an impeachment of all the Federal judges of the highest court was made, but failed through the uprising of the entire bar, irrespective of party lines, in defense of their official chiefs .3 A similar attack was made upon the Federal judiciary. § 90. 1 Wharton's State Trials, pp. infra, § 93, and Appendix to this 250-321. Some of the arguments are volume, quoted infra, § 93. ^ Impeachment Trial of Shippen, 2 Addison's Impeachment Trial, Smith, and Teates, imfra. Appendix. 532 IMPEACHMENTS. [CHAP. XHI. On February 3d, 1803, Jefferson sent a message to the House of Representatives in which he said : — ' ' The enclosed letter and affidavits exhibiting matter of complaint against John Picltering, District Judge, of New Hampshire, which is not within executive cognizance, I transmit them to the House of Rep- resentatives, to whom the Constitution has confided a power of insti- tuting proceedings of redress if they be of opinion that the cases call for them."* The result was the immediate impeachment of that judge. The articles charged disobedience to the law in the course of pro- ceedings on the part of the United States to condemn the ship Eliza with its cargo for a violation of the custom laws : where the judge delivered the ship to the claimant after its attachment by the marshal without requiring any bond as the law directed ; refused to hear testimony offered by the District Attorney on behalf of the United States ; refused to allow an appeal by the Govern- ment from his decree to the Circuit Court of the United States; sat drunk upon the bench, using profane language ; " and was then and there guilty of other high misdemeanors degrading to his own character as a judge and degrading to the honor and dignity of the United States." There was no appearance on the part of the respondent. His son, however, presented, through Robert G. Hatper as counsel, a petition, alleging the insanity of his father and praying a postponement of the trial with leave to defend on his behalf. Harper expressly disclaimed any appearance for the re- spondent. He was allowed, against the protest of the managers of the House of Representatives, to present evidence of the respondent's insanity in support of the petition. The managers thereupon re- tired to take the opinion of the House respecting their further procedure. The House discussed the matter, but took no action upon the subject. Meanwhile, the depositions, one of which was sworn to before a State justice of the peace, were read. They tended to support the allegations in the petition. No action was taken by the Senate thereupon. The managers then returned and continued the trial. The facts alleged in the articles were proved. One of the witnesses on the impeachment, the marshal of « Annals of Congress, 1802, 1803, p. 460. § 90.] chase's impeachment. 533 his court, swore that Judge Pickering was never deranged except when drunk. Others, including one of the senators from New Hampshire, both of whom after their testimony voted for an acquittal, testified that Pickering was insane when sober. The Senate voted that the form of putting the final question should be : " Is the respondent guilty as charged in the Article ? " Five senators thereupon retired from the court, — " not because they believed Judge Pickering guilty of high crimes and misdemeanors, but because they did not choose to be compelled to give so solemn a vote upon a form of question which they considered an un- fair one, and calculated to preclude them from giving any distinct and explicit opinion upon the true and most important points in the cause, viz. : as to the insanity of Judge Pickering, and whether the charges contained in the articles of impeachment, if true, amounted in him to high crimes and misdemeanors, or not." The impeached was convicted on each of the articles by a vote of 19 to 7. He was sentenced to removal from ofiiee by a vote of 20 to 6. One of the senators who voted for an acquittal voted for his removal.® Meanwhile proceedings were taken to rid the bench of a still more obnoxious judge. On the same day that Judge Pickering was convicted, the House of Representatives adopted a resolution impeaching Samuel Chase, a Justice of the Supreme Court. He was a native of the State of Maryland, which he had represented in the Continental Congress. During that time an unsuccessful attempt had been made to impeach him in the house of delegates ; and he had been temporarily excluded from the place on account of certain business transactions in which he had engaged.^ He was afterwards chief-justice of the criminal court in Bal- timore, and while holding that position was also commissioned chief-justice of the General Court. He held both positions until, after an unsuccessful attempt in the house of delegates to remove him, a joint resolution passed both houses of the State legisla- ture declaring the juncture of the two offices unconstitutional.'^ 6 Annals of Congress, 1802-1803, « Wharton's State Trials, p. 43. pp. 267-268. Annals of Congress, ' Ibid. 1803-1804, pp. 27, 76, 224-225, 268, 270-271, 275, 298, 315-367. 534 IMPEACHMENTS. [CHAP. Xin. Notwithstanding this history, he was appointed Justice of the Su- preme Court of the United States by Washington, against the pro- test of a number of the President's friends.^ In his early life he had been an extreme Democrat, but after his appointment he be- came the most rabid of the Federalists. He attached himself with enthusiasm to the support of President Adams. He supported the enforcement of the Sedition Law, both by urging grand juries to find indictments, many of which they refused, and by gross un- fairness on the trial of those who were indicted. His charges to grand juries abounded in denunciations of the French Revolution and the Demociatic party. He took the stump for Adams at the time when Jefferson was elected.^ He grossly insulted the bar by his treatment of some of its leading members, including Wirt. For this reason his impeachment seemed the best oppor- tunity for the insertion of an opening wedge which might result, if not in the removal, at least in the intimidation of all the Fed- eralists on the Supreme Court of the United States. A few days after its delivery a violent charge made by Justice Chase to the grand jury at Baltimore was the occasion of the following letter by the President to Joseph Nicholson, who was then one of the managers of Pickering's impeachment : — " You must have heard of the extraordinary charge of Chase to the grand Jury at Baltimore. Ought this seditious and official attack on the principles of our Constitution and on the proceedings of a State to go unpunished ; and to whom so pointedly as yourself will be looked for the necessary measures ? I ask these questions for your considera- tion ; for myself it is better that I should not interfere." " Nicholson, at the advice of friends, declined to move in the matter. The fact that in case of Chase's removal he would have probably been his successor seemed in itself a sufficient reason.^^ The task was assumed by John Randolph of Roanoke. His igno- rance of law, and even of the elementary principles of justice, and his lack of tact, which was never so apparent as in the management of this prosecution, was the main cause of its failure. 8 Gibb's Wolcott, vol. i, p. 300. n Macon to Nicholson, August 6, 9 "Wharton's State Trials, pp. 42-45. 1803, Nicholson's MSS. Adams, His- 1° Jefferson to Nicholson, May 13, tory of the United States, vol. ii, pp. 1803, Jefferson's Works, vol. Iv, p. 486. 150-151. § 90.J chase's impeachment. 535 The articles charged misconduct on the trials of John Fries for treason, and James Thompson Callender for breach of the Sedition Law ; an improper attempt to induce a grand jury in Delaware to find an indictment against the editor of the " Mirror of the Times and General Advertiser," for breach of the Sedition Law ; and a perversion of his official right and duty to address a grand jury in Maryland, ' ' for the purpose of delivering to the said grand jury an intemperate and inflammatory political harangue, with intent to excite the fears and resentment of the said grand jury, and of the good people of Maryland against their state, government and constitution, a conduct highly cen- surable in any, but peculiarly indecent and unbecoming in a judge of the Supreme Court of the United States, and moreover, that the said Samuel Chase, then and there, under pretence of exercising his judicial right to address the said grand jury, as aforesaid, did, in a manner highly unwarrantable, endeavor to excite the odium of the said grand jury, and of the good people of Maryland against the government of the United States, by delivering opinions, which, even if the judicial authority were competent to their expression, on a suitable occasion in a proper manner, were at that time and as delivered by him, highly in- decent, extra-judicial and tending to prostitute the high judicial charac- ter with which he was invested to the low purpose of an electioneering partisan." As misconduct upon Fries' trial the respondent was charged with delivering an opinion in writing, on the question of law, upon the construction of which the defense of the accused materially depended, tending to prejudice the minds of the jury against the case of the defendant, before counsel had been heard in his defense; with restricting the defendant's counsel from referring to such English authorities as they believed apposite, or from citing certain statutes of the United States, which they deemed illustrative of the positions upon which they intended to rest the defense ; with debarring the prisoner from his consti- tutional privilege of addressing the jury on the law, as well as on the fact, and at the same time endeavoring to wrest from the jury their indisputable right to hear argument, and determine upon the question of law, as well as the question of fact, involved in the verdict which they were required to give. The allegations of fact 536 IMPEACHMENTS. [CHAP. XIII. as distinct from the legal conclusions in these charges were clearly- proven. Fries had been indicted for treason in taking part in the Whiskey Rebellion in Pennsylvania. On his first trial he was convicted, but a new trial was granted on account of the bias of one of the jurors. Upon his second trial in the Circuit Court of the United States in Philadelphia on April 29th, 1800, as soon as the Court opened. Judge Chase stated : — ' ' that the Court had made up their minds as to the law of Treason, and to avoid being misunderstood they had reduced their opinion to writing, and that they had directed three copies of the opinion to be made out ; one for the District Attorney, another for counsel for the prisoner and a third for the jury to be delivered to them after the case had gone through on the part of the prosecution."^^ The prisoner's counsel, two of the most eminent lawyers at the Philadelphia bar, Dallas and Lewis, thereupon stated, that as there was no dispute about the facts, and the only doubt was as regards the law, they could not proceed. On the following day, the pris- oner was brought to the bar, and the court asked the counsel whether they were ready to proceed vsrith the trial. "Mr. Lewis then observed, that if he had been employed by the prisoner, he would think himself bound to proceed; but having been assigned as his counsel — (He was interrupted by Judge Chase, who said, ' You are not bound by the opinion delivered yesterday, but are at liberty to contest it on both sides'). Mr. Lewis answered, that he had understood that the court had made up their minds as to the law, and as the prisoner' s counsel had a right to address the jury both on the law and the fact, it would place him in too degrading a situation to argue the case after what had passed, and, therefore, he would not pro- ceed with the defence. Judge Chase answered with impatience, ' You are at liberty to proceed as you think proper. Address the jury and lay down the law as you think proper.' Mr. Lewis answered, with considerable warmth, ' I will never address myself to the court upon a question of law in a criminal case.' He then went into a lengthy argu- ment upon the law of high treason in England, previous to their revo- lution, and contended that the courts, since that period, had considered themselves as bound by those decisions which were made prior to it. 12 Testimony of William Eawle, who was counsel for the prosecution on Chase's Impeachment Trial. § 90.] chase's impeachment. 537 Judge Chase observed, that the counsel must do as they please. Mr. Dallas then rose, and went into a general view of the ground, which had been taken by Mr. Lewis, and concluded with his determination not to proceed as counsel for Fries. Judge Chase observed, ' No opin- ion has been given as to the facts of the case. I would not suffer the witnesses against those persons charged with seditious combinations, to be examined before the trial of Fries came on, lest their evidence might have been heard by some of the jury. As to the law, I know that the trial before took a considerable time, and that cases at common law, and decisions in England before the Revolution of the law of treason, such as the case of the man whose stag the king killed, and wished the horns of the stag in the king's belly, and the case of the innkeeper, who kept the sign of the crown, and who said he would make his son heir to the crown. These cases ought not, and shall not go to the jnry. There is no case which can come before me on which I have not a decided opinion as to the law ; otherwise I should not be fit to preside here. I have always conducted myself with candour, gentlemen, and meant to have saved you trouble by what I did. Is it not respectable for counsel to say that they have a right to offer what they please to the jury? What! would you cite decisions in Rome, in Turkey, or in France? You will now proceed, and stand acquitted or condemned in your own consciences as you conduct the defense, and go on in your own way. The case wiU be opened by the attorney — the manner must be regulated by the court.' Judge Peters added, that the papers were all withdrawn. Mr. Lewis said, the paper was withdrawn, but the impressions remained with the jury ; he, therefore, should not act. A pause then ensued for a few moments, when Judge Chase said: ' You can't bring this court into difficulties, gentlemen ; you do not know me if you think so.' " " Dallas testified that Chase then told the counsel "that we might address the jury on the law, but it would be at the hazard of our reputation." ^* Both counsel then withdrew. Fries was convicted without coun- sel and sentenced to death. As his counsel, however, undoubtedly expected when they retired from the trial, in consequence of the irregularity of the proceeding, their client was pardoned by Presi- dent Adams. ^^ 13 Kawle's testimony on Chase's ^^ For this act he was severely crit- Impeachment Trial. icized by Hamilton and Pickering. " Dallas' testimony on Chase's Im- (Wharton's State Trials, pp. 640-648.) peachment Trial. 538 IMPEACHMENTS. [CHAP. Xin. The misconduct on Callender's trial, charged against the re- spondent, consisted in overruling a challenge to a juryman who wished to be excused from serving on the trial because he had made up his mind as to the publication from which the words, charged to be libellous in the indictment, were extracted ; in ex- cluding the evidence of a material witness of the defendant; in compelling the prisoner's counsel to reduce to writing, and submit to the inspection of the court, for their admission or rejection, all questions which they meant to propound to that witness ; in refus- ing to postpone the trial, although an affidavit was regularly filed, stating the absence of material witnesses on behalf of the accused, and although it was manifest that, with the utmost diligence, their attendance could not have been procured at that term; in the use of unusual, rude and contemptuous expressions towards the prisoner's counsel, and in falsely insinuating that they wished to excite the public fears and indighation and to produce that insubordination to law, to which the conduct of the judge did, at the same time, mani- festly tend ; with repeated and vexatious interruptions of the said counsel, on the part of the judge, which, at length, induced them to abandon their cause and their client, who was thereupon con- victed and condemned to fine and imprisonment ; in an indecent solicitude, manifested by the judge, for the conviction of the ac- cused, unbecoming even a public prosecutor, but highly disgraceful to the character of a judge as it was subversive of justice ; in refus- ing to follow the State laws on the subject of bail which it was claimed were made applicable by an act of Congress ; and in refusing to follow the State law on the subject of presentment of criminal in- dictments, which it was claimed had also been adopted by Congress. These last two charges were clearly ill-founded, since it is well settled that the acts of Congress directing that the laws of the several States as to the rights and remedies shall be followed at common law in the courts of the United States do not apply to criminal actions. If, however, a conviction had been obtained on them, an excuse might have been had for proceeding against Chief-Justice Marshall, who had himself made similar rulings to those charged against Chase.^^ Some of the other charges of misconduct on Callender's trial were frivolous ; since it seems 18 Adams, History of the United States, vol. ii, p. 25. § 90.J chase's impbachmen-t. 539 apparent from an examination of the trial that the application for a postponement was made more with the object of exciting sym- pathy for the accused, than with the idea that the witnesses whose testimony it was claimed was material, namely. President Adams, the Secretary of War, and several senators, would have aided the accused. Judge Chase's conduct, however, on the trial was so scandalous that it would have undoubtedly caused his conviction upon an impeachment at the present day. He had throughout the ease endeavored to secure a conviction. He had insulted eminent counsel, among others, William Wirt, to such a degree that they finally refused to continue the arguments in the course of which they had been interrupted. It was said that before the trial he had publicly announced "that he would teach the lawyers in Virginia the difference between liberty and the licentiousness of the press," and that he had told the marshal that if he had " any of those creatures or people called Democrats " on the panel of jurymen he should strike them off. He had constantly throughout the trial referred to counsel who were men of mature age, as " young gentlemen," in order to influence the jury by these as well as other sneers which abounded throughout the reports of the trial. When, on the con- clusion of the testimony for the United States, the counsel for the defendant called as a witness the celebrated John Taylor of Caro- line County, afterwards a senator of the United States, and the author of several important works on constitutional law, as soon as he was sworn, the judge demanded of them what they intended to prove by the witness. After they had told him, he ordered a previous statement in writing of the questions which they in- tended to put, and after this had been given, excluded the evi- dence of the witness. The libel had charged that the President of the United States was an aristocrat and had proved faithful and serviceable to the British interests. Taylor's testimony was offered to prove part of these charges in the libel. The court held that both the points must be proved, or neither of them, and that con- sequently the evidence was inadmissible. It did not appear at that time whether witnesses would be called to prove the other points of the libel, so that there can be little doubt of the outrageous impro- priety of the ruling. Callender was convicted and sentenced to a fine 540 IMPEACHMENTS. [chap. XIII. of f200 and an imprisonment of nine months. As soon as Jeffer- son was inaugurates! he was pardoned, as were the other victims of the Sedition Law.^^ It was clearly proven that the respondent at the term of the Circuit Court of the United States for the District of Delaware, held in June, 1800, used his best efforts to persuade the grand jury to find an indictment against the editor of the " Mirror of the Times and General Advertiser." The cause of this was a series of articles in which that paper had attacked President Adams and the Federalists in New England.^^ i' Supra, § 32, over notes 16 and 17. 18 The alleged libels upon which the grand jury refused to find in- dictments, although urged by Chase to do so, were as follows : Extract from the The Mirror of February 5th, 1800 : — " COMMUNICATION. " The Illuminati of New England are composed of certain ecclesiastics, who wish for political sway ; and of laymen in office, who wish for clerical influence to retain them in place ; by the means of the pulpit and sword ; or church and state. The senators and representa- tives in Congress from Connecticut, belong to the New England Illuminati, and obey the President of Yale, who rules with the united power of a teacher and ecclesiastic. Mr. Hillhouse guides the state treasury so far as to gain un- lawful and unconstitutional grants of money for the Illuminati. The wives of Messrs. Dwight, Hillhouse, and Davenport, of Congress, are cousins; Messrs. Goodrich are brothers — Messrs. "Wolcott of the treasury, and Griswold of Congress, are cousins ; as are Messrs. Griswold and Hillhouse ; Mr. Chaunoey Goodrich married the sister of Oliver Wolcott ; and Mr. Eleazar Goodrich married the sister of Mr. Allen, late of Congress. Thus are church and state, and the ties of blood and mar- riage united, to form an hierarchy and aristocracy in Connecticut, which some fail not to call a monarchy, controlled by Dr. Dwight. A desire for place, favor and power, conducts this system. Mr. Tracy and his son-in-law at home, are seeking for money and influence thro' this union. Mr. Tracy wishes to be a foreign envoy — Mr. Eleazar Good- rich is looking for the place of collector of the customs in New Haven. "President Dwight has a host of brothers, sons and cousins, who want employment. His brother Theodore wants to be a district attorney, and to have a seat in Congress, or the upper house in Connecticut. Tapping Eeeve, one of the Illuminati, and one of the judges of the superior court is a pro- moter of the tyranny assumed by mem- bers of Congress from Connecticut, in order to obtain the place of district judge. The above is a clue to the sedi- tion law — certain gentlemen did not wish to have their conduct and designs investigated at home; for this cause they have wished to destroy the Editor of the Bee, and introduce a system of terror." • Extract from the Mirror of February 8th, 1800 : — " COMMUNICATION. "In our last, we presented a 'clue' to the politics of Connecticut, from their desire to obtain place and favor. We now exhibit a clue to the New Hamp- shire aristocracy. The collector of the customs, loan officer, marshal, one of the §90.] chase's impeachment. 541 The charge to the grand jury in Maryland was delivered May 2d, 1803. It contained criticisms upon the conduct of the Demo- senators of Congress, and two of the rep- resentatives in that body, were old and avowed tories, and have ever continued to be such. The contractor for the na- val or ship building department was also a tory — he is brother to one of the rep- resentatives, whose sister is married to the district judge, (whose former re- spect for the independence of America is doubtful). These three gentlemen are allied to the President of Cambridge col- lege, who married the sister of the wife of the district judge, and of the naval contractor and one of the representa- tives. "The former tory senator is Mr. Livermore. The representatives are Messrs. Sheaff and Gordon ; the district judge is a Mr. Pickering ; the naval con- tractor is a Mr. Jacob Sheaff ; the mar- shal Is Mr. Rogers ; the loan officer is Mr. Pierce, a cousin to the late governor Wentworth, and the collector is Mr. Martin, whose wife is sister to Mr. Pierce. Dwight and Willard, as heads of literary institutions and ecclesiasti- cal societies, thus have the chief sway in Connecticut and New Hampshire. " These equivocal Whigs and old tories have the control in our national affairs ; are conspicuous in public processions; and wear the weed of mourning for Washington, whom they have often branded with the epithet of Rebel." Extract from the Mirror of rebmary 22d, 1800 : — " COMMUNICATION. " "We have presented the readers with a view of the New England Illuminati, and a clue to British, tory or monarch- ical influence, in New Hampshire and Connecticut, in which intolerance, and a want of due respect to the revolution and its promoters and defenders must be clearly seen. This formidable body are hedged round by, or shelter them- selves under the sedition law, tory mar- shals and juries, which may be packed out of British commissaries, and the plunderers of our farms, the murderers of our fathers, brothers and sons, or those who burned our churches, and laid waste our literary and benevolent insti- tutions during the last war." Extract from The Mirror of March 18th, 1800 : — " Por The Mirror, &c. " What are the fruits of John Adams's administration? He has engaged to pay 8 per cent on five millions of dollars. He has established a standing army, which besides its enormous expense of four millions and two hundred thousand dol- lars, keeps a number of citizens in fear of their lives. He has obtained an appropriation for supporting forti- fications, of 700,000 dollars. For the navy 1799, four millions three hun- dred and fifty thousand dollars, amount- ing in the whole to nine millions two hundred and fifty thousand dollars, exclusively of a number of volun- tary and unascertained subscriptions for building and equipping vessels of war, for which the subscribers receive interest, at 8 per cent. He has levied a direct tax, which in this state amounts to more than the whole of the tax paid into our state treasury. He has pro- cured the enaction of an alien and se- dition law, which are a curse to any country in which they exist. He has given orders to one of our judges to de- liver up Jonathan Robbins, an American seaman, to be tried by a British court martial, although the name of the per- son accused was Nash ; in direct con- tradiction to the laws of nations, and of our constitution. And finally he is to have a new loan of 3,500,000 dollars, for which he will be obliged to pay 8, and probably 10 per cent." (Chase's Im- peachment Trial, Evans' Report, Ap- pendix, pp. 58-60.) 542 IMPEACHMENTS. [CHAP. XIII. cratic party for having abolished the offices of Circuit Judges of the United States, the recent changes in the Constitution of Maryland which established universal suffrage, and the further changes contemplated in the judiciary of that State, which, it was said, — " will, in my judgment take away all security for property and personal liberty. The independence of the national judiciary is already shaken to its foundation, and the virtue of the people alone can restore it. The independence of the judges of this State will be entirely destroyed if the bill for abolishing the two supreme courts should be ratified by the next general assembly. The change of the State Constitution by allow- ing universal suffrage will in my opinion certainly and rapidly destroy all protection to property and all security to personal liberty, and our republican constitution will sink into a mobocracy, the worst of all pos- sible governments." The principal managers for the House of Representatives were John Randolph and Joseph Nicholson. Judge Chase's counsel were Luther R. Martin, R. G. Harper and Josephson Hopkinson, of whom Harper had taken part in the trials of both Blount and Pickering. They were far more than a match with the counsel for the prosecution. The answer of Chase, which was quite lengthy, was prepared with great ability. It admitted most of the facts charged in the articles of impeachment; but defended them by arguments well calculated to appeal to laymen as well as lawyers. Aaron Burr, who was then Vice-President, presided at the trial. The managers, especially John Randolph, displayed great weakness in their arguments, and were inconsistent as to the principles on which a conviction was demanded. Some of them contended that an impeachment was in the nature of an inquest of office, and that the respondent might be removed although not guilty of any crime, while others admitted that what in substance amounted to a crime must be proved before a conviction. The arguments of the counsel for the defendant were on the other hand able, vigorous and logical. The result was an acquittal upon all the charges ; unanimously on the article which charged his failure to follow, on Callander's trial, the law of Virginia as to bail ; by a majority of 30 to 4 on that which charged that in the same case he had refused to follow the law of Virginia pro- § 90. j peck's impeachment. 543 viding for the adjournment of criminal trials; and by a minority of more than one-third in his favor upon all other articles. The highest vote against him was 19 to 15 on the article in relation to his charge to the grand jury at Baltimore. The majority of the dominant party in the Senate was then more than two-thirds; but the manner in which the impeachment was conducted, and the fear that a conviction would result in further attacks on the Supreme Court of the United States were undoubtedly the reasons that induced a number of the Northern followers of Jefferson to vote for an acquittal. It is not likely that similar offenses, if committed by a judge at the present day, would remain unpunished. The result of the impeachment was, however, in one respect bene- ficial. Chase was harmless during the short period which he sur- vived upon the bench.^^ The next impeachment trial was that of James H. Peck, judge of the District Court of the United States for the District of Mis- souri, in 1830 and 1831. A large number of suits against the United States founded upon Spanish land claims were pending in his court. After an opinion in favor of the United States, in a suit against them by the widow and heirs of Antoine Soulard, in 1825, Luke Edward Lawless, the plaintiff's counsel, published an anonymous letter in a newspaper in which he temperately, and with no more unfairness than is usual in newspaper arguments, pointed 1' Beport cl the Trial ol the Hon. Samuel Butler and George Keatinge, Samuel Chase, one of the Associate 1805,pp. 268, with Appendix containing Justices of the Supreme Court of the the pleadings and exhibits, pp. 68. United States, before the High Court Trial of Samuel Chase, an Associate of Impeachment, composed of the Justice of the Supreme Court of the Senate of the United States, for United States, impeached by the charges exhibited against him by the House of Bepresentatives for High House of Bepresentatives, in the Crimes and Misdemeanors, taken in name of themselves, and of all the Shorthand by Samuel H. Smith and People of the United States, for High Thomas Lloyd, vol. i, pp. 387, and vol. Crimes & Misdemeanors, supposed ii, pp. 493, Washington City. Printed to have been by him committed ; with for Samuel H. Smith, 1805. History the necessary Documents and Ofacial of the United States by Henry Adams, Papers, from his Impeachment to vol. ii, pp. 148-159, 218-244. History final Acquittal. Taken in Shorthand, of the United States by John Bach by Charles Evans, and the Arguments McMaster, vol. iii, pp. 162, 168, 173, of Counsel revised by them from his 181, 182. Manuscript. Baltimore: Printed for 544 rMPEACHMENTS. [CHAP. XIH. out certain errors into which, he claimed the judge had fallen when rendering that decision. The decision was subsequently reversed by the Supreme Court of the United States.^" Judge Peck, as soon as he read the article, brought Lawless before him by an at- tachment, abused him for some time in open court, held him guilty of contempt and ordered his imprisonment for twenty-four hours and suspension from the bar of that court for eighteen calendar months, the result of which was to practically prevent him from any further prosecution of Spanish land-claims, since the time allowed for their prosecution expired during or shortly after his term of punishment. Lawless immediately complained to the House of Representatives. In 1826, the House Committee on the Judiciary, one of whom was Daniel Webster, reported that the petitioner should have leave to withdraw. Two years later, the petition was again presented and referred to the Judiciary Com- mittee, but no report was made. Finally, in 1829, when the mat- ter was again referred to them, the Judiciary Committee reported in favor of an impeachment, which was accordingly voted and tried. The managers of the House were James Buchanan, afterwards President of the United States, Henry R. Storrs and Ambrose Spen- cer of New York, George McDufEe of South Carolina and Charles A. Wickliffe of Kentucky. The counsel for the respondent were William Wirt and Jonathan Meredith. The case was tried with great ability on both sides. The best discussion on the subject of impeachable offenses with which the writer is acquainted may be found in the arguments on the trial, especially in those of Wick- liffe, Buchanan and Wirt. It appears clearly that the English authorities justified Judge Peck in punishing a criticism upon his decision as a contempt of court. It seemed to the Senate that he was at least justified in assuming that such power existed ; and that there was no such clear proof of malice in its exercise as would justify his conviction. He was consequently acquitted by a vote of '22. of guilty to SJ of not guilty. Daniel Webster voted with the majority, and Hayne of South Carolina with the minority .^^ 20 Soulard 1). TJ. S., 4 Peters, 510; District Court for the District of s. c. 10 Peters, 100. Missouri, before the Senate of the 21 Eeport of the Trial of James H. United States, on an impeachment Peck, Judge of the United States preferred by the House of Kepresenta- § 90.] HUMPHREYS' IMPEACHMENT. 545 The result was the passage of a law limiting the power of the Courts of the United States to punish for contempt to " the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in the oflScial trans- actions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the said courts. "^^ When the Southern Confederacy was formed, S. H. Humphreys, district judge of the United States for the district of Tennessee, accepted and discharged the duties of a similar position under the Confederate Government without resigning the ofSce held by him under the United States. He was consequently impeached and tried before the Senate in June, 1862. The articles charged him with a public speech inciting revolt and rebellion against the Con- stitution and Government of the United States, and a public declaration therein of the right of secession ; with support, advo- cacy and "agreement in tlie ordinance of secession ; with organizing armed rebellion against the United States ; with joining in a con- spiracy to oppose by force the authority of the Government of the United States ; with a refusal to hold court ; and with unlawfully acting as judge of the Confederate District Court, in which charge there were three specifications of unlawful arrest, imprisonment and confiscation. Judge Humphreys was served by leaving the process at his house and by publication. He made no appearance and was tried in his absence, in the same manner as if a plea of not guilty had been entered. Amongst other witnesses in support of the impeachment were Andrew Johnson, who was subsequently impeached when President of the United States, and the well-known Parson Brownlow, afterwards governor of Tennessee. The judge was convicted on all the charges except the specification concerning tives against him for High Misde- suggested by a similar statute passed meanors in office. By Arthur J. Stans- In Pennsylvania after the acquittal of bury, Boston. Published by Hilliard, the judges who were impeached for Gray & Co., 1833, pp. 592. the imprisonment of Passmore. See 22 Act of March 2, 1831, 4 St. at L., Appendix to this volume. Similar stat- p. 487; TJ. S . Kev. St., § 725 ; Foster's utes have been passed in many of the Federal Practice, § 341. This statute ' different States, was introduced by Buchanan, and was 546 IMPEACHMENTS. [CHAP. XIH. the arrests and confiscation ; sentenced to removal and disqualifi- cation to hold any office.^ The impeachment trial of President Johnson is the most re- markable event in the annals of jurisprudence. Never before had an attempt been made to remove the chief executive of a nation under the forms of law. Despotism tempered by assassi- nation had prevailed in many countries. In England and in France, kings had been given the form of a trial before their exe- cution ; but in each case the tribunal which pronounced the con- demnation had no foundation in law nor jurisdiction over the ac- cused, and the proceedings were as irregular and as destitute of legal sanction as those before the lynch courts which condemn cattle-thieves in our frontier States. Then, for the first time, did a court of justice with full jurisdiction determine whether the chief executive magistrate of a nation had committed such of- fenses as justified his removal from oifice. And although the accused was obnoxious to a large majority of the people, the tribunal over which the Chief-Justice of the United States pre- sided paid due respect to the solemnity of the occasion, kept the proceedings free from all unfairness and irregularitj^, and the President was acquitted by the votes of men with no sympathy, for his feelings, his political tenets, or his personal character. The assassination of Lincoln displayed for the third time the weakness of that part of the Constitution which regulates the succession to the presidency. Andrew Johnson, a man of coarse habits and defective education, had been nominated with him as a mark of sympathy with the Southern loyalists. Formerly a Dem- ocrat with strong views on the subject of State rights, it was only natural that he should sympathize with his neighbors in the South and lack harmony with the measures adopted by the victorious North for the reconstruction of the Union and the government of the States that had formed the Southern Confederacy. Soon after his accession to power, he collided with both Houses of Congress ; and by the use of the powers of appointment, pardon and veto, did his best to strengthen his own position.^* Two-thirds of both 23 Trial of Judge Humphreys, Con- ^ See supra, § 38. gressional Globe, 2d Session, 37th Congress, Part IV, pp. 29i2-2%53. § 90.] JOHNSON'S IMPEACHMENT. 547 Houses of Congress enacted law after law over his veto. So it seemed as if his tenure of office depended upon their will. On January 7th, 1867, James M. -Ashley of Ohio submitted the following preamble and resolution, which were passed by a large majority of the House of Representatives : — " I do impeach Andrew Johnson, Vice-President and acting President of the United States, of high crimes and misdemeanors. I charge him with a usurpation of power and violation of law : In that he has cor- ruptly used the appointing power ; in that he has corruptly used the pardoning power ; in that he has corruptly used the veto power ; in that he has corruptly disposed of public property of the United States ; in that he has corruptly interfered in elections, and committed acts and conspired with others to commit acts, which, in contemplation of the Constitution, are high crimes and misdemeanors. " Tlierefore, be it resolved. That the Committee on the Judiciary be, and they are hereby, authorized to inquire into the official conduct of Andrew Johnson, Vice-President of the United States, discharging the powers and duties of the office of President of the United States, and to report to this House whether, in their opinion, the said Andrew Johnson, while in said office, has been guilty of acts which were designed or calcu- lated to overthrow, subvert, or corrupt the Government of the United States, or any department or officer thereof ; and whether the said Andrew Johnson has been guilty of any act, or has conspired with others to do acts, which, in contemplation of the Constitution, are high crimes or misdemeanors, requiring the interposition of the constitutional powers of this House ; and that said committee have power to send for persons and papers and to administer the customary oath to witnesses." A month later, the Committee on the Judiciary reported that they had examined a large number of witnesses and documents, but not having completed the investigation, deemed it inexpedient to submit any conclusion beyond the statement that sufficient tes- timony had been brought to its notice to justify and admit a fur- ther prosecution of the investigation. On March 4th of the same year, a new Congi'ess assembled. On the motion of Mr. Ashley, the House resolved that the Judiciary Committee when appointed should continue the investigation authorized by the resolution passed during the last session of the former Congress. In No- vember, the reports of the Committee were presented. The ma- jority reported a resolution directing the impeachment of President 548 IMPEACHMENTS. [CHAP. XUI. Johnson because of his failure to call a special session of Congress on the final surrender of the Confederate forces, his acts in recognizing without statutory authority the governments in the States which had been the seat of the rebellion, his public sub- stantial denial of the right of Congress to provide for the Recon- struction, his abuse of the powers of veto, appointment, removal, and pardon, his attempts to prevent the ratification of the Four- teenth Amendment, his public statements encouraging resistance to the scheme of Reconstruction directed by Congress, his dispo- sition of captured railroads and other property, and his use of the army to disperse a lawful assembly of citizens in Louisiana. A minority, which was composed of Republicans as well as Democrats, submitted two reports with a resolution directing that the committee be discharged from further consideration of the proposed impeachment, and that the subject be laid upon the table. The proposed impeachment was voted down by a large majority.^ The proceedings had accomplished for the time their object — the intimidation of the President into the execution of the Reconstruc- tion acts which he considered unconstitutional. Meanwhile a bitter quarrel was brewing between Jolmson and Stanton, who was then Secretary of War, holding over since Lin- coln's administration. A year before. Congress had passed over the veto of the President the Tenure of Office Act. This placed a restraint upon the removal of officers by the Executive, which, in the opinion of many of the best lawyers, was unconstitu- tional.26 With an evident view to an impeachment in case of disobedience to the act, a section had been added, making such disobedience a high misdemeanor. The act provided, "That every person holding any civil office to which he has been ap- pointed by and with the advice and consent of the Senate and every person who shaU hereafter be appointed to any such office, and shall 25 McPherson, History of the Ee- bridge, botli of wliom were Kepubli- construction, pp. 187-190; Blaine, cans, contains an able discussion of Twenty Years in Congress, vol. ii, tbe subject of impeachment. Swpra, pp. 340-347 ; House Reports, 40th § 38. Cong., 1st Session, No. 7, Nov. 25, ss This subject will be discussed 1867. The minority report of James subsequently under the Executive F. Wilson and Frederick E. Wood- Power. § 90. J TENURE OP OPEICE ACT. 549 become duly qualified to act therein, is, and shall be, entitled to hold such ofHce until a successor shall have been in like manner appointed and duly qualified, except as herein otherwise provided : Provided, That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster General and the Attorney-General shall hold their offices respectively for and during the term of the President by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate." ' ' That when any officer appointed as aforesaid, excepting judges of the United States courts, shall, during the recess of the Senate, be shown, by evidence satisfactory to the President, to be guilty of mis- conduct in office, or crime, or for any reason shall become incapable or legally disqualified to perform its duties, in such case, and in no other, the President may suspend such officer, and designate some suitable person to perform temporarily the duties of such office until the next meeting of the Senate, and until the case shall be acted upon by the Senate ; and such person, so designated, shall take the oaths and give the bonds required by law to be taken and given by the person duly appointed to fill such office ; and in such case it shall be the duty of the President, within twenty days after the first day of such next meeting of the Senate, to report to the Senate such suspension, with the evidence and reasons for his action in the case and the name of the person so des- ignated to perform the duties of such office. And if the Senate shall concur in such suspension, and advise and consent to the removal of such officer, they shall so certify to the President, who may thereupon remove such officer, and, by and with the advice and consent of the Senate, appoint another person to such office. But if the Senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office, and the powers of the per- son so performing its duties in his stead shall cease, and the official salary and emoluments of such officer shall, during such suspension, belong to the person so performing the duties thereof, and not to the officer so suspended : Provided, however, that the President, in ease he shall become satisfied that such suspension was made on insufficient grounds, shall be authorized, at any time before reporting such suspen- sion to the Senate as above provided, to revoke such suspension and reinstate such officer in the performance of the duties of his office." "That the President shall have power to fill all vacancies which may happen during the recess of the Senate, by reason of death or resigna- tion, by granting commissions which shall expire at the end of their next session thereafter. And if no appointment, by and with the ad- 550 IMPEACHMENTS. [CHAP. XIH. vice and consent of the Senate, shall be made to such office so vacant or temporarily filled as aforesaid during such next session of the Senate, such oflBce shall remain in abeyance without any salary, fees, or emolu- ments attached thereto, until the same shall be filled by appointment thereto, by and with the advice and consent of the Senate ; and during such time all the powers and duties belonging to such office shall be exercised by such, other officer as may by law exercise such powers and duties in case of a vacancy in such office." ^ As first introduced and passed in the Senate, the bill expressly excepted cabinet officers from its operation, and an amendment to include them was voted down. In the House such an amendment was adopted after considerable discussion .^^ The Senate refused by a large majority to concur in it. Upon a conference a sub- stitute was adopted declaring that the members of the cabinet ' ' shall hold their office respectively for and during the term of the President by whom they may have been appointed, and for one month thereafter subject to removal by and with the advice and consent of the Senate." In the course of the debate. Senator Sherman, who was a mem- ber of the conference committee, said : — ' ' "We provide that a cabinet minister shall hold his office, not for a fixed term, not until the Senate shall consent to his removal, but as long as the power that appoints him holds the office." ^ After the passage of the bill, it was claimed, however, by Stan- ton and his supporters, that Johnson had no power to remove the cabinet officers, including the Secretary of War, who were holding over after the death of Lincoln, and had not been reappointed. On August 5th, 1867, the President wrote to Stanton : — "Public considerations of a high character constrain me to say that your resignation as Secretary of War will be accepted." Mr. Stanton replied immediately acknowledging the receipt of the letter and adding : — ' ' I have the honor to say that public considerations of a high char- si" 14 St. at L., p. 430. 29 ibid., pp. 353-356. 28 Blaine, Twenty Years in Con- gress, vol. ii, pp. 269-274. § 90.] IMPEACHMENTS. 651 acter which alone have induced me to continue at the head of this De- partment, constrain me not to resign the Secretaryship of War before the next meeting of Congress." On August 12th, 1867, Johnson suspended Stanton from his office under the Tenure of Office Act, and appointed General Grant secretary of war ad interim. Stanton replied denying the Presi- dent's right to suspend him without the advice and consent of the Senate, and vrithout legal cause : — '' but inasmuch as the general commanding the armies of the United States has been appointed ad interim, and has notified me that he has accepted the appointment, I have no alternative but to submit under protest to superior force." When the Senate met in December, the President notified it of the suspension, with his reasons. The Senate refused to concur in the same. Thereupon, General Grant at once surrendered the War Department to Stanton. The President accused Grant of bad faith in this ; and claimed, what Grant denied, that he had prom- ised to hold the office and thus aid in bringing the case before the Supreme Court of the United States for determination.^" On February 21st, 1868, the President wrote the following let- ters, which were the immediate cause of his impeachment : — ' ' Executive Mansion, "Washington, D.C, February 21, 1868. SiE : By virtue of the power and authority vested in me as President by the Constitution and laws of the United States, you are hereby re- moved from oflSce as Secretary of the Department of War, and your functions as such will terminate upon receipt of this communication. You will transfer to Brevet Major General Lorenzo Thomas, Adjutant General of the army, who has this day been authorized and empowered to act as Secretary of War ad interim, all records, books, papers, and other public property now in your custody and charge. Respectfully yours, Andrew Johnson. Hon. E. M. Stanton, Washington, D.C." " Executive Mansion, Washington, D.C, February 21, 1868. Sir : Hon. Edwin M. Stanton having been this day removed from «> Blaine, Twenty Tears in Congress, vol. ii, pp. 348-351. 552 IMPEACHMENTS. [CHAP. XIII. office as Secretary for the Department of War, you are hereby authorized and empowered to act as Secretary of War ad interim, and will imme- diately enter upon the discharge of the duties pertaining to that office. Mr. Stanton has been instructed to transfer to you all the records, books, papers and other public property now in his custody and charge. Respectfully yours, Andrew Johnson. To Brevet Major General Lorenzo Thomas, Adjutant General, United States Army, Washington, D.C." The President informed the Senate of liis action upon the same day. Stanton refused to surrender his ofSce to General Thomas, who demanded possession and remained in control of the Depart- ment. The Senate forthwith passed a resolution declaring, — "that under the Constitution and Laws of the United States, the Presi- dent has no power to remove the Secretary of War, or to designate any other officer to perform the duties of that office ad interim." On the same day a resolution for the impeachment of the Presi- dent was introduced in the House of Representatives and referred to the Committee on Reconstruction. The next morning Thomas was arrested before breakfast by the marshal of the district under a warrant issued by the Chief- Justice of the District Supreme Court, upon an affidavit by Stanton, charging a violation of the Tenure of Office Act. A writ of habeas corpus was immediately issued by the same judge that granted the warrant, and upon its return that day Thomas was discharged from custody upon giving five thousand dollars bail.^^ Meanwhile the Committee on Reconstruction reported to the Hoiise a recommendation that Johnson be impeached. The debate occupied the entire day until the adjournment of the House to February 24th, the intervening day being Sunday. On Monday, February 24th, 1868, a resolution for the impeachment of Presi- dent Johnson passed the House of Representatives by a strict party vote of 126 to 47. The following members of the House were elected managers of the impeachment: John A. Bingham, 81 Johnson's Impeachment Trial, vol. i, 427-441, 515-517. § 90.] AETICLES AGAINST JOHNSON. 553 George S. Boutwell, John F. Wilson, Benjamin F. Butler, John A. Logan and Thaddeus Stevens.^^ The articles of impeachment were eleven in number. They charged in eight different articles, which stated the same facts in different legal form, the attempted removal of Stanton and ap- pointment of Thomas as a violation of the Tenure of Office Act, and " An act to define and punish certain conspiracies, approved July- Si, 1861." The ninth article charged that on February 22d, 1868, the President brought before himself, William H. Emery, a General of the Army in command at the department at Washington, and instructed him that the act, which provided that " all orders and instructions in relation to military operations issued by the Presi- dent or Secretary of War, shall be issued through the General of the Army, and in case of his inability through his next in rank," ^ was unconstitutional ; with intent thereby to induce Emery in his oificial capacity as the commander of the department at Washing- ton, to violate the provisions -of the said act and to take and receive, act upon and obey such orders as he the said Andrew John- son might make and give, and which should not be issued through the General of the army of the United States, according to the provisions of said act, and with the further intent thereby to enable the President to prevent the execution of the Tenure of Office Act and to unlawfully prevent Stanton from continuing to hold the office of Secretary of War. "That said Andrew Johnson, President of the United States, un- mindful of the high duties of his office, and the dignity and proprieties thereof, and of the harmony and courtesies which ought to exist and be maintained between the executive and legislative branches of the government of the United States, designing and intending to set aside the rightful authority and powers of Congress, did attempt to bring into disgrace, ridicule, hatred, contempt, and reproach the Congress of the United States, and the several branches thereof, to impair and destroy the regard and respect of all the good people of the United States for the Congress and legislative powers thereof, (which all offi- cers of the government ought inviolably to preserve and maintain) , and to excite the odium and resentment of all the good people of the '2 Blaine, Twenty Years in Con- ss Supra, § 38, over note 95. gress, vol. ii, pp. 350-363. 554 IMPEACHMENTS. [CHAP. XIH. United States against Congress and the laws by it duly and constitu- tionally enacted; and in pursuance of his said design and intent, openly and publicly, and before divers assemblages of the citizens of the United States, convened in divers parts thereof to meet and receive said Andrew Johnson as the Chief Magistrate of the United States, did, on the eighteenth day of August, in the year of our Lord one thou- sand eight hundred and sixty-six, and on divers other days and times, as well before as afterward, make and deliver, with a loud voice, cer- tain intemperate, inflammatory, and scandalous harangues, and did therein utter loud threats and bitter menaces, as well against Congress as the laws of the United States, duly enacted thereby, amid the cries, jeers, and laughter of the multitudes then assembled and in hearing, which are set forth in the several specifications hereinafter written, in substance and effect, that is to say : " Specification First. — In this, that at Washington, in the District of Columbia, in the Executive Mansion, to a committee of citizens who called upon the President of the United States, speaking of and con- cerning the Congress of the United States, said Andrew Johnson, Pres- ident of the United States, heretofore, to wit, on the eighteenth day of August, in the year of our Lord one thousand eight hundred and sixty- six, did, in a loud voice, declare, in substance and effect, among other things, that is to say : " ' So far as the executive department of the government is con- cerned, the effort has been made to restore the Union, to heal the breach, to pour oil into the wounds which were consequent upon the struggle, and (to speak in common phrase) to prepare, as the learned and wise physician would, a plaster healing in character and co-exten- sive with the wound. "We thought, and we think, that we had partially succeeded ; but, as the work progresses, as reconstruction seemed to be taking place, and the country was becoming reunited, we found a dis- turbing and marring element opposing us. In alluding to that element I shall go no further than your convention, and the distinguished gen- tleman who has delivered to me the report of its proceedings. I shall make no reference to it that I do not believe the time and occasion justify. " 'We have witnessed in one department of the government every endeavor to prevent the restoration of peace, harmony and union. We have seen hanging upon the verge of the government, as it were, a body called, or which assumes to be, the Congress of the United States, while, in fact, it is a Congress of only a part of the States. We have seen this Congress pretend to be for the Union, when its every step and § 90.] ARTICLES AGAINST JOHNSON. 555 act tended to perpetuate disunion and make a disruption of the States inevitable. * * * We have seen Congress gradually encroach, step by step, upon constitutional rights, and violate, day after day, and month after month, fundamental principles of the government. We have seen a Congress that seemed to forget that there was a limit to the sphere and scope of legislation. We have seen a Congress in a minority assume to exercise power which, allowed to be consummated, would result in despotism or monarchy itself.' " Specification Second. — In this, that at Cleveland, in the State of Ohio, heretofore, to wit, on the third day of September, iu the year of our Lord one thousand eight hundred and sixty-six, before a public as- semblage of citizens and others, said Andrew Johnson, President of the United States, speaking of and concerning the Congress of the United States, did, in a loud voice, declare, in substance and effect, among other things, that is to say : " ' I will tell you what I did do. I called upon your Congress that is trying to break up the government.' " 'In conclusion, besides that, Congress had taken much pains to poison their constituents against him. But what had Congress done ? Have they done anything to restore the union of these States ? No ; on the contrary, they had done everything to prevent it ; and because he stood now where he did when the rebellion commenced, he had been denounced as a traitor. Who had run greater risks or made greater sacrifices than himself? But Congress, factious and domineering, had undertaken to poison the minds of the American people.' ' ' Specification Third. — In this, that at St. Louis, in the State of Missouri, heretofore, to wit, on the eighth day of September, in the year of our Lord one thousand eight hundred and sixty-six, before a public assemblage of citizens and others, said Andrew Johnson, President of the United States, speaking of and concerning the Congress of the United States, did, in a loud voice, declare in substance and effect, among other things, that is to say : " ' Go on. Perhaps if you had a word or two on the subject of New Orleans you might understand more about it than you do. And if you will go back — if you will go back and ascertain the cause of the riot at New Orleans, perhaps you will not be so prompt in calling out New Orleans. If you will take up the riot at New Orleans, and trace it back to its source or its immediate cause, you wiU find out who is responsible for the blood that was shed there. If you will take up the riot at New Orleans and trace it back to the radical Congress, you will find that the 556 IMPEACHMENTS. [CHAP. XIH. riot at New Orleans was substantially planned. If you will take up the proceedings in their caucuses you will understand that they there knew that a convention was to be called which was extinct by its power having expired ; that it was said that the intention was that a new govern- ment was to be organized, and on the organization of that government the intention was to enfranchise one portion of the population, called the colored population, who had just been emancipated, and at the same time disfranchise white men. When you design to talk about New Orleans you ought to understand what you are talking about. When you read the speeches that were made, and take up the facts on the Friday and Saturday before that convention sat, you will there find that speeches were made incendiary in their character, exciting that por- tion of the population, the black population, to arm themselves and prepare for the shedding of blood. You will also find that that con- vention did assemble in violation of law, and the intention of that con- vention was to supersede the reorganized authorities in the State gov- ernment of Louisiana, which had been recognized by the government of the United States ; and every man engaged in that rebellion in that convention, with the intention of superseding and upturning the civil government which had been recognized by the government of the United States, I say that he was a traitor to the Constitution of the United States, and hence you find that another rebellion was commenced, having its origin in the radical Congress. " ' So much for the New Orleans riot. And there was the cause and the origin of the blood that was shed, and every drop of blood that was shed is upon their skirts, and they are responsible for it. I could test this thing a little closer,, but will not do it here to-night. But when you talk about the cause, and consequences that resulted from proceedings of that kind, perhaps, as I have been introduced here, and you have provoked questions of this kind, though it does not provoke me, I will tell you a few wholesome things that have been done by this radical Congress in connection with New Orleans and the extension of the elec- tive franchise. "I know that I have been traduced and abused. I know it has come in advance of me here as elsewhere, that I have attempted to ex- ercise an arbitrary power in resisting laws that were intended to be forced upon the government ; that I had exercised that power ; that I had abandoned the party that elected me, and that I was a traitor, because I exercised the veto power in attempting, and did arrest for a time, a bill that was called a ' Freedman's Bureau ' bill ; yes, that I was § 90.] ARTICLES AGAINST JOHNSON. 55T a traitor. And I have been traduced, I have been slandered, I have been maligned, I have been called Judas Iscariot, and all that. Now, my countrymen, here to-night, it is very easy to indulge in epithets ; it is easy to call a man Judas and cry out traitor ; but when he is called upon to give arguments and facts he is very often found wanting. Judas Iscariot — Judas. There was a Judas, and he was one of the twelve apostles. Oh! yes, the twelve apostles had a Christ. The twelve apostles had a Christ, and he never could have had a Judas un- less he had had twelve apostles. If I have played the Judas, who has been my Christ that I have played the Judas with? Was it Thad. Stevens? Was it Wendell Phillips ? Was it Charles Sumner ? These are the men that stop and compare themselves with the Saviour ; and everybody that differs with them in opinion, and to try to stay and an-est their diabolical and nefarious policy, is to be denounced as a Judas. . . . ' " ' Well, let me say to you, if you will stand by me in this action, if you will stand by me in trying to give the people a fair chance — soldiers and citizens — to participate in these offices, God being willing, I will kick them out. I will kick them out just as fast as I can.' " Let me say to you, in concluding, that what I have said I intended to say. I was not provoked into this, and I care not for their menaces, the taunts, and the jeers. I care not for threats. I do not intend to be buUied by my enemies nor overawed by my friends. But, God willing, with your help, I will veto their measures when any of them come to me.' " Which said utterances, declarations, threats, and harangues, highly censurable in any, are peculiarly indecent and unbecoming in the Chief Magistrate of the United States, by means whereof said Andrew John- son has brought the high office of the President of the United States into contempt, ridicule, and disgrace to the great scandal of all good citizens, whereby said Andrew Johnson, President of the United States, did com- mit, and was then and there guilty of a high misdemeanor in office." °* "That said Andrew Johnson, President of the United States, un- mindful of the high duties of his office, and of his oath of office, and in disregard of the Constitution and laws of the United States, did, here- tofore, to wit, on the eighteenth day of August, A.D. eighteen hundred and sixty-six, at the city of Washington and the District of Columbia, by public speech, declare and affirm, in substance, that the thirty-ninth Congress of the United States was not a Congress of the United States authorized by the Constitution to exercise legislative power under the 8* Johnson's Impeachment Trial, Article X, pp. 8-9. 558 IMPEACHMENTS. [CHAP. XEII. same, but, on the contrary, was a Congress of only part of the States, thereby denying, and intending to deny, that the legislation of said Congress was valid or obligatory upon him, the said Andrew Johnson, except in so far as he saw fit to approve the same, and also thereby denying, and intending to deny, the power of the said thirty-ninth Congress to propose amendments to the Constitution of the United States ; and in pursuance of said declaration, the said Andrew Johnson, President of the United States, afterwards, to wit, on the twenty-first day of February, A.D. eighteen hundred and sixty-eight, at the city of Washington, in the District of Columbia, did, unlawfully, and in dis- regard of the requirements of the Constitution, that he should take care that the laws be faithfully executed, attempt to prevent the execution of an act entitled ' An act regulating the tenure of certain civil ofllces,' passed March second, eighteen hundred and sixty-seven, by unlawfully devising and contriving, and attempting to devise and contrive means by which he should prevent Edwin M. Stanton from forthwith resuming the functions of the office of Secretary for the Department of War, notwithstanding the refusal of the Senate to concur in the suspension theretofore made by said Andrew Johnson of said Edwin M. Stanton from said office of Secretary for the Department of War ; and also, by further unlawfully devising and contriving, and attempting to devise and contrive means, then and there, to prevent the execution of an act entitled ' An act making appropriations for the support of the array for the fiscal year ending June thirtieth, eighteen hundred and sixty-eight, and for other purposes,' approved March second, eighteen hundred and sixty-seven ; and, also, to prevent the executfon of an act entitled ' an act to provide for the more efficient government of the rebel States,' passed March second, eighteen hundred and sixty-seven, whereby the said Andrew Johnson, President of the United States, did, then, to wit, on the twenty-first day of February, A.D. eighteen hundred and sixty- eight, at the city of Washington, commit, and was guilty of, a high misdemeanor in office." ^^ The defense of the President was managed with great tact and skill. He himself did not appear at the tvial.^ His leading 36 Johnson's Impeachment Trial, to be tried according to the forms Article XI, p. 10. of the English law, —or as Judge 38 "I had brought it to the atten- Chase had been tried when Aaron tion of the board of managers that Burr presided over the Senate, — we should have Mr. Johnson brought and required by the presiding officer in and placed at the bar of the Sen- to stand until the Senate offered him ate, — and required by the Senate a chair. But our board of managers § 90.] JOHNSON'S COUNSEL. 559 counsel, who introduced tlie testimony offered in his support, was the former attorney-general, Henry Stanbery, who resigned in order to defend him. He was an old Whig who had attained great eminence at the bar in Ohio. Having advised the President throughout the course of events which led to his impeachment, he was thoroughly familiar with all the arguments, decisions, and evidence that could be used in his defense. He possessed a remarkable faculty of clear and compact reasoning. Illustra- tions may be found in his arguments before the Supreme Court on constitutional questions when attorney-general, many of which are reported by Wallace. This proceeding was a fitting termina- tion of his public life ; for the Senate, after the trial, refused to confirm his renomination. So that he sacrificed his posi- tion by his devotion to his chief. Another was Benjamin R. Curtis, who, as Justice of the Supreme Court of the United States, had written the dissenting opinion in the Dred Scott case, which was the repository of the arguments in support of the con- . stitutional views of the Free Soil party. Shortly after rendering that decision, he had resigned and returned to practice in Massa- chusetts, where, until his death, he was constantly retained in the cases of most importance, not only before the State Supreme Court, but also in other States, and before the Supreme Court of the United States. At his death, he was considered by his breth- ren in Massachusetts to be the leader of the American bar. His arguments on questions of law were famous for the manner in which he would present, without a superfluous word, every sug- gestion that could aid his cause. That which has been praised the most was his opening for the defense of President Johnson. It is said that as soon as he was retained by the President he pur- chased the English State Trials and read through the reports of all that had taken place before the House of Lords. With him was associated William M. Evarts, afterwards attorney-general, secre- tary of state, and senator of the United States. He was then the acknowledged leader of the bar of New York, where the competition is sharper than in any other place in the world. He possessed not only learning, but unusual tact in the management of a case, skill in was too weak in the knees or back son did not attend." (Butler's Book, to insist upon this, and Mr. John- p. 929.) 560 IMPEACHMENTS. [CHAP. Xm. unfolding a legal argument and reiterating the same point in differ- ■ ent language, together with wit to enliven it, and hold the atten- tion, — faculties indispensable to great success before a large audience. To these talents he owed his triumphs in the great- est trials of his generation, which were the most important that the world has ever seen. He was on the winning side on the im- peachment trial of President Johnson, before the Electoral Com- mission, and at the Geneva Arbitration. The close of his political career was marked by the passage of the Evarts Act; which relieved the Supreme Court of the United States from the accu- mulation of work, that made it impossible for them to com- plete and discharge the duties imposed on them by statute, and created the Circuit Courts of Appeals. He, like Curtis, was a Republican. Although it was said by many that his concluding speech con- tained not a single argument that had not been advanced in the opening of Curtis,^^ which was so admirable as a presentation of questions of law to trained legal minds ; yet its wit, its appeals to the motives which often unconsciously influence men's judg- ments, and at times its eloquence, made it undoubtedly more effective upon the ordinary senator. The famous Jeremiah S. Black was at one time counsel for the President, but at the last moment he withdrew. Two Democratic lawyers were retained. William S. Groesbeck of Cincinnati, Ohio, who had been a Democratic representative in Congress, contributed a masterly argument upon the legal ques- tions in the case. A confidential friend from his own State, Ten- nessee, Thomas A. R. Nelson, was added by Johnson in order that the President might present those views of the Constitution which he himself had most at heart; although in the conduct of the trial, no other attention was paid to them. Great pains were taken to conciliate public opinion. On the day following Stanton's removal. General Thomas Ewing, formerly a senator from Ohio, was nominated as his successor. Ewing's nomination was of course rejected ; but his position in the Repub- 3' " It is due to the truth of history was said in his behalf, although in the to say, as herebefore remarked, that five or six closing speeches presented after he had presented the case of his by his other counsel, much else was client, in my Judgment, nothing more said." (Ibid., p. 930.) § 90.] JOHNSON'S TRIAL. 561 lican party, and his war record were such as to indicate to the public that Johnson had no intention to corrupt the army and use military force to aid the South in their struggle for repre- sentation. Throughout the trial all of his counsel but Nel- son confined themselves to the presentation of the questions of statutory and constitutional law raised by the articles; to the construction of the Tenure of Oifice Act, the power of Congress to enact it, and the power of the Senate to impeach a President for bad taste in his speeches on the stump ; upon all of which public opinion in the North was not excited; thus avoiding the questions as to the power of the House and the Senate to exclude representatives from the States which had lately been in rebellion, the constitutionality of the Reconstruction Acts, and other questions as to which the voters had recently shown that they were not in sympathy with the administration. At the opening of the case, before the answer of the President was filed. Senator Davis of Kentucky moved the adoption of the following order : — ' ' The Constitution having vested the Senate with the sole power to try the articles of impeachment of the President of the United States preferred by the House of Kepresentatives, and having also declared that ' the Senate of the United States shall be composed of two Sena- tors from each State chosen by the legislatures thereof,' and the States of Virginia, North Carolina, South Carolina, Georgia, Alabama, Mis- sissippi, Arkansas, Louisiana, and Texas, having each by its legislature chosen two senators who have been and continue to be excluded by the Senate from their seats respectively, without any judgment by the Senate against them personally and individually on the points of their elections, returns and qualifications, it is " Ordered, That a Court of Impeachment for the trial of the Presi- dent cannot be legally and constitutionally formed while the senators from the States aforesaid are thus excluded from the Senate ; and this case is continued until the Senators from these States are permitted to take their seats in the Senate, subject to all constitutional exceptions to their elections, returns, and qualifications severally." The counsel for the President offered no argument and no con- currence in this motion, which was defeated by a vote of 49 to 2.^^ ^ Johnson's Impeachment Trial, p. 36. The noes were Garrett Davis, and McCreery, of Kentucky. 662 IJI PKAO H J[ KXTS. [chap. xiir. Cliief-Justioe Chase pivsided with great impai'tialitv ; and Ids decisions ou points of evidence ■vvei'e fi-equently o\eiruled by the Republican majority of the Senate. The ans\\er of the President was short and clear. It rested his defense upon tJie legiU ques- tions ^\■hich ha\e been stated above, and which were undoubtedly the grounds of his acquittal. The case was opened by Genei-al Butler, one of the nianagei-s of the House of Representatives.^ His argument was extremely adroit, and was acconijianicd by a learned brief upon the law of impeachable crimes and misdemean- ors, prepai-ed by William Lawrence, a member of Congress from Ohio, ^^■hic,h is of great ^■alue to all students of the subject. But- ler's examination of the witnesses of the House was mai^terly. botli for what he brought out, and for tlie iniumer in which lie displayed to the audience and public mattei-s reflecting upon the President, which were excluded as incompetent.'"' The lionore 39' 'When the board of managers met, Thaddeus Siovous of Pennsyl- vania, the ' great Commoner,' as ho was styled, wished to be ohoseji ohair- man of tlio board, as ho had dnnvn up one of the artioles of iiiiviotiohmout. ■While ho was a \ory great nitvn, ho M-as very erratic, and the majority of the board was in favor of tho appoint- ment of the Hon. Geo. S. Boutwoll, of Massachusetts, afterwards Secretary of tlie Treasury, or of the Hon. John A. Bius:;han\, of Ohio. And I suppose it is no harm to slate at this day, that considerable neriniony arose between the managers on tlie subject. I took no part in this because I was desirous of having my own place in the fli«t presentation of tho case to the Senate. This would insure my putting the evi- dence before the Senate in the trial. The House insisted upon immediate prosecution. We had but tlireo days then in which to got our case ready and prepai-e the opening arguments for its presentation before the highest court of justice in tlie laud. We spent most of the morning over the question of selecting the chief manager, — In selecting the Hon. Thaddeus Stevens, chairman of tlie board, who was to make the closing lu-gumeut in behalf of the House. That having been set- tled, I said : ' But who is to make the opening argumeut, and put the ease in form for presentation in the Seuate'i' There are loss than three days in which to prepare il. Who is anxious tor that place? ' There wore not many eaudi- datos for this labor, and I said : • Very well, I suppose, as usual, tlie opening of the ease will fall upon the youugest counsel, and tlial is mysell'.' The mem- liei-s of the boai"d unanimously sold : • Will you undertake it? ' • Yes, if the board desires it, and no one else will ha\o it, I will,' It was agreed upon that I should prepare the case and make the opening argument, and I Uiought that il would not be of much consequence after that was done who did tho rest. And thus I became the leading flguie of tho impeachment, for better or worse." (Butler's Book, pp. ',)'J7-1)2S.) *" "The morning after the opening of the argument, I asked one of the board of managers, a very clever gen- tleman, to have the kindness to offer a piece of written ovldouoe, but lils § 90.] JOHNSON'S TlilAh. 663 of the impeachment were carried off by liim ; although the con- cluding arguiuoiit of John A. Uinghani was perhaps that wMch displayod tlie moat oratoricnil ahility. Butler upoiiod the case for the House on March SOtli, and the trial contiiiuod almost daily until May6tl\, 18(iS, \vl\on tlie wliole caso was submitUMl to the Senate. A low days woro occupied in the settlement of the form of the question and the practice upon tlie Judgment, and there was a short, adjoiirument, on aciumnt of the illness of one of the senators. At tlio Senate conference it appeared that two at least of those who were in favor of a uonviction were unwilling to sustain the articl(> which charojed a violation of the Tenure of Ollice Act, since (.lu>y l)elicvivlot>8." (Hiitlor'ss Book, pp. oluaton to try tJlO onso upon tho »iinio !)ai) ItMO.') rultva of ovUioMoo, mul iu the samo ^i l\)lilioiil Loadoi-s of the Koi'on- nuuiner iia I slionld 1 ry a liorso ciuso, strucllon PiM-iod, by E. 0. Uoss, Tho will I kiunv how to do tliat. I tlioro- Fornni, vol. xx. pp. 'JIS, 225; (Ipinion foro wns not in Iropldution. Wliou 1 of Sonalor Sl\ormaji, Johnson's Trial, dlsoussod lliattiuostlon with tho man- vol. Ill, p. 1 ; Opinion of Senator Howo, n}{>'i's tliey aoiMni-d to bo a jjooil deal Ibid., p. 5S. out up. Thoy said: 'This Is tl>o " .lohnson's Iniponohmont Trial, (iroatost onso of tho timos, and it la vol. 11, p. li^l. Moriun-son, History of to bo oonduoted in tho highost, possl- tho Uofonstrnotion, p. 382. bio raaniior." ■ Yoa,' 1 said, ' and tliat ^^ Bliilno, Twenty Yonrs ii\ Oon- Is auoonUug to law ; tiiat Is tlio only gross, vol. 11, p. 375. An attempt to 564 IMPEACHMENTS. [CHAP. XIII. suit. The court then adjourned without a day, and the Chief Justice entered a judgment of acquittal upon these thi-ee articles. Twenty-nine senators afterwards filed opinions in justification of their votes. The minority included eight Democrats and four Re- publican supporters of the administration whose votes for an ac- quittal were in accordance with their political position. The scale was turned, however, by seven Eepublicans who had, hitherto, op- posed the policy of the President ; ** and who by this action sacrificed their hopes of a political future. For most of them disobeyed the in- structions of their State legislatures or of the leaders of the State organizations of their party; and in consequence lost all chances of a re-election. The reputation of one or two may lend color to the suspicion that they were influenced by improper con- siderations. But the character and position of the rest, who thus in obedience to their oaths cast away the objects of their ambition, put the integrity of their motives beyond all question. Their judgment was given because their consciences would not permit judicial action in opposition to their convictions. And 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 impeachments.*^ expel him on the charge of having sold Three Decades of Federal Leglsla- his vote was afterwards projected, but tion, pp. 582-593, gives an interesting abandoned. Political Leaders of the account of an interview between the Keconstruction Period, by E. G. Koss, President and senator Grimes of Iowa The Forum, vol. xx, p. 227. at the rooms of Keverdy Johnson, " William Pitt Fessenden of Maine, during the trial, when Andrew John- Joseph S. Fowler of Tennessee, James son expressed his views of his politi- W. Grimes of Iowa, John B. Hender- cal duty in such a manner as to con- son of Missouri, Edward G. Koss of vince the senator that his continuance Kansas, Lyman Trumbull of Illinois in ofQee would not be injurious to and Peter G. Van Wynkle of West the country. Cox also claims to have Virginia. influenced Henderson's vote. The offi- 15 Blaine, who voted for the im- cial report is Trial of Andrew Johnson, peachment when in the House, eight President of the United States, before years later pronounced his Judgment the Senate of the United States, on that the proceedings were not justified Impeachment for High Crimes and and the acquittal proper (Blaine, Misdemeanors. Published by Order Twenty Years in Congress, vol. ii, of the Senate. Washington : Govem- pp. 375-383). Mr. Justice Miller was ment Printing Office, 1868. Three vol- of the same opinion (Lectures on the umes. Vol. i, pp. 741 ; vol. ii, pp. 498 ; Constitution, p. 172). S. S. Cox in his vol. iii, pp. 401. § 90.] Belknap's impeachment. 565 The next impeachment trial before the Senate of the United States would seem like an anti-climax, were it not for the dis- graceful nature of the charge, the important constitutional ques- tion which it raised, and the wonderful ability which the counsel on both sides displaj'ed. In 1876, in the course of an investigation by a committee of the House of Representatives, it appeared that the Secretary of War, Wilham W. Belknap, had for several years been receiving between f 6,000 and $12,000 annually out of the proceeds of a post- tradership, the incumbent of which had been appointed by him. Belknap, as soon as the fact had been discovered, resigned, and his resignation was accepted by President Grant. Upon the same day, but a few hours later than the acceptance of the resignation, he was impeached. He was tried during the spring and summer of that year between April 5th and August 1st, when judgment was pronounced. The managers on the part of the House were Scott Lord of NcAV York, J. Proctor Knott of Kentucky, W. T. Lynde of Wisconsin, John A. McMahon of Ohio, Elbridge G. Lapham of New York, and George Frisbie Hoar of Massachusetts. His counsel were Matthew H. Carpenter, formerly senator of the United States, Jeremiah S. Black, formerly attorney-general of the United States and justice of the Supreme Court of Pennsylvania, and Montgomery H. Blair. Five articles of impeachment were presented, each of which charged the transaction in different form, but in sjibstance as the acceptance of bribes. A plea was filed to the jurisdiction upon the ground that, at the time of the impeachment, ^elknap was not an officer of the United States. The plea was overruled by the vote of a majority of less than two-thirds. The counsel for the respondent refused to plead further, but the case continued under the Senate rules as if a plea of not guilty had been filed, the wit- nesses were examined and cross-examined, and arguments made upon the whole case by counsel for both sides. Upon the final vote, nearly all the senators who had voted in support of the plea, voted " not guilty " upon the ground that they had no juris- diction, and consequently Belknap was acquitted, since the ma- jority vote of guilty was less than two-thirds. All but one of the senators ^ who voted for an acquittal were members of the « William W. Eaton of Connecticut. His successor was a Eepublican. 566 IMPEACHMENTS. [chap. XIII. Republican party, to which Belknap belonged. A number of Re- publican senators, however, voted with the other Democrats in the Senate in favor of his conviction. The report of the trial is in- teresting, and the arguments of Hoar for the prosecution, and Carpenter and Black for the defense, are masterpieces of forensic eloquence.*'' § 91. Persons Subject to Impeachment. The Constitution says : " The President, Vice-President, and all civil officers of the United States shall be removed from Office on Impeachment for and Conviction of Treason, Bribery or other high Crimes and Misdemeanors." ^ Upon Blount's impeachment it was claimed by the managers from the House of Representatives that these words were not restrictive of the power of impeach- ment conferred in the preceding article ; and that private citizens or even State officers might be impeached ^ as in England, where *'' Proceedings of the Senate sitting for the trial of William W. Belknap, Late Secretary of War, on the Articles of Impeachment exhibited by the House of Representatives, 44th Con- gress, 1st Session. Washington : Gov- ernment Printing OfQce, 1876, pp. 1166. The questions of law are discussed imfra, §§ 91-92. § 91. 1 Article II, Section 4. 2 "The Constitution has said who shall have the power to impeach and who of trying impeachments. It has also limited the extent of the punish- ment. But it has not described the persons who shall be the objects of impeachment, nor defined the cases to which the remedy shall be confined. We cannot do otherwise, therefore, than presume, that upon these points we are designedly left to the regula- tions of the common law. Sir, in the very threshold, has not this law given us the foundation upon which we stand? AVhere have we looked for the form of the pleadings, which has brought the present question before the Court? And if, sir, a question of evidence should arise, as happened upon a former occasion, should we hesitate as to the law which ought to determine its competency? If we were asked, whether a greater loose- ness in pleadings on impeachment were not allowed, than in suits at law, we should answer in the afBrma- tive ; and if it were inquired, whether the rules of evidence were more lax, we should answer in the negative; and in such opinions, I trust, we should not be contradicted by the learned counsel of the party impeached, and yet, sir, the opinions could alone be collected from the rules of the common law. It is, perhaps, worthy of observation, that even as it regards those persons who are clearly liable to impeachment, there is no direct provision, which subjects them to it. Thus in the 4th section of the 2d article, which has the closest connec- tion with the point, it has not said that the President, Vice-President, and civil officers, shall be liable to impeachment; but taking it for granted that they were liable at com- ^ 91.] PERSONS SUBJECT TO IMPEACHMENT. 567 the only limitation is that a commoner cannot be impeached for a mon law, has introduced an impera- tive proyision as to their removal upon conviction of certain crimes. The question, therefore, is, what persons, for what offences, are liable to be impeached at common law? And I am confident, as to this point, the learning and liberality of the counsel will save me the trouble of argument, or the citation of authorities, to es- tablish the position, that the question of impeachability is a question of dis- cretion only, with the Commons and Lords. Not that I mean to insist, that the Lords have legal cognizance of a charge of a capital crime against a commoner, but simply that all the King's subjects are liable to be im- peached by the Commons, and tried by the Lords, upon charges of high crimes and misdemeanors. And this, sir, goes to the extent of the articles exhibited against William Blount. And for my part, I do not conceive it would have been sound policy to have laid any restriction as to person upon the power of impeaching. It is not difacult to imagine a case in which the punishment it imposes would be the most suitable which could be in- flicted. Let us suppose, that a citizen not in oface, but possessed of ex- tensive influence, arising from popu- lar arts, from wealth or connec- tions, actuated by strong ambition and aspiring to the first place in the Government, should conspire with the disaffected of our own country, or with foreign intriguers, by illegal artifice, corruption or force, to place himself in the Presidential Chair. I would ask in such a case, what punish- ment would be more likely to quell a spirit of that description, than absolute and perpetual disqualifica- tion for any oflice of trust, honour or profit under the Government; and what punishment could be better calculated to secure the peace and safety of the State from the repetition of the same offence? " (Manager Bayard in Blount's Impeachment, Wharton's State Trials, pp. 265, 266.) "Nor can I conceive how the uni- versal extent of the power of impeach- ment, contended for by my honorable colleague, is contrary to the spirit, the objects, or the policy, either of the law of impeachment, or of the Federal Constitution. The use of the law of impeachment is to punish and thereby prevent offences which are of such a nature as to endanger the safety, or injure the interests of the United States : and the object of the Federal Constitution was to pro- vide for that safety, and to protect those interests. Such offences may be committed, as well by persons out of office, as by persons in office; and although the punishment can go no further than removal and disqualifi- cation, which restriction was, perhaps, wisely introduced in order to prevent those abuses of the power of impeach- ment which had taken place in an- other country, yet it may often be extremely important to prevent such offenders from getting into office, as well as to remove them when they are in; and it is, therefore, as con- sistent with the policy of impeach- ments, and the principles of the Fed- eral compact, to punish them in the one case as in the other. This doc- trine, it is further said, would enable Congress to interfere with the State governments, by impeaching their offi- cers. But those impeachments must be founded on offences against the United States; and if such offences were committed by State officers, I cannot see why they ought not to be punished, as well as in any other case. 668 IMPEACHMENTS. [chap. xni. capital offense.^ This contention was easily refuted by the coun- sel for the defendant* and rejected by the judgment of the Surely they would not be less danger- ous. It the convictions in such im- peachments, could remove men from State offices, or disqualify them for holding such offices, there might be something in the objection ; but that could not be the case, since the re- moval and disqualification apply to offices under the general government alone." (Manager Harper in Blount's Impeachment, Whaiton's State Trials, pp. 300-301.) 8 2 Woodeson's Lectures, p. 601. The same rule prevails in France (Loi Con- stitutionnelle sur les Rapports des Pou- voirs Publics, 16-28 Juillet 1875, Art. 12) : " Le President de la Kepublique ne pent etre mis en accusation que par la Chambre des deputes et ne peut etre juge que par le Senat. Les Ministres peuvent etre mis en accusation par la Chambre des deputes pour crimes com- mis dans I'exercice de leurs fonctions. En ce cas, lis sont jugSs par le Senat. Le Senat peut etre constitue en cour de justice par un decret du President de la Rgpublique, rendue en conseil des ministres, pour juger toute personne prgvenue d'attentat commis centre le suret6 de I'Etat. Si I'instruction est commencee par la justice ordinaire, le d6cret de convocation du Sfinat peut etre rendu jusqu'^ I'arret de renvoi. Une loi determinera le mode de pro- ceder poar I'accusation, I'instruction et le jugement." Loi relative a I'Organiza- tion des Pouvoirs Publics, 25-28, F6v- rier 1875, Art. 6 : . . . "Le President de la Republique n'est responsable que dans le cas de haute trahison." See Bur. gess. Political Science and Comparative Constitutional Law, vol. i, Appendix, pp. 336-337, 334; ibid., vol. ii, pp. 291-292, 300-304; Lebon, Das Staatsrecht der Franzosischcn Republik, § 55. < " Independent of all precedent and authority, the distinction was founded upon the very nature of a free govern- ment. The Legislature is, in theory, the people: they do not themselves as- semble, but they depute a few to act for them ; and the laws which are thus made are the expressions of the will of the people. Over their Representa- tives, the people have a complete control, and if one set transgress they canappoint another set, who can rescind and annul all previous bad laws. But the power of the people is only to make the laws ; they have nothing to do with executing them ; they have nothing to do with expounding them ; and hence arises the diversity in the modes of remedying any grievance, which they may suffer from the conduct of their Representa- tives or agents. If a Legislator acts wrong, he may be expelled before the term for which he was chosen has ex- pired ; he may be rejected at the next periodical election; and the laws which he has sanctioned may be repealed by a new representation. But if an Execu- tive or a Judicial magistrate acts wrong, the people have no Immediate power to correct; prosecution and impeachment are the only remedies for the evil. Then, it is manifest, that by the power of impeachment, the people did not mean to guard against themselves, but against their agents ; they did not mean to exclude themselves from the right of re-appointing, • or pardoning; but to restrain the Executive magistrate from doing either with respect to officers, whose offices were held independent of popular choice. The subject is made more plain, by two considerations: — 1st, that although either House may expel a member, they cannot (on the principles of the Constitution, without any express prohibition) expel him twice for the same cause : 2d, that the President is not empowered to pardon in cases of impeachment. In the case §91.] PERSONS SUBJECT TO IMPEACHMEKT. 569 Senate.* The maxim of construction that the expression of one thing is the exclusion of another, clearly controls. The Constitu- tion is a grant of limited powers for Federal purposes only. The object of the grant of the power of impeachment was to free the commonwealth from the danger caused by the retention of an unworthy public servant. A further extension might be danger- of expulsion, the member Is sent to the people, but if they choose to return him again, he has a perfect title to his seat. In the case of an impeachment, the de- linquent officer is dismissed; on the general power of the Executive he might be reappointed; but to guard against the abuse of that power, the Constitution superadds a sentence of perpetual disqualification." (A. J. Dal- las, respondent's counsel in Blount's Impeachment, Wharton's State Trials, p. 281.) " That the Constitution of the United States, limited in its Legislative and Executive powers to certain enumerated objects, as well as in its judiciary, where a jury constitutes a part of its adminis- tration of justice, should be left without bounds in this hazardous proceeding by impeachment only, is grossly improb- able, and, I trust, unfounded. Con- trary, I am sure, to the spirit, and, I think, also to the letter of the Consti- tution. Let us trace the operation of this principle. A State officer is liable to impeachment, in the Senate of the State. Is he liable at the same time, and for the same ofEence, to impeach- ment in the Senate of the United States t Will an acquittal in one be a bar in the other 1 In disputes between the powers and relative jurisdictions of State and United States, the same rea- sons may induce an acquittal in the former and a condemnation in the lat- ter. Would not this occasion a Babel, a confusion of constitutions, a monster of jurisprudence ? In jurisdictions not emanating from the same authority, where a party had not his choice, the citizen is liable, it is said, to successive trials, and contradictory determina- tions, for one offence. The distant in- habitant is amenable, we are told, at the bar of this Court, for every species of offence, at the distance of a hundred or a thousand miles from his vicinage, to whom the prosecution itself would be ruin, and here must submit to the awful discretion of the Senate whether he shall retain his honour or be doomed to disgrace, recorded and transmitted to posterity, upon your archives, as un- worthy the offices of Government, and, in part, reduced from the rank of a cit- izen. I have said, sir, to the discretion of the Senate ; because it is perfectly well known that, not only in the deline- ation of the ofience by the prosecutors, but also in the construction of it by the judge, a Court of Impeachment is not tied down by such strict rules as, in common cases, before a court and jury, give personal security. Improvident citizens: They have taken care that they shall not be subjected to a fine of one shilling, or to imprisonment of their bodies for one hour, but, in conse- quence of a verdict of the neighbor- hood; at the same time that it is sug- gested, their honour they have not se- cured with equal precaution. The sug- gestion I undertake to say, is unfounded. The mistake is not in the people, but in these who impute to them so great an inadvertency." (Jared Ingersoll, coun- sel for the respondent in Blount's Im- peachment, Wharton's State Trials, pp. 287-288.) 5 Blount's Impeachment, Whar- ton's State Trials, p. 316. 570 IMPEACHMENTS. [CHAP. XIH. ous, would certainly be oppressive, and could scarcely conceivably be of use.^ Only the President, Vice-President and " civil Officers of the United States," then, can be impeached. Who are civil officers of the United States ? The word " civil " is used in contradis- tinction to military.'' Consequently, officers of the army and navy are exempt from impeachment. "The reason for excepting military and naval officers is, that they are subject to trial and punishment according to a peculiar military code, the laws, rules, and usages of war. The very nature and efficiency of military duties and discipline require this summary and exclusive jurisdiction ; and the promptitude of its operations is not only better suited to the notions of military men, but they deem their honor and their reputation more safe in the hands of their brother officers than in any merely civil tribunal. Indeed, in military and naval affairs it is quite clear that the Senate could scarcely possess competent knowledge or experience to decide upon the acts of military men. So much are these acts to be governed by mere usage and custom, by military disci- pline and military discretion, that the Constitution has wisely committed the whole trust to the decision of courts- martial." ' li Bayard, in Blount's Impeachment, against the President's will, remove "Wharton's State Trials, pp. 273-277; from office. " Harper, ibid., pp. 287-292. In Belknap's Impeachment Trial, ' Harper in Blount's Impeachment, Manager Jenks said (pp. 172-173) : Wharton's State Trials, 302, 305 ; " Now, why should it be that a civil IngersoU, ibid., p. 290; Story on the officer should be impeachable rather Constitution, § 791; Cf., Blaokstone, than a military officer? Is the one vol. i, pp. 332, 396, 408, 417. more dangerous than the other? 8 Story on the Constitution, § 792 ; Were the framers of the Constitution citing Kawle on the Constitution, more careful to guard one than the oh. xxi. Mr. William Lawrence of other? No. They simply took this Ohio, however, said in his brief for into consideration : This provision the House of Bepresentatives upon simply meant that it was imperative Johnson's Impeachment (vol. i, p. 124, that on impeachment for certain note) : " In England, naval and mill- crimes of a high grade civil officers tary officers are impeachable. If a should be removed. Why not military military or naval officer here should officers? Because military talent is conspire with the President to over- of a peculiar character. One man in throw Congress, the impeachment of an army may not represent only one both would be a necessary protection, man, but his name may be good for which it may be doubted if the Con- a thousand, ten thousand or more, stitution intended to surrender. In Suppose you take the case of the Duke such case a court-martial would not, of Marlborough — a man noted per- §91.] PERSONS StTBJECT TO IMPEACHMENT. 571 The meaning of the phrase, " officer of the United States," is more doubtful. The question was discussed with great ability on the trial of the impeachment of Senator "William Blount, for try- ing to corrupt an Indian agent and interpreter, and induce him to alienate the Indians from the United States.^ Pending the im- peachment, Blount was expelled by the Senate for the same offense. His plea that the Senate had no jurisdiction, which was filed subsequently to his expulsion, was sustained by a vote of four- teen to eleven and the impeachment dismissed.^" As is said by Wharton, " in a legal point of view, all that this case decides is, that a Senator of the United States who has been expelled from his seat is not after such expulsion subject to impeachment." ^^ haps for his avarice — a man who, if he had been prosecuted for ofQeial malpractice under our Constitution, would have been removed from of&ee had this power been extended to military officers as well as civil offi- cers; but to remove the Duke of Marlborough from the head of the armies of England would have been equivalent to yielding her place as a military nation in the face of the world. So there is a reason why military officers should not be neces- sarily removed. You may remove them. If the demands of the Republic require you should remove them you should do it, but you are not com- pelled by the Constitution to do it. That is why it was made applicable to civil officers alone, and in reference to civil officers, we have daily and hourly indications that if the very best of civil officers were to be re- moved, highest or lowest, abundance of people would spring up, numerous as the frogs of Egypt, fully competent and amply willing to fill the places. It was restricted as to military officers because of the character of the duties theyhaji^e to perform ; it was restricted as to naval officers for the same reason; and it was not, as I appre- hend, for the cause suggested by Judge Story ; that there were courts- martial to try their crimes. The spirit of our institutions is that the people shall at the time hold their hand on every officer in the United States. As to those that were elected by themselves, Congressmen, they placed it in the power of Congress to remove them. As to those that re- presented the States, they placed it in the power of those representing the States to remove them. That is, they held the power of removal all the time, directly or indirectly, and in- trusted it to no single individual. As to the officers of the United States, -who are those under the Executive, they meant to hold the same hand upon them, and they did hold it. They meant that the military, the maritime, and the civil alike shall be subject to impeachment and trial, and that if it is necessary this court can drag from his height the military hero, or may draw from his depths the depredating custom-house officer. This is the view we take of this, and nothing more." 9 Blount's Impeachment, Wharton's State Trials, pp. 200-321 ; supra, § 90. w Ibid., p. 316 ; supra, § 90. 11 Ibid., p. 317, note. 572 IMPEACHMENTS. [CHAP. XIIL The fact of the expulsion, however, played little part in the argu- ment.i^ The main questions discussed were whether persons not civil officers of the United States could be impeached, which was necessarily negatived by the decision ; and whether a senator is such an officer. The practical construction and the better opinion since has been that neither a senator nor a member of the House of Representatives can be impeached.^^ The only remedy for the misconduct of a member of either House of Congress during his term of office is expulsion by his colleagues.^* This construction seems clear from the letter as well as the spirit of the Constitution. In every other instance but one, the full meaning of which is doubtful,^*^ where the word " officer " is used, the context shows clearly that a member of Congress is not included. The President — "shall Commission all the Officers of the United States,"" "by and with the Advice and Consent of the Senate shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointment* are not hereiu otherwise provided for, and which shall be estab- lished by Law."" "No Senator or Representative shall during the Time for which he was elected be appointed to any civil Office under the Authority of the United States, which shall have been created or the Emoluments whereof shall have been increased during such time, and no Person holding any office under the United States, shall be a Member of either House during his Continuance in Office.^' " No Senator or Representative or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."" When we consider the object of impeachment, the meaning is still more clear. The remedy was provided as a check upon the President by the removal of an unworthy officer and the prevention of his reappointment to any office. This appears by the punish- 12 See Dallas, ibid., p. 284; Inger- i5 Article I, Section 9. See Inger- soll, ibid., p. 296. soU in Blount's Impeachment, Whar- fs Eawle on the Constitution, p. ton's State Trials, p. 295, 296 ; quoted, 203 ; Story on the Constitution, §§ 793, infra, § 92, note 13. 795 ; Manager George Prisbie Hoar in w Article II, Section 3. Belknap's Case, p. 186; quoted, infra, i' Article II, Section 2. , note 20. is Article I, Section 6. " See the section on Expulsion, " Article II, Section 1. imfra. §91.J PERSONS SUBJECT TO IMPEACHMENT. 573 ment, -which is limited to that and goes no further. Inasmuch as the President and Vice-President were not chosen by the people, but by the Electoral College, a provision to prevent their subsequent eligibility to office seemed also expedient. For the removal of an unworthy senator or representative, the power of expulsion was conferred upon their respective houses. It was not intended to allow either house to regulate the membership of the other. Nor did the people intend impeachment as a check upon themselves.^" 2" A. J. Dallas, respondent's coun- sel in Blount's Trial, Wharton's State Trials, p. 281. See also ibid., p. 278; Jared Ingersoll, respondent's counsel, ibid., p. 293 and passim. " Is it to be tolerated — can two branches of a leg- islative body dwell together under the Constitution in peace if one of them has the constitutional preroga- tive to lay its hand upon a member of the other and force that body to which he belongs to put him on trial for an abuse of that very legislative office to which he was elected? " (Manager George Frisbie Hoar in Bel- inap's Case, p. 186.) "The Senator is not an officer of the United States; the Congressman is not an officer of the United States. Why? In the formation of our Govern- ment three elements entered. There ■were the people, the States, and the General Government. The people are represented by the Congressmen; they receive their commissions di- rectly from the people. They are the officers of the people of a State, and not of the United States. They may •do official duty with reference to the United States, as some other State officers do now; but they are still officers of the State. The Senators represent the sovereignty of the several States; they represent the States, and as such are officers of the States, and not of the United States. So that a Senator is not impeachable, in that he is not an officer of the United States. A Congressman is not impeachable, in that he is not an officer of the United States, but an officer of the people of a State. It leaves it, then, that those cognizable before this Court are only those who are the Government officers of the United States ; who are officers alike for every State; who receive their powers alike from every State, directly or indirectly, who are commissioned by the people of all the States, or who are commissioned by some person re- presenting the people of all the States. So that the officers of the United States are those included in the execu- tive department of th^ Government, and every officer of that executive de- partment we conceive to be impeach- able before this tribunal." (Manager George A. Jenks in Belknap's Case, p. 172.) See, however, the very able arguments of Bayard and Harper to the contrary, in Blount's Case, Whar- ton's State Trials (pp. 266-272, 302- 314). In the conventions which rati- fied the Constitution, General Charles Cotesworth Pinckney and Governor Bandolph, who were active members of the Federal Convention, spoke as if a senator could be impeached (Elliot's Debates, 2d ed., vol. iv, pp. 263-265. See also ibid., vol. iii, p. 202. See also ibid., vol. iii, p. 402). The Speaker of the House cannot be impeached. In re Speakership of the House of Eepre- sentatives, 15 Col., 520. 574 IMPEACHMENTS. [CHAP. Xin. § 92. Impeacliment after Expiration of Ofllclal Term. A more difficult question is still undecided. Can an officer of the United States be impeached after he is out of office for his acts while in office ? The point was thoroughly discussed in the case of William W. Belknap, who was impeached in 1876 for receiving bribes while Secretary of War. On March 1st, 1876, he was in- formed by the Chairman of the Committee of the House on the expenditures of the War Department, which was then conducting an investigation, that he would be impeached unless he resigned before the meeting of the House at noon on the following day. At about ten o'clock in the morning of March 2d he presented his resignation to President Grant, who accepted it. At eleven o'clock he notified the committee of his resignation. Later in the day the House of Representatives resolved that he be impeached. A majority of the Senate upon his trial overruled his plea to the jurisdiction, and held that he was subject to impeachment. This question was decided by a vote of thirty-seven to twenty-nine. Upon the final vote as to his conviction of the charges, thirty-six senators voted for, and twenty-five against the conviction, and he was consequently acquitted for want of a condemnation by two- thirds of the Senate. But three senators voted for Ins acquittal upon the express ground that the charges were not proven.^ Nearly all the rest assigned as reasons that they believed the Senate had no jurisdiction ; that upon the final vote they were judges of both the law and the fact ; and that consequently they could not conscientiously vote for his conviction in a case which they thought they had no right to decide. The arguments in support of the jurisdiction to impeach an officer after he is out of office for his acts while in office were sub- stantially as follows : The grant of the power of impeachment, in the first article of the Constitution,^ is absolute and unlimited by its terms. Consequently, the power of impeachment here is as ex- tensive as in England. The provision in the second article that §92. 1 Senators Oglesby, Patterson, no reason for his vote. This case is and Wright. Senator Conover gave also described supra, § 90. '^ Article I, Sections 2 and 3. § 92.] LIABILITY OP POEMEK OPFICEES. 575 "The President, Vice-President, and ail Civil Officers of the United States, shall be removed from Office on Impeachment for, and Convic- tion of Treason, Bribery, or other High Crimes and Misdemeanors," is not a limitation upon the previous provision for impeachment, but merely a direction that in case of the impeachment of the President, Vice-President, or civil officers of the United States, the defend- ant, on conviction of the offenses named, must be removed from office ; whereas, in other cases, the Senate may impose a less pen- alty than removal from office, such as censure or suspension for a term of years.^ This argument proves too much ; since, if the povrer of impeach- ment under the Constitution is co-extensive with that in England, private citizens who have never held office may be impeached, as was Sacheverell,* and so may senators and representatives. Blount's case and the practical construction since have settled the rule to the contrary.® The power of impeachment is granted for the public protection in order to not only remove, but perpetually disqualify for office a person who has shown himself dangerous to the commonwealth by his official acts. The object of this salutary constitutional pro- vision would be defeated, could a person by his resignation from office obtain immunity from impeachment. It was said that in the United States, a resignation of a public office, when duly filed or ' presented, is valid without the acceptance of anyone.^ If accept- ance by the President is necessary to make a resignation take effect, the President would then have the power indirectly to pardon an impeachable offense, which the Constitution expressly withholds from him.'' 2 Manager George A. Jenks, in Bel- managers of the House of Eepresenta- knap's Case, pp. 154-155 ; Manager tives in Belknap's case (Manager Scott George Frisbie Hoar, ibid., pp. 192- Lord, Belknap's Case, p. 109 ; Mana- 193 ; and arguments of other managers ger George A. Jenks, Belknap's Case, and opinions of senators who voted p. 171 ; Manager George Frisbie Hoar, for conviction, passim. Belknap's Case, p. 179). * Howell's State Trials, vol. xv, p. 1. " Manager George Frisbie Hoar in 8 Supra, § 90. That Blount's Case Belknap's Case, pp. 195-196 ; citing settled that no senator or represen- Whittemore's Case. See supra, § 71. tative could be impeached, and that Contra, Edwards v. V. S., 103 TJ. S., no private citizen can be impeached 471; Mechem on Public Officers, § 414. except for an act done under an ' Article II, Section 2. official capacity, was conceded by the 576 IMPEACHMENTS. [CHAP. Xin. If it be conceded that in any case a person can be convicted by the Senate upon an impeachment when out of office, the rule must apply to all. No arbitrary point of time can be selected, before which, by resignation, he can be absolved from the con- sequences of his high crimes and misdemeanors, and after which he cannot. Consequently, if the view maintained on behalf of the respondent is correct, a public officer may resign his office dur- ing an impeachment, after his conviction, at any time before the sentence has been actually pronounced. That would be to render the whole proceedings nugatory and absurd. It cannot be that the Constitution warrants such an absurdity.^ The last part of this argument seems not beyond dispute. There is a wide distinction between an exit from office pending an im- peachment and one before. After the jurisdiction of the court has once attached, by the vote of the House of Representatives that an officer be impeached, it may well be claimed that no sub- sequent act by him or by the President can divest it. That this was so appears to have been the opinion of a number of senators who thought the Senate had no jurisdiction over Belknap.^ The third point of the argument seems the strongest. The language of the Constitution providing that a civil officer of the United States can be impeached, it is true, limits the jurisdiction to the officers named in that section of the Constitution. The jurisdiction granted, however, is over the person who is the officer; and attaches to him for the rest of his life. There is certainly no express provision in the Constitution, nor does its language neces- sarily imply that when he ceases to be an officer he is relieved from liability to impeachment. If a statute provided that an offi- cer or a director of a national bank should be liable to punish- ment for an official act, the courts would not dismiss an indictment, 8 See the arguments of the mana- in such a case the Senate would lose gers and opinions of the senators jurisdiction, ibid., p. 137. Ex-Judge who voted for conviction in Belknap's Jeremiah S. Black declined to express case, passim. an opinion on this point, ibid., p. 216. 9 Senator Conkling in Belknap's Cf. In re Walker, 3 Am. Jurist, 281. Trial, p. 239 ; Senator Frelinghuysen, The Mississippi senate continued the ibid., pp. 259-262; Senator Ingalls, trial of Lieutenant-Governor Davis ibid., p. 394. See Montgomery Blair, and pronounced judgment against him counsel for the respondent, ibid., p. notwithstanding his resignation after 883. Ex-Senator Matthew H.Carpen- the proceedings had begun. (See Ap- ter, respondent's counsel, claimed that pendix, infra.) §92.] LIABILITY OF POEMEE OFFICEES. 577 because found after the ofScial term had expired. .That is said to be the natural and practical meaning of the language used by the Constitution. Public policy may well demand the perpetual dis- qualification from office of a criminal whom it was not possible to impeach during his official term because the evidence to prove his guilt had then not been discovered. In the Federal Conven- tion, there was some discussion as to whether it would not be well to confine impeachments of the President to a time when he was out of office, as was the practice in Virginia.^" This shows that it was the belief of those who drew the Constitution that im- peachments might take place at that time. Several State consti- tutions before and since have provided for impeachment after the expiration of an official term, as well as during the same.^^ The failure to provide against impeachment after an official term shows an intention that it should be included. To this it was replied that the failure to include, showed that it was intended to exclude it.^^ In Blount's case both the counsel for the defend- ant conceded that an officer could not relieve himself from the i» Elliot's Debates, 2d ed., vol. v, p. 840. See Virginia Constitution of 1776. Similar is the Chilian Constitu- tion, Art. 83. 11 Pennsylvania Constitution of 1776, Sec. 22 ; Delaware Constitution of 1776, Art. 23; Vermont Constitution of 1786, Ch. II, Art. XXI, and Georgia Consti- tution of 1798, Art. I, Sec. 10. 12 "It is argued that if a resigna- tion should be permitted under such circumstances, the people would be defrauded out of their rights to have the offender disqualified. The argu- ment is that, as the party ought to escape, the law does not prevent it. But this does not follow. It might be the common case of a casus omissus. But I contend that it is not a casus omissus, and point to the debates to show that it was never contemplated that any but persons holding office should be impeached, and also to show that, so far from being a fraud upon the jurisdiction of the Senate to resign pending an impeachment, those debates show that an influential part of the convention was opposed to impeachment altogether, and thought the better way was an appeal to the people by the accused party; and it is, therefore, consistent with the views of all sides in the convention that a way of escape by resignation should be left to an accused officer in order to enable him to have his day when a more auspicious period for a fair and just judgment could be had upon his case, while effecting the only object contemplated, namely, the re- moval of the officer. No evil or abuse can result from the resignation. It is a purely imaginary ill which can arise from withholding the hand that would disfranchise a citizen and disable him from vindicating himself in a calmer moment. " (Montgomery Blair, Counsel for the Defendant in Bel- knap's Case, pp. 98-99.) 578 IMPEACHMENTS. [chap. XIII. impeacliment by resignation.^^ John Quincy Adams said in Con- gress that an officer could be impeached for an official act at any 13 <■ The principal argument on both sides was on the question whether a Senator was an impeachable civil officer, and there is no doubt that the judgment sustaining the plea was on that ground. But the opinions of the very able counsel on both sides constitute very weighty evidence of the contemporaneous understanding of the Constitution. The two mana- gers, Mr. Bayard and Mr. Harper, and the two counsel for the defen- dant, Mr. Dallas and Mr. IngersoU, were among the ablest lawyers of their day. Mr. Bayard said : — " ' It is also alleged in the plea that the party impeached is not now a Senator. It is enough that he was a Senator at the time the articles were preferred. If the impeachment were regular and maintainable when pre- ferred, I apprehend no subsequent event grounded on the willful act, or caused by the delinquency of the party, can vitiate or obstruct the pro- ceeding. Otherwise the party, by resignation or the commission of some offense which merited and oc- casioned his expulsion, might secure his impunity. This is against one of the sagest maxims of the law, which does not allow a man to derive a benefit from his own wrong.' Mr. Dallas, for the defendant, said : ' There was room for argument whether an officer could be impeached after he was out of office ; not by a voluntary resignation to evade prosecution, but by an adversary expulsion. ' " (Blount's Case, Wharton's State Trials, p. 284.) "Mr. IngersoU, for the defendant, said : ' It is among the less objections of the cause that the defendant is now out of office not by resignation. I certainly shall never contend that an officer may first commit an offense and afterward avoid punishment by resigning his office; but the defend- ant has been expelled. Can he be removed at one trial and disqualified at another for the same offense? Is it not the form rather than the sub- stance of a trial? Do the Senate come, as Lord Mansfield says a jury ought, like a blank paper, without a previous impression on their minds? Would not error in the first sentence naturally be productive of error in second instance? Is there not reason to apprehend the strong bias of a former decision would be apt to pre- vent the influence of any new lights brought forward upon a second trial? ' " (Blount's Case, Wharton's State Trials, p. 296.) " It seems to me that the consent- ing opinion of these leaders of the American bar, two of them making a concession against their client, is entitled to great respect. They all agree that the fact that there can be no judgment of removal is not decisive against the maintenance of the pro- ceeding; for that is true whenever the office has been laid down. But the defendant's counsel confine their objection solely to the fact that the removal has been accomplished by another constitutional mode of deal- ing with the same offense, and one which has disqualified the tribunal itself from proceeding to give judg- ment in impeachment. I do not agree with the distinguished gentlemen on the other side as to the statement of a principle of constitutional law made by Jared IngersoU and Mr. Dallas — a concession directly against the in- terest of their client — because they were conceding that under some cir- cumstances a person could be im- peached after he had left an office. §92.] LIABILITY OF FORMER OFFICERS. 579 time during his subsequent life.^* State senates have sustained articles of impeachment for offenses committed at previous and immediately preceding terms of the same or a similar office.^^ It It was for the interest of their client to maintain the general doctrine that under no circumstances a person could be impeached after he had left an oflBce. It was for the interest of their client to maintain the general doctrine that under no circumstances could that be done. One of these distinguished gentlemen says he is not capable, he never will be led by any professional necessity, to argue that a man who lays down his office to avoid the penalty of his crime can so escape, and the others in different language but in substance concurred in the same opinion. They put their argument on the ground that under another constitutional provision the man had been expelled for the same cause from the Senate within a few days. In other words, a constitu- tional and quasi judicial proceeding had been had which not only exempted the defendant but disqualified the tri- bunal. One of the gentlemen goes on to argue, 'How is it possible to have a trial on impeachment before a body that by a two-thirds vote has just determined every question of fact which is involved in the issue?' That was the argument which those counsel submitted to the Senate at that time. Of the soundness of the decision to the Blount case no ques- tion, as far as I can remember, has been raised since. That the members of either house of Congress should be impeachable by or before the other, or that an officer whose duties are legislative should be called in ques- tion elsewhere for official acts, could never be tolerated and is repugnant to the nature of the office itself." (Manager George Frisbie Hoar in Belknap's Case, pp. 186, 187.) " "The manager from Massachu- setts cited John Quincy Adams, and coupled the citation with as lofty a eu- logy as one man can make upon an- other. I, of course, do not detract from the merits of that distinguished man. He must have had some attractive qualities, since he was considered by a very large number of his Countrymen fit to be set up as a candidate for Presi- dent against him who was then the foremost man of all this world. But the public history of Mr. Adams shows that he of all men that ever lived was the least reliable upon a question of law. He was too fond of personal controversy to care which side he took. It appears from the citation itself that the general opinion of the House, as expressed by other mem- bers, was that the power of impeach- ment applied only to persons actually in office. Mr. Adams of course op- posed what everybody else believed to be true. Nothing, indeed, would have given him greater pleasure than to be impeached. It would have given him an opportunity to come over here, and lay about him right and left. His organ of combativeness was always in a state of chronic inflamma^ tion. He enjoyed nothing so much as he did the certaminis gaudia — the rap- ture of the strife. That was the strongest passion of his nature. He tried to provoke a motion for his own expulsion from the House, and that failing, he presented a petition from some outside enemy to expel him- self." (Jeremiah S. Black, Counsel for the Defendant in Belknap's Case, p. 218.) 16 Barnard's Impeachment Trial, vol. i, p. 191. Butler's Impeachment Trial; Hubbell's Impeachment Trial. 580 IMPEACHMENTS. [CHjLP. Xin. has been held that after a man has ceased to be a soldier he may be tried by a court-martial for an offense committed while he was subject to the articles and rules of war.^^ In the arguments on the other side it was claimed that the pro- visions for impeachments were penal and must be construed strictly. They deprive the accused of a trial by a jury and of the other safeguards granted to criminals by the Constitution ; and he may be put twice into jeopardy for the same offense, since an im- peachment is not a bar to a subsequent indictment in a court of common law for the same crime.^'' If a private citizen can be successfully impeached one day after his exit from office, he may be impeached at any time during his subsequent life. To authorize such proceedings would place a terrible weapon in the hands of a dominant political party. That no such attempt was made before the case of Belknap, was a sign of the belief that the power did not exist, since party feeling was quite as bitter after the defeat of the Federalists by the Democrats, and the defeat of the Democrats by the Republicans, as at any subsequent time. It has been the repeated practice in the House of Representatives to drop the proceedings when the accused has resigned, pending an in- vestigation as to whether he had committed an impeachable offense. It was held by the New York Assembly, in the cases of Fuller and Cardozo, that after a resignation a public officer could not be " There was good reason for overrul- vious term of the same ofBce." (State ing the plea to the jurisdiction in the v. Hill, Ex-Treasurer, 37 Nebraska, three cases just mentioned. Each re- 80.) spondent was a civil officer at the time " The term officer cannot properly he was impeached, and had been such be applied to a person who is not at uninterruptedly since the alleged mis- the time In the holding of an office, demeanors in office were committed. When a person ceases to hold office. The fact that the offense occurred in he immediately becomes a private the previous term was immaterial. citizen." (Ibid., p. 90.) The object of impeachment is to re- i^ Lord George SackviUe's Case, move a corrupt or unworthy officer. A. D. 1760, Tytler on Military Law, If the term has expired and he is no ch. ii. ; In re William Walker, 3 Ameri- longer in office, that object is attained, can Jurist, 281. But see Winthrop, and the reason for his Impeachment Digest of Opinions of Judge Advocate no longer exists. But if the offender Generals, ed. 1880, p. 209. is still an officer, he is amenable to i' Ex-Judge Jeremiah S. Black, impeachment, although the acts Counsel for Defendant in Belknap's charged were committed in his pre- Case, pp. 226-227. § 93.] IMPEACHABLE OFFENSES. 581 impeached.18 The Supreme Court of Nebraska has held that no one can be impeached after the expiration of his official term.i^ " The Constitution declares that when the President is impeached the Chief- Justice shall preside. The question has been propounded re- peatedly, and by several Senators, who would preside if an Ex-Presi- dent was impeached ? I will admit that is a puzzle. The puzzle arises out of the absurdity of impeaching an Ex-President. Ouf friends on the other side are so hampered by their own theory that they are obliged simply to decline answering. There is one answer and only one con- sistent with their logic, and that is this : That when an Ex-President is impeached an Ex-Chief -Justice ought to preside at the trial.'""" The doubt upon the question and the unsatisfactory result of Belknap's case, make it highly improbable that a similar attempt will be made in the future. § 93. Impeachable Offenses. The provision in the Constitution of the United States concern- ing impeachable offenses is, that — "the President, Vice-President and all civU officers of the United States shall be removed from Office on Impeachment for and Conviction of Treason, Bribery, and other high Crimes and Misdemeanors." ^ It has been claimed, as has been shown above, that this clause does not limit the power of impeachment; but that under the previous provision on the subject,^ the persons liable to impeachment are the same here as in England.^ It is, however, well settled that the sole impeachable offenses are " Treason, Bribery and other high Crimes and Misdemeanors." Treason has been defined in the Constitution as follows : — "Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." * 18 Cited in Barnard's Trial, vol. i, § 93. i Article II, Section 4. pp. 158, 451. See the Mississippi oases ^ Article I, Section 2. in the Appendix, infra. ' Supra, § 91. w State V. Hill, Ex-Treasurer, 37 * Article III, Section 3. See the Nebraska, 80 ; quoted supra, note 15. discussion of the Judicial Power, See Appendix, infra. infra. 20 Ex-Judge Jeremiah S. Black in • Belknap's Case, p. 225. 582 IMPEACHMENTS. [chap. XIII. For the definition of the crime of bribery we must look to the common law.^ The only difficulty arises in the construction of the term, " other high Crimes and Misdemeanors." As to this four theories have been proposed : That except treason or bribery no offense is impeachable which is not declared by a statute of the United States to be a crime subject to indictment. That no offense is impeachable which is not subject to indictment by such a statute or by the common law. That all offenses are impeach- able which were so by that branch of the common law known as the law of Parliament. And that the House and Senate have the discretionary power to remove and stigmatize by perpetual disquali- fication an officer subject to impeachment for any cause that to them seems fit. The position that, except treason or bribery, no offense is impeachable which is not indictable by law, was main- tained by the counsel for the respondents on the trials of Chase ^ and Johnson.'' Out of abundant caution in this respect certain ^ Story on the Constitution, 5tli ed., § 796. See the debate in Barnard's Impeachment Trial, pp. 2059-2075; and the proceedings in Belknap's Im- peachment Trial, supra, § 90. The twentieth article of Barnard's Im- peachment charged that suitors who had cases then pending in his court had presented $1,000 to his child, and on another occasion had given to him a number of costly chairs of the value of $500 and upwards. The tes- timony proved the present to the child, but was conflicting as to whether the judge had paid for the chairs. A majority of the New York Court of Impeachment, including all the judges of the Court of Appeals, except Judge Grover, voted not guilty on this article upon the ground that the present to the child was given in such a manner as to create a trust which he had no power to refuse. (Ibid.) ^ Luther Martin's argument in Chase's Impeachment Trial, published by Sam- uel H. Smith, vol. ii, pp. 137-144. ' Benjamin E. Curtis, Ex-Justice of the Supreme Court of the United States, counsel for the defendant in Johnson's Impeachment Trial, vol. i, pp. 408-411 : " In the front of this inquiry the ques- tion presents itself : What are impeach- able offences under the Constitution of the United States ? Upon this question learned dissertations have been written and printed. One of them is annexed to the argument of the honorable man- ager who opened the cause for the pros- ecution. Another one on the other side of the question, written by one of the honorable managers themselves, may be found annexed to the proceedings in the House of Representatives upon the occa- sion of the first attempt to impeach the President. And there have been others written and published by learned jurists touching this subject. I do not propose to vex the ear of the Senate with any of the precedents drawn from the middle ages. The framers of our Constitution were quite as familiar with them as the learned authors of these treatises, and the framers of our Constitution, as I conceive, have drawn from them the les- §93.] mPBACHABLB OrPBNSBS. 583 criminal statutes such as the Tenure of Office Act of 1868 « have 8 U St. at L., p. 431 ; U. S. E. S., § 1772. son which I desire the Senate to receive, that these precedents are not fit to gov- ern their conduct on this trial. In my apprehension, the teachings, the require- ments, the prohibitions of the Constitu- tion of the United States prove all that is necessary to be attended to for the purposes of this trial. I propose, there- fore, instead of a search through the precedents which were made in the times of the Plantagenets, the Tudors, and the Stuarts, and which have heen repeated since, to come nearer home and see what provisions of the Constitution of the United States bear on this question, and whether they are not sufficient to settle it. If they are, it is quite imma- terial what exists elsewhere. My first position is, that when the Constitution speaks of 'treason, bribery and other high crimes and misdemeanors,' it re- fers to, and Includes only, high criminal offences against the United States, made so by some law of the United States ex- isting when the acts complained of were done, and I say that this is plainly to be inferred from each and every provision of the Constitution on the subject of Im- peachment. 'Treason' and 'bribery.' Nobody will doubt that these are here designated high crimes and misdemean- ors against the United States, made such by the laws of the United States, which the framers of the Constitution knew must be passed in the nature of the gov- ernment they were about to create, be- cause these are offences which strike at the existence of that government. 'Other high crimes and misdemeanors.' Noscitur a sociis. High crimes and mis- demeanors ; so high that they belong in this company with treason and bribery. That is plain on the face of the Constitu- tion — in the very first step it takes on the subject of impeachment. 'High crimes and misdemeanors ' against what law ? There can be no crime, there can be no misdemeanor without a law, writ- ten or unwritten, express or implied. There must be some law, otherwise there is no crime. My interpretation of it Is that the language ' high crimes and mis- demeanors ' means ' offences against the laws of the United States.' Let us see if the Constitution has not said so. The first clause of the second section of the second article of the •Constitution reads thus: 'The President of the United States shall have the power to grant re- prieves and pardons for offences against the United States, except in cases of im- peachment.' ' Offences against the Uni- ted States ' would include ' cases of im- peachment,' and they might be pardoned by the President if they were not ex- cepted. Then cases of impeachment are, according to the express declaration of the Constitution itself, cases of of- fences against the United States. " StiU, the learned manager says that this is not a court, and that, whatever may be the character of this body, it is bound by no law. Very different was the understanding of the fathers of the Constitution on this subject. " Mr. Manager Butler. Will you state where it was I said it was bound by no law? " Mr. Stanbery. ' A law unto itself.' "Mr. Manager Butler. 'No common or statute law ' was my language. " Mr. Curtis. I desire to refer to the sixty-fourth number of The Tederalist, which is found in Dawson's edition, on page 453 : ' The remaining powers which the plan of the Convention allots to the Senate, in a distinct capacity, are com- prised In their participation with the Executive in the appointment to offices, and in their judicial character as a court for the trial of Impeachments, as in the business of appointments the Executive will be the principal agent, the pro- visions relating to it will most properly 584 IMPEACHMENTS. [chap. xm. stated that the acts therein forbidden shall be "high misde- meanors." be discussed in the examination of that, department. Wo will therefore conclude this head with a view of the judicial character of the Senate.' And then it is discussed. The next position to which I desire the attention of the Senate is, that there is enough written in the Con- stitution to prove that this is a Court in which a judicial trial is now being car- ried on. 'The Senate of the United States will have the sole power to try- all impeachments.' ' When the Presi- dent is tried the Chief Justice shall pre- side.' ' The trial of all crimes, except in case of impeachment, shall be by jury.' This, then, is the trial of a crime. You are triers, presided over by the Chief Justice of the United States in this par- ticular case, and that on the express words of the Constitution. There is also, according to its express words, to be an acquittal or a conviction on this trial for a crime. ' No person shall be convicted without the concurrence of two-thirds of the members present.' There is also to be a judgment in case there shall be a conviction. Judgment in cases of impeachment shall not ex- tend further than removal from office and disqualification to hold any office of honor, trust, or profit under the United States. Here, then, there is the trial of a crime, a trial by a tribunal designated by the Constitution in place of court and Jury ; a Conviction, if guilt is proved ; a judgment on that conviction ; a punish- ment inflicted by the judgment for a crime ; and this on the express terms of the Constitution itself. And yet, say the honorable managers, there is no court to try the crime and no law by which the act is to be judged. The honorable manager interrupted me to say that he qualified that expression of no law ; his expression was, ' no common or statute law.' Well, when you get out of that field you are in a limbo, a vacuum, so far as law is concerned, to the best of my knowledge and belief. I say, then, that it is impossible not to come to the conclusion that the Constitution of the United States has designated impeach- able ofEences as offences against the United States ; that it has provided for the trial of those offences ; that it has established a tribunal for the purpose of trying them; that it has directed the tribunal, in case of conviction, to pro- noimce a judgment upon the conviction and inflict a punishment. All this being provided for, can it be maintained that this is not a court, or that it is bound by no law ? "But the argument does not rest mainly, I think, upon the provisions of the Constitution concerning impeach- ment. It is, at any rate, vastly strength- ened by the direct prohibitions of the Constitution. ' Congress shall pass no biU of attainder or ex post facto law.' According to that prohibition of the Con- stitution, if every member of this body, sitting in its legislative capacity, and every member of the other body, sitting in its legislative capacity, should unite in passing a law to punish an act after the act was done, that law would be a mere nullity. Yet what is claimed by the hon- orable managers in behalf of members of this body? As a Congress you cannot create a law to punish these acts if no law existed at the time they were done ; but sitting here as judges, not only after the fact, but while the case is on trial, you may individually, each one of you, create a law by himself to govern the case. " According to this assumption, the same Constitution which has made it a bill of rights of the American citizen, not only as against Congress but as against the legislature of every State in the Union, that no ex post facto law shall be passed — this same Constitution has erected you into a body and empowered every one of you to say aut inveniam §93.] IMPEACHABLE OFFENSES. 585 The first two theories are impracticable in their operation, inconsistent with other language of the Constitution, and over- ruled by precedents. If no crime, save treason and bribery, not forbidden by a statute of the United States, will support an im- peachment, then almost every kind of official corruption or oppression must go unpunished.^ Suppose the Chief-Justice of 3 " Is the silence of the statute- book to be deemed conclusive in favor of the party until Congress have made a legislative declaration and enumera- tion of the offences which shall be deemed high crimes and misde- meanors? If so, then, as has been truly remarked" (citing Eawle on the Constitution, ch. xxix, p. 273), "the power of impeachment, except as to the two expressed cases, is a complete P nullity, and the party is wholly dispunishable, however enor- mous may be his corruption or crimi- nality. It will not be sufficient to say that, in the cases where any offence is punished by any statute of the United States, it may and ought to be deemed an impeachable offence. It is not aut faciam : If I cannot find a law I will make one. Nay, it has clothed every one of you with imperial power ; it has ena- bled you to say, sic volo, sic jubeo, stat pro ratione voluntas: I am a law unto myself, by which law I shall govern this case. And, more than that, when each one of you before he took his place here called God to witness that he would ad- minister impartial justice in this case according to the Constitution and the laws, he meant such laws as he might make as he went along. The Constitu- tion, which had prohibited anybody from making such laws, he swore to observe; but he also swore to be governed by his own will; his own individual will was the law which he thus swore to observe ; and this special provision of the Consti- tution, that when the Senate sits in this capacity to try an impeachment the sen- ators shall be on oath, means merely every offence that by the Constitution is so impeachable. It must not only be an offence, but a high crime and misdemeanor. Besides, there are many most flagrant offences which, by the statutes of the United States, are punishable only when committed in special places and within peculiar jurisdictions, as, for instance, on the high seas, or in forts, navy yards, and arsenals ceded to the United States. Suppose the offence is com- mitted in some other than these privileged places, or under circum- stances not reached by any statute of the United States, would it be im- peachable? " (Story on the Consti- tution, 5th ed., § 796 ; see also ibid., § 798.) that they shall swear to follow their own individual wills. I respectfully submit, this view cannot consistently and prop- erly be taken of the character of this body, or of the duties and powers in- cumbent upon it. " Look for a moment, if you please, to the other provision. The same search into the English precedents, so far from having made our ancestors who framed and adopted the Constitution in love with them, led them to put into the Constitution a positive and absolute prohibition against any bill of attainder. What is a bill of attainder ? It is a case before the Parliament where the Parlia- ment make the law for the facts they find. Each legislator — for it is in their legislative capacity they act, not in a ju- dicial one, — is, to use the phrase of the honorable managers, ' a law unto him- self,' and according to his discretion, his 686 IMPEACHMENTS. [CHAP. Xni. the United States were convicted in a State court of a felony or misdemeanor, must he remain in office unimpeached and hold court in a State prison ? ^^ The term, " high Crimes and Misdemeanors," has no significance in the common law concerning crimes subject to indictment. It can be found only in the law of Parliament and is the technical term which was used by the Commons at the bar of the Lords for centuries before the existence of the United States. The Constitution provides that — "The Judges, both of the Supreme and inferior Courts, shall hold their offlces during good Behavior." This necessarily implies that they may be removed in case of bad behavior. But no means except impeachment is provided for their removal,^ and judicial misconduct is not indictable by either a statute of the United States or the common law.^^ In 1803 Pickering, a District Judge of the United States, was convicted on impeachment for his official action in surrendering to the claimant, without requiring the statutory bond, a vessel libelled by the United States, for refusing to allow an appeal from this order, and for drunkenness and profane language on the bench.^* 10 See the argument of Manager T.), 282; s. c. 9 Johns (N. T.), 375; Charles A. Wickliffe in Peck's Im- Hammond v. Howell, 2 Mod., 218; peachment Trial, p. 309. Tloyd v. Barker, 12 Coke, 23, 25. 11 Article III, Section 1. i* Pickering's Trial, Annals of Con- 12 Such means are provided in most gress, 1802-1803, pp. 267, 268; ibid.. State constitutions. Infra, § 96. 1803-1804, pp. 27, 76, 224, 225, 268, "Bishop's Criminal Law, § 462, 274, 271, 275, 298, 315-367; sitpra, §90. citing Yates v. Lansing, 9 Johns (N. views of what is politic or proper under same principles as a bill of attainder in the circumstances, he frames a law to the English Parliament. The individual meet the case, and enacts it or votes in wiUs of the legislators, instead of the its enactment. According to the doc- conscientious discharge of the duty of trine now advanced, bills of attainder the judges, settle the result." are not prohibited by this Constitution ; To the same effect are Trial by Im- they are only slightly modified. It is peachment, a lecture by Prof. Theodore only necessary for the House of Eepre- W. Dwight to the students of the Colum- sentatives by a majority to vote an im- bia Law School ; Am. Law Eeg., N. S., peachment and send up certain articles vol. vl, pp. 257, 269 ; and Minority Re- and have two-thirds of this body vote in port of James F. Wilson and Frederick favor of conviction, and there is an at- G. Woodbridge on first proposition to tainder; and it is done by the same impeach Andrew Johnson, House Re- process and depends on identically the ports, 40th Congress, 1st Sees., No. 7. §93.] IMPEACHABLE OPFEKSBS. 587 None of these offenses were indictable by the common law or by statute. Humphreys, a District Judge of the United States, was con- victed on impeachment, not only for treason but also for refusing to hold court, for holding office under the Confederate States and for imprisoning citizens for expressing their sympathy with the Union.15 The manager of the House of Representatives who opened the ease, admitted that none of these offenses except the treason was indictable.^^ Some advocates have gone so far as to maintain, by a misap- plication of a term of the common law, that the proceedings on an impeachment are not a trial, but a so-called inquest of office, and that the House and Senate may thus remove an officer for any reason that they approve." That Congress has the power 15 Humphreys' Trial ; The Congres- sional Globe, 37th Congress, 2d Ses- sion, Part 4, pp. 2942-2953 ; swpra, §90. 16 Manager Train, ibid., p. 2943: "It may be supposed that the first charge in the articles of impeachment against ■William Blount was a statut- able offence; but on an accurate ex- amination of the Act of Congress of 1794, it will be found not to have been so." (Story on the Constitution, 5th ed., § 799, note 2.) In State v. George H- Hastings, Attorney-Gen- eral and others, 37 Nebraska, 96, 114; s. c, 55 N. W. Eep., 774; the court said that an impeachable offense was not necessarily indictable. 1' See the argument of John Ean- dolph in Chase's Impeachment Trial, supra, § 90; infra, § 94; and those of Benjamin P. Butler, and William Lawrence in Johnson's Impeachment Trial, vol. i, pp. 93, 123-147 ; opinion of Charles Sumner, ibid., vol. iii, pp. 247-254. " Much has been said in the course of the trial upon the nature of this proceeding, and the nature of the offences which can fairly be em- braced with the terms of the Consti- tution. In my opinion this high tri- bunal is the sole and exclusive judge of its own jurisdiction in such cases, and that as the Constitution did not es- tablish this procedure for the punish- ment of crime, but for the secure and faithful administration of the law, it was not intended to cramp it by any specific definition of high crimes and misdemeanors, but to leave each case to be defined by law, or, when not defined to be decided upon its own circumstances, in the patriotic and judicial good sense of the rep- resentatives of the States. Like the jurisdiction of chancery in cases of fraud, it ought not to be limited in advance, but kept open as a great bulwark for the preservation of purity and fidelity in the administration of affairs, when undermined by the cunning and low practices of low of- fenders, or assailed by bold and high- handed usurpation, or defiance; a shield for the honest and law-abiding official; a sword to those who per- vert or abuse their powers, teaching the maxim which rulers endowed with the spirit of a Trajan can listen to without emotion, that, ' Kings 588 IMPEACHMENTS. [CHAP. Xni. to do SO may be admitted. For it is not likely that any court would hold void collaterally a judgment on an impeachment where the Senate had jurisdiction over the person of the condemned. And undoubtedly a court of impeachment has the jurisdiction to determine what constitutes an impeachable offense. But the judg- ments of the Senate of the United States, in the cases of Chase and Peck, as well as those of the State senates, in the different cases which have been before them have established the rule that no officer should be impeached for any act that does not have at least the characteristics of a crime. And public opinion must be irremediably debauched by party spirit before it will sanction any other course. Impeachable offenses are those which were the subject of im- peachment by the practice in Parliament before the Declaration of Independence, except in so far as that practice is repugnant to the language of the Constitution and the spirit of American insti- tutions.^^ An examination of the English precedents will show that, although private citizens as well as public officers have been impeached, no article has been presented or sustained which did not charge either misconduct in office or some offense which was injurious to the welfare of the State at large.^^ can be cashiered for misconduct.'" The Duke of Suffolk was impeaclied, (Opinion of Senator Edmunds in 28 H. 6, for that being ambassador he Johnson's Impeachment Trial, vol. iii, consented to the delivery of divers p. 94.) towns to the King of Prance, without 18 See an article on Impeachable the privity of the other ambassadors. Offences by G. Willett Van Ness, Art. 4 {vide Seld. 3 vol. 2 P. 1597). Am. Law. Eeview, vol. xvi, p. 798 ; The Earl of Bristol, that he, being State V. George H. Hastings, Attorney- ambassador, gave false informations to General and others ofaoers, 37 Ne- the king. 1 Eush, 249. braska, 96 ; s. c. 55 N. W. Eep., 774. That he did not pursue his instruc- 15 Woodeson's Lectures, vol. ii, pp. tions. Art. 2, 1 Bush, 250. 601-602. That he pursued his embassy for his "The Duke of Suffolk was im- own profit only. Art. 4. 1 Kush, 250. peached for high treason, 28 H. 6, Cardinal Wolsey, that he made a Seld. Jud. Pari., 29 (3 vol. 2 P. 1597). treaty between the Pope and the For high treason in subverting the King of Prance, when ambassador to fundamental laws, and introducing H. 8, without the privity of his king, arbitrary power. Lord Pinch, Sir 4 Inst. 89, 156. Bobert Berkley and Lord Strafford. That he joined himself with the 2 Bush., 606; 3 Bush, 1365. (Victe king. 4 Inst. 90. Bush, part 3, vol. 1, 136.) The Earl of Bristol was impeached, § 93.] IMPEACHABLE OFFENSES. 589 In this class of cases, which rest so much in the discretion of 2 Car. , that tie counselled against a war with Spain, when that king affronted us, to the dishonour and detriment o! the realm. Art. 3. 1 Bush, 250. That he advised a toleration of the papists. 1 Bush, 251. That he enticed the king to popery. 1 Bush, 252, 262. Michael de la Poole was impeached, that he incited the king to act against the advice of Parliament. Seld. Jud. Pari., 25 (3 vol. 2 P. 1596). The Spencers, that they gave bad counsel to the king. 4 Inst. 54. The Earl of Ortord, that he ad- vised a prejudical peace. 8 May, 1701. Lord Finch, that he, being speaker of the commons, refused proceedings in the house. The Duke of Buckingham was im- peached, for that he, being admiral, neglected the safeguards of the sea. Bush, 308. The Earl of Orford, that he haz- arded the navy, and had neglected to take ships of the enemy. 8 May, 1701. Michael de la Poole was impeached that he being chancellor acted con- trary to his duty. Seld. Jud. Pari., 26 (3 vol. 2 P. 1596). Lord Somers that he ratified a peace, not approved by the parties concerned, under the great seal. 16 May, 1701. That he put the great seal without warrant. Ibid. And to a blank commission. Ibid. Michael de la Poole was impeached, that he purchased lands of the king, which he had procured to be surveyed under their value. Seld. Jud. Pari. 24 (3 vol. 2 P. 1596). For a fraudulent purchase from the king. Seld. Jud. Pari., 26 (3 vol. 2 P. 1596.) Sir John, Lord Somers. 16 May, 1701. The Duke of Buckingham was im- peached for plurality of offices. 2 Car. Bush 306. The Earl of Orford, for exercising incompatible offices. 8 May, 1701. So the Lord Halifax. 9 June, 1701. The Duke of Buckingham was im- peacljed for giving a medicine to the king without the advice of the physi- cians. Bush, 351. So the Spencers, father and son, were Impeached for that they pre- vented the great men of the realm from giving their counsel to the king except in their presence. 4 Inst. 53. That they put good magistrates out of office and advanced bad. Ibid. The Earl of Orford was impeached that he encouraged pirates. 8 May, 1701. Sir G. Mompesson was impeached for the procurement of patents of mo- nopoly. 18 Jao. Bush, 24, 27. Seld. Jud. Pari. 31 (3 vol. 2 P. 1598.) Lord Chancellor Bacon was im- peached for bribery. 18 Jac. Bush, 28. Seld. Jud. Pari. 31 (3 vol. 2 P. 1599). The Duke of Buckingham, for the sale and purchase of offices. Bush, 334. The Lord Finch, for unlawful methods of enlarging the forest, when assistant to the justices in eyre. Art. 3, vide Bush, part 3, vol. 1, 137. For threatening other judges to subscribe to his opinion. Ibid., Art. 4, 5, 6. For delivering opinions which he knew to be contrary to law. Art. 7. Ibid. For drawing the business of the court to his chamber. Art. 8. Ibid. So an impeachment was exhibited for several extortions and deceits to the public. Seld. Jud. Pari. 19 (3 vol. 2 P. 1594, 1595). An Article was exhibited against 590 IMPEACHMENTS. [chap. XIII. the Senate, the writer would be rash who were to attempt to prescribe the limits of its jurisdiction in this respect.^" Cardinal Wolsey for exercising lega- tive authority to tlie prejudice of the authority and oppression of ordinaries and houses of religion. 4 Inst. 89. So against the Earl of Orford, for converting the public money to his own use, -without account. 8 May, 1701. So an impeachment was against the Earl of Orford, that he procured from the king to himself exorbitant grants in lands and money. 8 May, 1701. So against Lord Somers. 16 May, 1701. For taking money, &c., from a for- eign prince without giving an account for it. 8 May, 1701. For selling goods, taken as admiral, for his own use, without accounting for a tenth to others. 8 May, 1701. Lord Halifax, for obtaining grants of estates forfeited for rebellion. 9 June, 1701. For obtaining grants of money when there was a war and heavy taxes. Ibid. And grants out of the king's woods. Ibid." Comyn's Digest, Parliament L., 28-39. Dr. Sacheverell was impeached for preaching a seditious sermon. How- ell's State Trials, vol. xv, p. i. The Earl of Clarendon, for falsely affirming that Charles II was a papist, for introducing an arbitrary govern- ment into the king's plantations, and for giving bad advice concerning the manosuvres of the fleet. Ibid., vol. vi, pp. 346-393. The Earl of Orrery, for raising money by his own authority from the king's subjects in Ireland. Ibid., p. 915. Sir Adam Blair and others with him, for dispersing a seditious and treason- able paper. Ibid., vol. xii, p. 1207. Lord Chancellor Macclesfield, for selling his appointments to mastership in chancery. Ibid., vol. xvi, p. 767. Warren Hastings, for oppressive government in India, and extortion upon the natives there. (Burke's Works.) Viscount Melville, for d epositing the public funds with a private banker, where it was suspected that he used them in speculation. Howell's State Trials, vol. xxix, p. 949. 20 The constitution of Alabama au- thorizes impeachment "for willful neglect of duty, corruption in ofSce, habitual drunkenness, incompetency, or any offense involving moral turpi- tude while in ofifioe, or committed under color thereof, or connected therewith" (Art. VII, Sec. 1). That of Arkansas, "for high crimes and misdemeanors and gross misconduct in office" (Art. XV, Sec. 1). That of Colorado, "for high crimes or misde- meanors, or malfeasance in office" (Art. XIII, Sec. 2). That of Iowa for any misdemeanor or malfeasance in office" (Art. Ill, Sec. 20). That of Kentucky, ' ' for any misdemeanors in office" (Art. LXVIII). That of Loui- siana, "for high crimes and misde- meanors, for nonfeasance or mal- feasance in office, for incompetency, for corruption, favoritism, extortion or oppression in office, or for gross misconduct, or habitual drunkenness " (Art. 196). That of Michigan, "for corrupt conduct in office, or for crimes and misdemeanors " (Art. XII, Sec. 1). That of Minnesota, the same (Art. XIII, Sec. 1). That of North Dakota, "for habitual drunkenness, crimes, corrupt conduct, or malfeasance or misdemeanor in office" (Art. XIV, Sec. 196). Thatof South Dakota, "for drunkenness, crimes, corrupt conduct, §93.] IMPEACHABLE OFFENSES. 591 An impeachable offense may consist of treason; ^^ bribery ;22 or a breach of oiEcial duty by malfeasance or misfeasance, including conduct such as drunkenness,^ when habitual or in or malfeasance, or misdemeanor in office" (XVI, Sec. 3). That of "West Virginia, "for mal-administration, corruption, incompetency, gross im- morality, neglect of duty, or any high crime, or misdemeanor" (Art. IV, Sec. 9). The other State constitutions pre- sent in this respect substantial simi- larity to the Constitution of the United States. In Chili, cabinet officer^ may be impeached for ' ' treason, corruption in office, misappropriation of public funds, subornation, violation of the constitution, impeding the execution of the laws or failure to execute the same, and for gravely compromising the safety and honor of the Nation " (Art. 92). "1 Constitution, Article II, Secti«a 4. 22 Ibid. 23 Pickering's Impeachment Trial, supra, § 90, infra, § 94. Cox' Impeach- ment Trial, infra, § 94, and Appendix to this volume ; Botkin's Impeach- ment Trial, Appendix to this volume. In Botkin's Impeachment Trial, de- murrers to the following Articles were overruled : — "That the said Theodosius Botkin was, on the 13th day of January, 1890, ever since has been and still is judge of the thirty-second judicial district of the state of Kansas, and that the said Theodosius Botkin, while occupy- ing the ofBcial position as judge of said judicial district, unmindful of the high duties of his office and the dignity and proprieties thereof, has been repeatedly intoxicated in public places throughout said judicial dis- trict, to the manifest scandal of the administration of justice, by means whereof the said Theodosius Botkin has brought his high office as judge as aforesaid, into contempt, ridicule and disgrace, to the great scandal of all good citizens ; whereby said Theo- dosius Botkin, judge as aforesaid, was guilty of high misdemeanors in office, which are set forth in the several specifications hereinafter written, in substance and effect, that is to say : ' ' Speaification First : In this, that on the streets and in public places in the city of Springfield, in the county of Seward, in said district, the said Theodosius Botkin was, on or about the first day of April, 1890, intoxi- cated, and under the influence of in- toxicating liquors " ; with nine simi- lar specifications. (Botkin's Impeach- ment Trial, Art. I, pp. 31-32.) " Tkat the said Theodosius Botkin, judge as aforesaid, unmindful of the high duties of his office and the dig- nity and proprieties thereof, while engaged in holding throughout his said district, in the various counties thereof, the terms of his court, as required by law, and during the times of holding the same, has been re- peatedly intoxicated and under the influence of intoxicating liquors, by means whereof the said Theodosius Botkin has brought his high office as judge as aforesaid into contempt, ridicule and disgrace, to the manifest scandal and danger of justice, and to the scandal of all good citizens ; where- by the said Theodosius Botkin, judge as aforesaid, was guilty of high mis- demeanors in oflice, which are set forth in the several specifications hereinafter written, in substance and effect, that is to say : — "Specification First: In this, that the said Theodosius Botkin, while holding the January, 1890, term of the district court of Seward county, in said district, was intoxicated, and 592 IMPEACHMENTS. [chap. XIII. the performance of official duties, gross indecency,^ and pro- 2* In Cox' impeachment trial in Minnesota, a demurrer to tlie follow- ing article was overruled : — "That E. St. Julien Cox, being a Judge of the District Court of the State of Minnesota, in and for the ninth judicial district, unmindful of his duties as such judge, and of the dignity of his ofldce, and in violation of the Constitution and the State of Minnesota, did, at the County of Eamsey, in said State, to wit : On the 14th day of October, A. D. 1881, de- mean himself in a lewd and disgrace- ful manner, in this, that he did then and there resort to a house of ill-fame, kept for the purposes of prostitution, in company with a prostitute, whose name is unknown to the House of Bepresentatives, and did then and there lewdly, lasciviously cohabit and associate with said woman, whereby he, the said E. St. Julien Cox, was guilty of a misbehavior in office, and of crimes and misdemeanors in ofBce " (pp. 24, 160). In the same case a demurrer to the following article was at first also overruled : "That E. St. Julien Cox, being a Judge of the District Court of the State of Minnesota, and for the ninth judicial district, unmindful of his under the influence of intoxicating liquors. " Specification Second : In this, that the said Theodosius Botkin, while holding, during the first week in March, 1890, an adjourned term of the January, 1890, term of the district court of said Seward county, was in- toxicated, and under the influence of intoxicating liquors " ; with nine simi- lar specifications. (Botkin's Impeach- ment Trial, Article II, pp. 33-34.) "That the said Theodosius Botkin, duties as such judge, and of the dig- nity and proprieties of his said office, and in violation of the laws of the State of Minnesota, did at divers times since the 4th day of January, A. D. 1878, at sundry places in the said State, demean himself in a lewd and disgraceful manner in this, that he, the said E. St. Julien Cox, did then and there frequent houses of ill- fame, and consort with harlots, where- by he, the said E. St. Julien Cox, has brought himself and his high office into disrepute to the manifest injury of the morals of the youth and good citizens of the State of Minnesota, and disgrace of the administration of jus- tice, and is thereby guilty of misbe- havior in office ; and of misdemeanors in office." (Ibid., pp. 24, 161, 164, 174, 527.) Upon the decision of the demurrer to this article specifications of the times and places where the offenses were committed were ordered by the Senate and furnished by the managers. It was further ordered that should no such specifications be furnished no testimony in support of the article should be received. After the specifications were furnished the Senate voted "that the objections of the respondent be sustained as to the twentieth article." (Ibid., p. 527.) judge as aforesaid, unmindful of the high duties of his office and the dig- nity and proprieties thereof, while engaged in holding, throughout his said district, in the various counties thereof, the terms of his court, as re- quired by law, and while sitting on the bench as judge, has been repeat- edly intoxicated, and under the in- fluence of intoxicating liquors, by means whereof the said Theodosius Botkin has brought his high office as judge as aforesaid into contempt, §93.] IMPEACHABLE OFFENSES. 593 fanity, obscenity, or other language, used in the discharge ridicule and disgrace, to the manifest scandal and danger to the adminis- tration of justice, and to the great scandal of all good citizens ; whereby said Theodosius Botkin, judge as aforesaid, was guilty of high misde- meanors in ofifice, which are set forth in the several specifications herein- after written, in substance and effect, that is to say : "Specification First: In this, that the said Theodosius Botkin, while holding the June, 1890, term of the district court of Seward county, in said district, and while sitting on the bench as judge, was intoxicated, and under the influence of intoxicating liquors " ; with three similar specifica- tions. (Botkin's Impeachment Trial, Article III, p. 34.) "That the said Theodosius Botkin, judge as aforesaid, unmindful of the high duties of his office and the dig- nities and proprieties thereof, has, since and during his said term of ofBee, been an habitual user of intox- icating liquors to such an excess as to incapacitate him for a clear-minded discharge of his said judicial func- tions, by means whereof the said Theodosius Botkin has brought his high office as judge as aforesaid into contempt, and ridicule and disgrace, to the manifest scandal and great danger of the administration of jus- tice, and to the great scandal of all good citizens ; whereby the said Theo- dosius Botkin, judge as aforesaid, was guilty of a high misdemeanor in office." (Botkin's Impeachment Trial, Art. VII, p. 36; Ibid., pp. 245-265). He was finally acquitted. In the same case, demurrers to the following articles were sustained : — "That the said Theodosius Botkin, judge as aforesa,id, unmindful of the high duties of his office and the dig- nity and proprieties thereof, on the 29th day of August, 1890, on the streets and in public places in the city of Leoti, in Wichita county, was drunk and under tiie influence of in- toxicating liquors, and was engaged in a drunken and boisterous quarrel on said streets and in said public places, and was then and there so disorderly that he had to be taken off said streets by the sheriff of said county to prevent a further disturb- ance of the peace ; by means where- of the said Theodosius Botkin has brought his high office as judge as aforesaid into contempt and ridicule and disgrace, to the great scandal of all good citizens ; whereby said Theo- dosius Botkin, judge as aforesaid, was guilty of high misdemeanors in office." (Trial of Theodosius Botkin, Art. IV, p. 34.) " That the said Theodosius Botkin, judge as aforesaid, unmindful of the high duties of his office and the dig- nity and proprieties thereof, and not- withstanding his duty to enforce the laws to prohibit the sale of intoxicat- ing liquors in this State, except for medical, scientific, and mechanical purposes, has during his said term of office knowingly and willfully fre- quented places within and throughout his said judicial district where intoxi- cating liquors were sold in violation of law; by means whereof the said Theodosius Botkin has brought his high office as judge as aforesaid into contempt, ridicule, and disgrace, and has encouraged the violation of law, to the great scandal of all good citi- zens ; whereby said Theodosius Bot- kin, judge as aforesaid, was guilty of high misdemeanors in office, which are set forth in the several specifica- tions hereinafter written, in substance and effect, that is to say : "Specification First: In this, that the said Theodosius Botkin did, on or 594 IMPEACHMENTS. [CHAP. XTTT. of an official function, which tends to bring the office into dis- about the 10th day of January, 1890, and on sundry, and divers other days thereafter, knowingly and willfully frequent the drugstore of Shortman & Tice, in the city of Springfield, in said district, he, the said Theodosius Botkin, then well knowing that the said Shortman & Tice were at the time selling intoxicating liquors in violation of law. ' ' Specification Second : In this, that the said Theodosius Botkin did, on or about the tenth day of June, 1890, and on sundry and divers other days thereafter, knowingly and willfully, frequently visit the drug store of J. A. L. 'Williams, in said city of Springfield, he, the said Theodosius Botkin, then well knowing that the said J. A. L. Williams was at the time selling in- toxicating liquors in violation of law. "Specification Third: In this, that the said Theodosius Botkin did, on or about the 10th day of April, 1890, and on sundry and divers other days there- after, knowingly and willfully frequent and visit a certain disreputable place, or 'joint,' in the city of Ulysses, in said district, kept by one J. W. Mad- dox, otherwise called ' Bill ' Maddox, he, the said Theodosius Botkin, then well knowing that the said Maddox was at the time selling intoxicating liquors in violation of law." (Ibid., Art. V, p. 35.) " That the said Theodosius Botkin, judge as aforesaid, unmindful of the high duties of his ofBce, and the dig- nities and proprieties thereof, and notwithstanding his duty to enforce the laws to prohibit the sales of in- toxicating liquors in this state, except for medical, scientific and mechanical purposes, has frequently during his said term of office, knowingly, will- fully, and illegally bought intoxicate ing liquors from persons selling the same in violation of law, by means whereof the said Theodosius Botkin has brought his office, as judge as aforesaid, into contempt, ridicule and disgrace, and has thereby knowingly and willfully encouraged the violation of law, to the great scandal of all good citizens; whereby said Theodo- sius Botkin, judge as aforesaid, was guilty of high misdemeanors in office, which are set forth in the several specifications hereinafter written, in substance and effect, that is to say : "Specification First: In this, that the said Theodosius Botkin, at the city of Springfield, in Seward county, did, on or about the 10th day of Janu- ary, 1890, and on sundry and divers other days thereafter, knowingly and willfully buy of Henry Shortman and J. H. B. Adams intoxicating liquors sold in violation of law, he, the said Theodosius Botkin then and there well knowing the same to have been sold in violation of law. "Specification Second : In this, that the said Theodosius Botkin, at the city of Springfield, in Seward county, did on or about the 10th day of June, 1890, and on sundry and divers other days thereafter, knowingly and will- fully buy of J. A. L. Williams intoxi- cating liquors, sold in violation of law, he, the said Theodosius Botkin, then and there well knowing the same to have been sold in violation of law. "Specification Third: In this, that the said Theodosius Botkin, at the city of Ulysses, in Grant county, did on or about the 10th day of April, 1890, and on sundry and divers other days thereafter, knowingly and will- fully buy of J. W. Maddox, otherwise called Bill Maddox, intoxicating li- quors, sold in violation of law, he, the said Theodosius Botkin, then and there well knowing the same to have § 93.] IMPEACHABLE OFFENSES. 595 repute,^ or an abuse or reckless exercise of a discretionary been sold in violation of law. " (Ibid. , Art. VI, pp. 35, 36.) 25 A judge was convicted by the New York Senate on an article which charged that "while sitting on the bench and holding a term of his court, in the presence of suitors, counsel and officers of said court, and of other persons from time to time there pres- ent, he did repeatedly deport himself in a manner unseemly and indecor- ous ; did repeatedly use language coarse, obscene and indecent; did re- peatedly use language, justly caus- ing those persons in his hearing, and other persons, to believe and under- stand that he, said George G. Barnard, in his official action as said justice, acted not with an honest intent faith- fully to discharge the duties of his said office, and to use the process of said court for the purpose of doing justice, but with the wrongful and corrupt intent to aid and benefit his friends and favored suitors and coun- sel ; did repeatedly when applications were made by counsel to him, the said George G. Barnard, in his judi- cial capacity, for divers writs, orders and processes, treat such counsel in a manner coarse, indecent, arbitrary and tyrannical, and calculated to in- timidate, oppress and delay such counsel in the discharge of their sworn duty to their clients, and to deprive such clients of their right to appear and be protected in their lib- erty and property by counsel, and in ' the above and other ways was guilty of conduct unbecoming the high posi- tion which he held, and tending to bring the administration of justice into contempt and disgrace, to the great scandal and reproach of the said Court, and of the justice of the State of New York." There were several specifications. of which only three were proven. Those proven were : — "That in or about the month of October, 1871, upon the occasion of an application to him, the said George G. Barnard, while he was holding a special term of the Supreme Court in the city and county of New York, for the appointment of a referee, the party making the application sug- gested the appointment of one Gratz Nathan as such referee, whereupon the said George G. Barnard said in substance, ' Gratz Nathan — Gratz Nathan; I know no Gratz but one; that is, Gratz Coleman ; he is my Gratz,' or 'he is my referee'; the said George G. Barnard thereby al- luding to a notorious fact, that said Gratz Nathan was a person usually selected as a referee by Justice Car- dozo, and meaning thereby that he had a like favorite in one James H. Coleman." "That in the year 1870, an appli- cation was made, to the said George G. Barnard, while he was holding a special term of the said court, at the place last aforesaid, for the appoint- ment of Thomas W. Gierke, Esq., then late a justice of said court, as referee, whereupon the said George G. Bar- nard said, in substance, that no man need offer that person's name to him as referee, tlie said person had lied about him and had been his enemy, and that he favored his friends and not his enemies ; meaning thereby, that in his judicial capacity he acted with intent to favor his friends." " That on or about the 24th day of March, 1869, while the said George G. Barnard was sitting on the bench and holding a special term of said court, at said place, one Thomas C. Durant, who was then vice-president of the Union Paoiflo Railway Com- 596 IMPBACHMENTS. [CHAP. XHI. po-wer,^^ as well as a breach or omission of an official duty imposed pany, was being examined in said court as a witness, and said Durant, in the course of such examination, testified in reference to a remark that had been openly and publicly made by the said George G. Barnard in the lunoh-room of the Astor House, at said city, being a place of general re- sort, in the words or to the effect fol- lowing : ' I have driven one set of scoundrels out of New York, and I am going to drive out this set,' and on such remark being so testified to, said George G. Barnard, from his seat on the bench, in the presence of suit- ors, officers and counsel of the court, admitted that he had made said re- mark, at the place and under the cir- cumstances testified to, thereby giv- ing those present to understand that he, said George G. Barnard, as a jus- tice of the said Supreme Court, used the process of said court, not for the purpose of doing justice between party and party, but for the purpose of prosecuting and harassing the tTnion Pacific Eailroad Company and the officers thereof, said company be- ing engaged in a litigation with James Fisk, Jr." (Barnard's Impeachment Trial, p. 2159.) " That on or about the 13th day of February, 1872, the said George G. Barnard, while sitting on the bench and holding a term of said court at the city of New York, on an applica- tion being made to him to attend an order whereby Philo T. Euggles, Esq., had been appointed referee, said in eifeot : ' I shall sign no order unless I can make it to a man I can rely upon. I am not going to appoint anyone even by consent, unless it is satisfac- tory to me. I did not appoint this referee.' And one of counsel in the case stated : ' This gentleman was not appointed by consent.' The said George G. Barnard further said, in effect : ' I don't care, I shall not do it ; and if you don't like it, you can put it in for the 999th article of impeach- ment.'" (Barnard's Impeachment Trial, p. 2160.) See also Pickering's Impeachment Trial, supra, § 90 ; infra, §94. Judge Kapallo said (at p. 2172 of Barnard's Trial) : " To treat the dis- cretionary power of appointing refer- ees, receivers, guardians, etc., which is incidentally vested in a judge, as an instrument of patronage, to be used by him for the benefit of his friends or his own advancement, ne- cessarily destroys the perfect impar- tiality with which such powers should be exercised or their exercise refused, with the sole view to the rights and Interests of the parties before him, and causes motives and interests of his own to intervene, which, if not actually leading to a corrupt violation of the rights of litigants, must at least destroy confidence in the integrity ot the motive and action of the judge. In my judgment the public avowal of a principle of judicial action so de- structive of confidence in the integrity with which a most important branch of the jurisdiction of the courts, in which the respondent sat, was exer- cised, does sustain the charge of bringing scandal and reproach upon the court." 26 In the same trial (pp. 2037-2038) it was said by Judge Grover, with whom the rest of the Court of Im- peachment seemed to agree: "The counsel of the respective parties agree substantially upon the law as to what constitutes an impeachable offense. They expressed it in somewhat differ- ent language, but the fundamental idea was the same, that an impeach- able offense in a judicial officer con- §93.J IMPEACHABLE OFFENSES. 597 by statute or common law ; ^^ or a public speech when off duty sisted of an intentional violation of duty on his part to the prejudice of public justice ; or a reckless exercise of his functions, indifferent as to whether what he did was right or wrong ; I thinlt that these definitions will furnish a test." "It is the duty of every judicial ofaoer to investigate questions that are presented for his determination, and exercise his judgment, and when he has in good faith exercised his judgment, he is excusable for error; but if he does the act without regard to whether it is right or wrong, or if he does it conscious that he is vio- lating the law, or if he act without having examined it at all, he is guilty of a violation of the duty of his office. This, in the language of the article, is 'mal and corrupt conduct in office,' and an impeachable offense." On the same trial, Senator T>. P. Wood said : " A right decision maybe arrived at in such an oppressive man- ner by a judge as to be converted into a great wrong. I mean by that that he may arrive at what would be a just remedy, in the end, in a manner to com- mit so great a wrong as to render himself liable to conviction on an arti- tiele of impeachment. I will suppose a case : A summons is drawn up ac- companied by a complaint against me, showing upon its face that I owe an honest debt which I neglect or refuse to pay, and which, after a trial, must, if proved, entitle the plaintiff to a judgment against me, and an execu- tion to be issued thereon, and my property to be seized and sold and the avails turned over to the plaintiff. Now, will he tell me that if upon those papers, a judge, without notice, issues an order to the sheriff to seize my property and pass it over to my credi- tors, or appoints a receiver of my property, and at the same time, and in the same manner, issues a writ of assistance to put that property into the hands of a receiver, and, if you please, goes still further, and inserts in that order appointing a receiver, a provision that when that property is placed in his, the receiver's hands, it shall be by him handed over to the plaintiff in the action ; that the judge cannot be impeached for that act be- cause the papers presented to him, on their face, made a prima facie case of indebtedness against me? " (Ibid., pp. 2095-2096.) The judge was convicted by a two- thirds vote of guilty on Article XI, to which this reference was made, for granting ex parte an order appointing receivers and ordering them to take immediate possession of a railroad ; although the papers on which the ap- plication was made alleged insufficient to sustain the jurisdiction, when the evidence showed that the judge left his mother's deathbed on a telegram from James Fiskon the morning when he granted the order, went to New York to the house of Fisk's mistress, and not finding him there, to the Grand Opera House, and thence to another house owned by James Fisk, and signed the order ; having left Pough- keepsie at 6 o'clock and sent the re- ceiver on the train to take possession of the railroad at 11 o'clock the same evening. (Ibid., pp. 2090-2103.) '^ Pickering's Impeachment Trial ; Humphreys' Impeachment Trial ; Ad- dison's Impeachment Trial ; Prescott's Impeachment Trial; Holden's Im- peachment Trial; Frazier's Impeach- ment Trial; Barnard's Impeachment Trial, vol. iii, pp. 2037-2203. In State V. George S. Hastings, Attorney- General and others, 37 Nebraska, 96 ; s. c. 55 N. W. Eep., 774, the court 598 IMPEACHMENTS. [chap. XIII. which encourages insurrection.^^ It does not consist in an error in judgment made in good faith in the decision of a doubtful question of law,^^ except perhaps in the case of a violation of the Constitution.^" It includes such action by an oiScer when acting as a member ex officio of a board of commissioners ; ^^ and such action in the same or a similar office, at an immediately precediug term, in one case, it was so held, after his re-election in a campaign at which the charges were discussed upon the stump.^^ Otherwise, it seems an officer should not be impeached for an offense committed before his official term,^^ nor, except perhaps when the offense tends to bring the office into great disrepute,^ for an offense committed said that negligence so gross and flagrant as to warrant the inference that it was corrupt constituted a "misdemeanor in office" which was a ground of impeachment. 28 Hardy's Impeachment Trial, infra, § 94 ; Humphreys' Impeachment Trial, supra, § 90, infra, § 96. 29 The following definition by Ex- Judge William Lawrence had the ap- proval of the managers of Johnson's Impeachment Trial : " An impeachable high crime or misdemeanor is one in its nature or consequence subversive of some fundamental or essential prin- ciple of government or highly preju- dicial to the public interest, and this may consist of a violation of the Con- stitution, of law, of an official oath, or of duty by an act committed or omitted, or, without violating a posi- tive law, by the abuse of discretion- ary powers from improper purpose." (Johnson's Impeachment Trial, vol. i, p. 147.) See also the arguments in Chase's and Peek's Impeachment Trials, especially the arguments of Manager Charles A. 'Wickliffe and the respondent's counsel, William Wirt, in Peck's Trial, supra, § 90 ; Barnard's Impeachment Trial, vol. iii, p. 2038, per Grover, J., p. 2057. Peck's Im- peachment Trial, per Manager, after- wards President James Buchanan, p./ 428 ; per respondent's counsel, William Wirt, pp. 494-^95; Chase's Impeach- ment Trial, supra, § 90, infra, § 94; Prescott's Impeachment Trial, per Manager, afterwards Chief - Justice, Shaw, p. 182; Jackson's Impeachment Trial ; Hubbell's Impeachment Trial ; Page's Impeachment Trial; Botkin's Impeachment Trial, infra. Appendix to this volume; State v. George H. Hastings, Attorney-General, and oth- ers, 37 Nebraska, 96. 30 See Peck's Impeachment Trial, per Manager Charles A. Wickliffe, p. 312 ; Johnson's Impeachment Trial ; Prazier's Impeachment Trial; Hol- den's Impeachment Trial, infra. Ap- pendix. 31 Butler's Impeachment Trial, in- fra. Appendix. 32 Hubbell's Impeachment Trial ; Barnard's Impeachment Trial; But- ler's Impeachment Trial; State i;. Bourgeois, 45 La. Ann., 1350; s. c, 14 So. Eep., 28. See the quotation from State V. Hill, Ex-Treasurer, 37 Neb., 80, 90; quoted supra, § 92, note 15. 88 Trial of Henry W. Merritt, a Special Justice for preserving the peace in the city of New York. New York. Published by Gould, Barnes & Co., 1840. See § 95. 3* Supra, notes 23, 24. §93.J IMPEACHABLE OFFENSES. 599 while holding office but not when exercising an official function ; ^ until after conviction of an infamous crime or of a misdemeanor followed by a sentence which prevents his discharge of his official duties.^ In case of such a conviction, an officer of the United States or of a State where the Constitution provides no other method of removal, may, in accordance with the analogies of the common law, undoubtedly be removed by impeachment.^'' At least where there is another method of removal, an officer should not be impeached for physical or mental incapacity .^^ In Tyler's administration, John Quincy Adams in a report to the House of Representatives expressed the opinion that a President might be impeached for an abuse of the veto power.^s In the Virginia Convention Madison said that if the President " got up " a treaty " with surprise " he would be impeached ; *" and that "in- capacity, negligence or perfidy of the Chief Magistrate " should be a ground for impeachment.*^ Gouverneur Morris said : " The Executive ought, therefore, to be impeachable for treachery. Cor- rupting his electors and incapacity were other causes of impeach- 85 Supra, note 23; infra, § 95, notes land 2. »6 Infra, § 95. 8^ See the argument of Charles A. Wiokliffe, manager In Peck's Impeach- ment Trial, p. 309; Bagg's Case, H Coke, 99; Kex v. Kichardson, 1 Burr, 517, 538 ; Commonwealth v. Jones, 1 Bush (Ky.), 725; State u Humphries, 74 Texas, 466; Andrews v. King, 77 Maine, 224, 232. *' See, however, the language of Oouvemeur Morris quoted infra over note 42. In the case of Ward Hunt, Justice of the Supreme Court, who was incapacitated by illness, and re- fused to resign unless pensioned. Con- gress passed a bill giving him a pen- sion upon his resignation. A similar statute was passed in the case of a District Judge of the TJniteJ States. The brief of Ex-Judge William Law- rence, adopted by the managers of Johnson's impeachment trial, says: that the power of impeachment " may reach officers who, from incapacity or other cause, are absolutely unfit for the performance of their official duties, when no other remedy exists and the public interest imperatively demands it." (Johnson's Impeachment Trial, vol. i, p. 147.) See also the proceedings on Pickering's impeach- ment trial. ^ Keport on the Veto of the Tariff Bill, House Reports, 27th Congress, 2d Session, vol. v, No. 998 ; Brief of Wil- liam Lawrence in Johnson's Impeach- ment Trial, vol. i, p. 140. See, how- ever, the minority report of James F. Wilson and Frederick G-. Woodbridge upon the first proposition to im- peach Andrew Johnson, House Re- ports, 40th Congress, 1st Session, No. 7, p. 94. " Elliott's Debates, 2d ed., vol. iii, pp. 500, 516. 11 Madison Papers, ibid., vol. v, p. 341. 600 IMPEACHMENTS. [CHAP. Xni. ment. For the latter he should be punished not as a man but as an officer, and punished only by degradation from office." ^ In the first debate in Congress on the right of removal from office, Madison said that " the wanton removal of meritorious offi- cers would subject him to impeachment and removal from office."** If this construction had been adopted and enforced, few Presidents since John Quincy Adams would have escaped.** § 94. Convictions upon Impeachments in the United States. Convictions on impeachments and removals in some cases with disqualification have occurred in the United States as follows : Pickering, a district judge of the United States, for ordering a ship with her contents, which had been seized for an alleged vio- lation of the custom laws, to be delivered to the claimant without requiring a bond as provided by law ; for refusing to hear any testimony offered by the United States in a proceeding to con- demn the same vessel ; for refusing to allow an appeal by the United States in the case ; and for drunkenness and profanity on the bench.i Humphreys, a district judge of the United States, for a public speech inciting revolt and rebellion against the Con- stitution and government of the United States and a public declar- ation therein of the right of secession ; for supporting, advocating and agreeing to the Ordinance of Secession ; for organizing armed rebellion against the United States ; for joining in a conspiracy to oppose by force the authority of the United States ; for refusal to hold court; for unlawful acting as judge of the Confederate dis- trict court, and in such capacity making unlawful arrests and im- prisonments.^ Addison, a judge of a court of common pleas in Pennsylvania, for charging a petit jury in language disrespectful to an associate lay judge, and for refusing to permit his associate to charge a grand jury.* Sheriff Greenleaf, in Massachusetts, for *- Madison Papers, vol. v, p. 343. Andrew Johnson (House Keports, 40th *3 Elliott's Debates, 2d ed., vol. iv. Congress, 1st Session, No. 7, p. 86.) p. 380. See also opinion of Senator § 94. i Pickering's Impeachment Howe in Johnson's Impeachment Trial, Trial, supra, § 90. vol. iii, p. 71. 2 Humphreys' Impeachment Trial ^ See the minority report of James supra, § 90. P. Wilson and Frederick E.Woodbridge ^ A(j(jigQji'g impeachment Trial upon the first iJroposition to impeach imfra. Appendix to this volume. § 94.] CONVICTIONS IN THE UNITED STATES. 601 the embezzlement of public money ; for exhibiting false accounts and returns to the State treasurer ; and for procuring an execu- tion and a distress warrant for money which he had already col- lected.* Hunt, a justice of the peace in the same State, for making false entries in his records of appearances and proceeding by par- ties who had not appeared.^ Vinal, another justice of the peace there, for bribery and extortion.^ Prescott, a Massachusetts pro- bate judge, for collecting illegal fees.'^ Richard S. Thomas, a cir- cuit judge in Missouri, for unlawfully removing the clerk of his court and appointing his own son in his place ; for signing as surety a bond upon an appeal by his son to liis own court and then indefinitely postponing the trial ; and for conspiring with a lawyer to release on bail, without taking testimony, the latter's client who was charged with murder.^ Elliott, judge of the City Court of Lafayette County in Louisiana, for neglect of duty in failing to properly keep the records of naturalizations and permitting his clerk to issue false certificates.^ Wickliffe, auditor of the public accounts of Louisiana, for issuing a warrant for the payment of a claim which he knew to be illegal.^" Bates, treasurer of Califor- nia, for misuse and waste of the State funds. Hardy, a district judge in California, for public language when off the bench express- ing his sympathy with the Southern Confederacy.^^ Robinson, secretary of State, and George S. Hillyer, auditor, of Kansas, for selling bonds of the State at a less price than was authorized by law and at less than they might have obtained ^^ for the same. Frazier, judge of a Criminal Court in Tennessee, for releasing by habeas corpus a member of the State house of representatives from the custody of the sergeant-at-arms.^^ Governor Holden of North Carolina, for refusing to obey a writ of habeas corpus, in imitation * Appendix to Prescott' s Impeach- i" Wiokliffe's Impeachment Trial, ment Trial, pp. 212-214 ; see Appendix infra. Appendix, to this Yolume. ^^ Bates' Impeachment Trial, in- 6 Ibid., pp. 214^216. See Appendix, pa. Appendix. Hardy's Impeachment " Ibid., pp. 216-217. See Appendix. Trial, wi/ra. Appendix. ' Prescott's Impeachment Trial, i^ Impeachment Trials of John W. infra. Appendix. Eobinson and George S. Hillyer. See 8 See Jackson's Impeachment Trial, Appendix. pp. 336-337 ; Appendix, infra. " Frazier's Impeachment Trial, mi- 9 Elliott's Impeachment Trial, Ap- fra, Appendix, pendix; infra. 602 rMPBACHMENTS. [CHAP. XIH. of President Lincoln, without legislative authority. Governor Butler of Nebraska for embezzling the public funds. Lieutenant- governor Davis of Mississippi, for selling a pardon to a convicted murderer during the absence of the governor from the State. Judge Osborne of Georgia for falsifying returns of an election to Congress. Goldsmith, comptroller-general of Georgia, for the ille- gal collection and appropriation to his own use of insurance fees and taxes and making false reports concerning his collections.^* Judge Barnard of New York for unjust partiality to suitors to whom he gave illegal orders, and for language on the bench which brought the administration of justice into disrepute.^^ Seeger, treasurer of Minnesota, for improper investments of the State funds and concealment of the delinquency of his predecessor. Judge Cox of Minnesota for drunkenness on the bench and when in the discharge of official functions off the bench. Laverty, keeper of the New Jersey state prison, for licentious intercourse with female convicts ; and Connelly, a New Jersey justice of the peace, for an assault upon a lawyer in his office.^^ § 95. Causes for which Public Ofllcers may be Removed. The following decisions as to the causes for which public officers who do not hold office at the pleasure of the appointing power may be removed, offer analogies that may be useful. A public officer cannot be removed for a crime which is not a violation of his official duty until after conviction by a court having jurisdic- tion of such crime. ^ After such a conviction he may be removed if the crime is infamous, or even if it is a mere misdemeanor, when he is sentenced to a term of imprisonment which will prevent him from discharging his official duties.^ " See their respective trials in the Texas, 466 ; Andrews v. King, 77 Appeudlx, infra. Maine, 224, 232. But see Oliver v. w Barnard's Impeachment Trial; City Council, 69 Ga., 165; People v. supra, § 93, notes 25, 26; infra, Appen- Board of Police, 11 Hun. (N.Y.), 403 ; dix. People v. French, 32 Hun. (N.Y.). 112 ; 18 See their respective trials in the s. c. 60 How. Pr. (N.Y.), 377; and Appendix, infra. other cases cited in American and § 95. 1 Bagg's Case, 11 Coke, 99 ; English Encyclopeedia of Law, vol. Eex V. Eichardson, 1 Burr, 517, 538 ; xix, p. 562, in Note 1. Commonwealth v. Jones, 10 Bush 2 Hji^. But see Commonwealth v. (Ky.), 725; State v. Humphries, 74 Shaver, 3 Watts & S. (Pa.), 338. § 95.] CAUSES OF REMOVAL. 603 The following acts have been held such breaches of official duty as to constitute a cause for removal from office : demanding and receiving illegal fees ; ^ receiving bribes ; * the persistent refusal by a county clerk to perform his duties as clerk of the board of county commissioners, although he believed that the action which they contemplated was illegal ; ^ the persistent refusal by a county attorney to prosecute violations of the liquor law, although he based his refusal upon his belief that the sentiment of the commu- nity was opposed to the enforcement of the law ; ^ the repeated removal of government landmarks by a county surveyor, although he claimed the right to do so for the purpose of rectifying the original survey ; '^ the use by superintendents of the poor of their official power and the poor fund to compel the recipients of their favor to vote under their dictation ; ^ the failure by the same of- ficers to refund to the treasurer money repaid them by persons to whom they had given temporary relief ; ^ the action of the same officers in drawing orders on the county treasurer in favor of per- sons named therein, collecting the drafts themselves and com- pelling the payees to take from them goods at exorbitant prices in payment of the drafts ; ^° the act of a county clerk in knowingly permitting a material alteration of his official records ;^^ the certification by a board of State canvassers of an erroneous state- ment of the votes upon a constitutional amendment prepared by their clerk and not examined by them,^^ and the false certification of fictitious records by a county clerk ^^ without proof of corrup- tion in either case ; the false certification by a register of deeds over his official signature that he had examined a title and found it unencumbered although no statute authorized a certificate by him.i* A statute providing for the removal of a public officer for habitual intoxication or for voluntary intoxication in business " Braokenridge v. State, 27 Texas ° Ibid. App., 513. 1° Ibid. * State V. Jersey City, 1 Butcher, " Commonwealth v. Barry, Hardin N. J. Law, 536. (Ky.), 229. 5 State D. Allen, 5 Kansas, 213. ^ Attorney-General ex rel. Eich v. estate v. Foster, 32 Kansas, 14; Joohim (Mich.), 58 N. W. Kep., 611. s. 0. 112 IT. S., 201. ^' Commonwealth v. Chambers, 1 J. ' Minkler v. State, 14 Nebraska, 181. J. Marsh (Ky.), 160. 8 Gager v. Board of Supervisors of " State v. Leach, 60 Maine, 58; B. o. Chippewa County, 47 Mich., 167. 11 Am. Rep., 172. 604 IMPEACHMENTS. [CHAP. XIH. hours was held constitutional as providing for a removal from ofEce for incapacity.15 Where an officer assumed duties which he was not required to perform, it was held that he might be removed for want of skill in their performance.^^ It has been said that it is " proper to separate the character of the man from the character of the officer " ; that " a very honest man may make a very indif- ferent clerk, and a man despicable for his vices may make an ex- cellent clerk." 1" It was held in Kentucky, that the intoxication of a county judge while in the performance of his official duties when issuing letters of administration was not misfeasance in office,!^ by a general term in New York, that the use of obscene and abusive language by a police-captain when off duty was not "illegal, corrupt or otherwise improper conduct" for which he could be removed ; ^ but it has been held misfeasance in office for a policeman to attack with his official club a private citizen when off duty and seeking redress for a private wrong.^" It has been held that an officer cannot be removed because he was ineligible or disqualified at the time of his appointment, the remedy being a quo warranto ; ^^ nor for an act previously performed, such as brib- ery of a voter before his election, which might be a ground for con- testing the election,^ unless the act was a breach of official duty committed while in the same office during an immediately prece- dent term ; ^ nor for failure to execute a bond required by law ; ^ nor in the case of a postman for failure to attend the great court on four occasional meetings, and a meeting upon a stated day.^ ^5 MoComas v. Krug, 81 Indiana, is People ex rel. Lee v. Doolittle, 327; s. c. 42 Am. Eep., 135. See also 44 Hun. (N. T.), 293. State i;. Gilmore, 20 Kansas, 651 ; s. c. ^o Oliver v. City Council, 69 G-a., 27 Am. Eep., 189. But see Common- 165; People ex rel. Hayes v. Carroll, 42 wealth V. Williams, 79 Ky., 42; s. c. Hun. (N. Y.), 438. 42 Am. Eep., 204. 21 Commonwealth v. Lancaster, 5 w People ex rel. Campbell D. Camp- Litt. (Ky.), 161; People ex rel. Olapp bell, 82 N. Y., 247. v. Board of Police, 72 N. Y., 415 ; " Commonwealth v. Chambers, 1 J. Ellison v. E^leigh, 89 N. C, 125. J. Marsh (Ky.), 108, 160, per Under- 22 Commonwealth ij. Shaver, 3 Watts wood, J. & S. (Pa.), 338. People v. Merritt, 18 Commonwealth v. Williams, 79 see supra, § 93, note 33. Ky., 42 ; s. o. 42 Am. Eep., 204. Con^ 23 Supra, § 93, note 32. tra. King v. Mayor and Burgeses of 24 Hyde v. State, 52 Miss., 665; Glocester, 3 Bulstrode, 189 ; King v. Commonwealth v. Sliter, 25 Pa. St., Taylor, 3 Salkeld, 231 ; Commonwealth 23. 1). Alexander, 4 H. & M. (Va.), 522. 25 Kex v. Eichardson, 1 Burr, 517, § 96.] EEMOVAL OF JUDGES. 605 § 96. Kemoval of Judges. Analogous to impeachments are proceedings for the removal of judges. In England judges can be removed by the crown upon an address by both houses of Parliament.^ There is no similar provision in the Constitution of the United States, which gives no remedy except impeachment for the misbehavior of a judge. The constitutions of several of the States have provisions similar or analagous to the English practice. In Massachusetts, judges may be removed by the governor and council or the address of both houses of the legislature.^ It has been the usual practice in Massachusetts to give the petitioners for the removal and the respondent a hearing, with permission to be represented by coun- sel and to offer evidence before a joint committee of both houses. In New York, — "Judges in the Court of Appeals, and justices of the Supreme Court, may be removed by concurrent resolution of both houses of the Legisla- ture, if two-thirds of all the members elected to each house concur therein. All judicial ofHcers, except those mentioned in this section, and except justices of the peace and judges and justices of inferior courts not of record, may be removed by the Senate, on the recommen- dation of the Governor, if two-thirds of all the members elected to the Senate concur therein. But no removal shall be made, by virtue of this section, unless the cause thereof be entered on the journals, nor unless the party complained of shall have been served with a copy of the charges against him, and shall have had an opportunity of being heard. On the question of removal, the yeas and nays shall be entered on the journal." Similar provisions exist in nearly all the other State constitutions, and a number of State judges have been thus removed. The pro- ceedings are usually judicial in their nature ; * but no case has 544. See on the subject of this section * An account of a number of these Mechem on Public Officers, book ii, proceedings may be found in the Ap- ch. vi. pendix to this volume, infra. The § 96. 1 12 and 13 W. III. Pennsylvania Senate held by a party ''Constitution of Massachusetts, vote in 1891 that it had no jurisdiction Ch. Ill, Art. 1. to remove an officer for an impeacha- 3 New York Constitution, Art. VI, ble offense before his conviction upon Sec. 11. Similar provisions may be impeachment or indictment. See the found in most State constitutions. proceedings against Boyer and Mo- 606 IMPEACHMENTS. [CHAP. XIII. occurred where an attempt has been made by the courts to review them for irregularity by certiorari or otherwise. The most remarkable cases were two removals by State legisla- tures of judges for obedience to the Federal Constitution: that of Judge Loring in Massachusetts for the enforcement of the Fugitive Slave Law; and that of Judge Hindmanin West Virginia for following a decision of the Supreme Court of the United States which overruled a decision of the State court of appeals and held a statute unconstitutional which disqualified attorneys for partici- pation in the Rebellion.^ § 97. Preliminary Proceedings on Impeachments. An impeachment is usually preceded by the presentment to the House of Representatives of charges against an officer, either by a message from the President,^ the petition of a private citizen,^ or the speech of a member of the House.^ Thereupon a committee is usually appointed to consider and report upon the charges, which takes testimony concerning the same.* If the accused de- mands a hearing before the committee, that is usually accorded to him, although the committee has discretionary power in that re- spect. If the committee determines that the officer should be impeached, it makes a report containing a statement of the charges and a recommendation of a resolution that he be impeached therefor. On the adoption of the resolution by the House a com- mittee is appointed to impeach him at the bar of the Senate, to state there that articles against him will be exhibited in due time and made good before it, and to demand that it take order for his appearance to answer to the impeachment. Thereupon, the Senate usually refers the resolution to a committee appointed for that purpose.^ This committee reports a preamble reciting the pro- ceedings on the part of the House before the Senate ; and a reso- lution : " that the Senate will, according to its standing rules and Camant. Compare John Quincy Ad- s As in Chase's Case (Smith's ed.), •ams' Diary, vol. i, p. 255. The weight p. 1. of authority, however, supports such * Attorney - General Charles Lee removals. See Appendix, infra. gave an opinion that this was neees- 5 See Appendix, infra. sary. 20 American State Papers, 151. § 97. 1 As in Pickering's Case, An- ^ Belknap's Impeachment Trial, nals of Congress, 1802-1803, p. 460. pp. 7-8. ^ As in Peck's Case, p. 1. § 98.] ARTICLES. 607 orders in sucli cases provided, take proper order therein, (upon presentation of the articles of impeachment), of which due notice will be given to the House of Eepresentatives " ; and that the Secretary of the Senate acquaint the House therewith; which is accordingly adopted.® § 98. Articles of Impeachment. The articles, as the charges are termed, are then prepared by a committee of the House of Eepresentatives, and after they have been reported to and approved by the House, they are presented in a like manner to the Senate. It is customary to have them signed by the speaker and attested by the clerk of the House. In Edmonds' case, the constitution of Michigan provided that no impeachment should be tried by the State senate until after the final adjournment of the legislature.^ A statute was passed au- thorizing the State house of representatives to empower the mana- gers of an impeachment "to prepare and present articles of im- peachment in accordance with the resolutions of said House." ^ It was held against the objection of the respondent, which was ably argued, that the statute was constitutional and that articles prepared and presented to the senate by the managers after the house had passed a resolution of impeachment were sufficient although not presented to the house.^ In Barnard's case, the New York constitution provided that " The assembly shall have the power of impeachment by a vote of the majority of all the members elected."* The assembly journal showed that the reso- lution of impeachment passed by the constitutional majority, but was silent as to the number who voted to adopt the articles, and did not set forth the articles at length. The articles were not authenticated by the signature of the speaker. The respondent filed a plea, that the articles were not adopted by a majority of the members elected to the assembly, to which the managers re- plied traversing this allegation. Against the objection of the re- spondent, oral testimony was admitted to prove that the articles were adopted by a majority vote and to identify the articles pre- ^ Belknap's ImpeachmentTrial, p. 8. ' Edmond's Impeachment Trial, pp. § 98. 1 Constitution of Michigan, 86-184, 188, 1866, 1869-1879. Art. XII, Sec. 3. ^ New York Constitution of 1846, 2 Michigan, Act of March 30, 1872. Art. VI, Sect. 1. 608 IMPEACHMENTS. [CHAP. XIH. sented to the Senate with those adopted by the assembly ; upon which the plea was overruled.^ On the trial of Judge Page in Minnesota, a plea to the juris- diction contained in the respondent's answer set up that the journal of the house of representatives did not show the articles of impeachment had been approved by the vote of the majority of the members elected. The journal showed simply " That the articles were presented and duly adopted." Without taking testimony the senate overruled the plea.® In Holden's impeachment trial in North Carolina, the house of representatives made an order amending an article of impeachment by substituting another person for the one originally named as in- nocent of the unlawful act charged against the respondent. An objection was made to this amendment upon the ground that it could not be allowed unless new witnesses were examined before the house, or a committee thereof, in support of this charge.'^ The amendment was allowed without this requirement. The answer was thereupon amended so as to meet this new article and a replication thereto made by the house.^ In Hubbell's case in Wisconsin the managers were allowed to amend the articles by correcting an error in the name of a place mentioned in the speci- fications. A new plea and answer were then filed to the amend- ment; and the respondent's counsel claimed that the senate should be resworn.^ The New York court for the trial of impeachments held in Barnard's case that it had no power to grant a motion by the re- spondent to strike out part of an article or to compel an amend- ment of the same.i" The supreme court of Nebraska held that the legislature could not delegate to the managers the power to make such a substantial amendment as amounted in effect to a new article. 11 5 Barnard's Trial, pp. 66, 67, 97-146. gomery Blair, counsel for the respon- « Page's Impeaohment Trial, pp. dent in Belknap's Impeachment Trial, 101-110 ; infra, Appendix. p. 100. ' Citing opinion of Attofney-Gen- » Hubbell's Impeachment Trial, pp, eral Charles Lee, American State Pa- 187-188, 241, 533. pers, vol. XX, p. 101. lo Barnard's Impeachment Trial, pp. 8 Holden's Impeachment Trial, pp. 192, 193. 61-72, 100, 101, supra, § 94; infra, "State v. Leese, Ex-Attorney- Appendix. See the argument of Mont- General, 37 Neb., 92, 94. § 98.] AUTICLES. 609 In Page's impeachment trial the counsel for the respondent moved to quash one of the articles as insufficient, because indefi- nite. The motion was denied, with a provision that no evidence should be received under the article unless the managers should on or before a certain date furnish and file in the case a bill of particulars to that article. The counsel for the respondent objected to this upon the ground, that it amounted to a permission to the managers to amend the article without any action of the house of representatives thereupon, and was in effect a permission to the managers to present a new article of impeachment, which power even the house itself could not have delegated to them ; but the objection was overruled.^ The articles need not pursue the strict form of an indictment.^^ Great looseness is allowed in their construction ; and it is customary to mingle rhetoric as well as arguments with the statements of fact which they contain. In England, no demurrer to an article of im- peachment has ever been admitted ; ^^ but our American practice affords more safeguards to the accused. i^ The articles must con- tain sufficient certainty to enable the respondent to properly pre- 12 The article was as follows : — son's Lectures, vol. ii, pp. 605, 606 ; " Article X. Throughout the term Comyn's Digest, Parliament, L. 21 ; of office of said Sherman Page as Foster's Crown Law, pp. 389, 390 ; Judge of the district court in and for Story on the Constitution, 5th ed., said county of Mower, to wit: since §808; Manager George Frisbie Hoar, or or about January 1st, 1873, he, the Belknap's Impeachment Trial, pp. 73- said Sherman Page, as such judge, has 75. In Barnard's Impeachment Trial, habitually demeaned himseU towards Judge Allen said (at p. 2041) : "If he the officers of said Court and towards has been guilty of mal or corrupt ad- the other officers of said county of ministration of his office of Judge of Mower, in a malicious, arbitrary and the Supreme Court, and the facts con- oppressive manner and has habitually stituting the alleged malfeasance, and used the power invested in him as the actions or proceedings on which such judge to annoy, insult and op- the orders were made or judgments press such officers, and all other per- given are set forth distinctly and sons who have chanced to incur the clearly in the articles, he can be con- displeasure of him the said Page." victed, although the particular intent (Page's Impeachment Trial, pp. 20, with which the acts were done or the 163, 172, 232.) particular inducement by which he 12 Lord Wintown's Impeachment was led to act are not alleged." Trial, Howell's State Trials, vol. xv, " Keport on the Lords' Journals, pp. 875-891; Keport on the Lords' Burke's Works, Little & Brown's ed., Journals, Burke's Works, Little & vol. xi, p. 13. Brown's ed., vol. xi, pp. 13-41 ; Woode- i* Infra, § 103. 610 IMPEACHMENTS. [CHAP. XIEI. pare his defense and to avail himself of an acquittal thereupon as a bar to another impeachment.^^ It is usual, when the article charges a course of conduct, to include therein a number of speci- fications of such conduct. In Cox' case, before the Minnesota senate, demurrers to certain articles were overruled, but the board of managers were required to furnish the respondent with specifi- cations as to them. The senate ruled that if no such specifications should be furnished no evidence should be received under those articles ; and after the specifications were filed excluded all evi- dence in support of one of such articles, and dismissed the same.^^ § 99. Service of Process on Impeacliment. As soon as the articles are thus presented, the Senate issues a process summoning the party to appear before it to answer the articles at a given day. This process is in the form of a summons, reciting the articles and notifying him to appear before the Sen- ate at a time and place named therein, which is fixed by it, to file his answer to the articles, and to abide the orders and judgment of the Senate thereon.^ A precept for the writ naming the time before the return-day allowed for the service is issued to the ser- geant-at-arms of the Senate, who serves the writ either in person or by deputy.2 In Johnson's case the return-day of the summons to the President was one week after its issue was ordered.^ In Belknap's case the return-day was twelve days after the order.* In the earlier impeachments, when the accused lived a long dis- tance from the place of trial and the means of travel were more diificult and slow than now, more time was allowed. The sum- mons is served either by the delivery of an attested copy to the person accused ; or if that cannot conveniently be done, by leaving " Story on the Constitution, 8th 16. In Minnesota service of a copy Am. ed., § 808. of the impeachment must be made on " Impeachment Trial of Judge Cox, the respondent at least twenty days pp. 161, 520, 527, 1002. See supra, before the trial (Art. XIII, See. 5). § 93, note 23. The rule is the same in North Dakota § 99. 1 Senate Bules for Impeach- (Art. XIV, Sec. 200) ; South Dakota ments, VIII. (Art. XVI, Sec. 7). In New Harhp- 2 Ibid., VI. shire service of a citation must be 3 Johnson's Impeachment Trial, p. made at least fourteen days before 16. the trial (Art. 38). * Belknap's Impeachment Trial, p. § 99.] PROCESS. 611 such a copy at his last known place of abode, or at his usual place of business in some conspicuous place therein ; or if such service is in the judgment of the Senate impracticable, notice to the accused to appear may be given in such other manner, by publication or otherwise, as the Senate deems just. If the writ cannot be served on time, it does not abate, but further service may be made in such manner as the Senate directs.^ In Humphreys' case the process was served by lea,ving a copy of the same at the residence of the respondent, who could not be found in that vicinity. On his failure to appear in pursuance of the summons, a proclamation for his appearance was served, by order of the Senate, by publication in three newspapers in Wash- ington at least forty days successively, and one newspaper pub- lished at his residence for five days successively.^ The old English custom was to cite the party by a writ directed to himself or to require the sheriff to summon him, and if he could not be found to proclaim throughout the realm that if he did not attend on the day fixed he would be attainted.' In later times, when the accused could not readily be apprehended, the king was addressed in order that the ports might be stopped, that he might be prevented from taking shelter in the royal palaces, and at the same time all persons were prohibited under certain penalties from harboring and concealing him.^ There is no provision or authority under the Constitution of the United States for the arrest of the accused by the Senate or his suspension from office pending the impeachment.^ Blount, who, however, was a member of the Sen- ate, was arrested and held to bail until the termination of his ^ Kules for Impeachments, VIII. 278 ; Von Hoist's Constitutional Law, 6 Humphreys' Impeachment Trial, pp. 162-163. Tiffany in his Treatise Congressional Globe, 2d Session, 37th on Government and Constitutional Congress, part iv, p. 2942. Law, p. 354, argues that Congress may 'Woodeson's Lectures, vol. 11, p. arrest an Impeached president or other 604; citing 4 Inst. 38-39; 3 Selden's officer and suspend him from office Works, 1621. pending the proceedings. Pomeroy, in 8 Ibid., vol. ii, p. 604 ; citing 2 St. his Constitutional Law, § 128, that Tr., 573, 732 (ed. 1730) ; Com. Joum., this cannot be done to an officer April, 1679. • whose term is fixed by the Constitu- 9 See Professor Dwight's Lecture tion, but that it might be when his on Trial by Impeachments in American term of office is merely statutory. Law Register, N. S., vol. vi, pp. 276- 612 mPBACHMENTS. [CHAP. XIII. trial.i" Several State constitutions have provisions authorizing a suspension from oiSce in such a case.^^ In the State of Arkansas, the impeachment of Governor Clayton began by several members of the house locking the governor in the executive chamber.^ § 100. Managers of Impeachment and Counsel for Prosecution. A committee of managers is also appointed by the House to ■conduct the impeachment. These managers are always members 'of the House, and usually lawyers. In no case has the House of Representatives of the United States employed counsel to assist the managers upon a trial of an impeachment. In some States i;he houses of representatives have employed counsel to assist the :nianagers.i It was decided by the senate of California in Hardy's ■case that this might be done.^ On Barnard's trial, the New York assembly was represented by a committee of the New York City Bar Association as well as hy the managers, and the former had full control of the proceedings.^ § lOl. Swearing- of the Senate. The Constitution provides that the Senate, when sitting for the purpose of impeachment, "shall be on Oath or Affirmation." ^ The members of the House of Lords are not sworn, but give their votes upon their honor.^ It was natural that in a country where no privileged caste among white men was recognized, the senators !» Wharton's American State Trials, 386 ; supra, § 38, over note 167 ; § 88, pp. 201-202, 250 ; supra, § 90. over notes 16 and 17. See Appendix, 11 In Louisiana (Art. 198), North infra. Daliota (Art. XIV, Sec. 198), South § 100. i In Addison's Case and that Dakota, Art. XVI, Sec. 5), an officer of McKean and his associates in Penn- cannot perform his official functions sylvania ; Hubbell's Case in Wisconsin after impeachment and before his ae- and Hardy's Case in California ; mfra, quittal. So in Michigan (Art. XII, Appendix. Sec. 24), and New Jersey as regards 2 Hardy's Impeachment Trial, pp. judicial officers (Art. VI, Sec. 3) ; and 26, 167-173. In Hubbell's Case the in New York as to judicial officers State paid one of its counsel $3,000 after the articles " have been preferred (ibid.). to the Senate " (Art. VI, Sec. 13). See s See Appendix, infra. In the Matter of the Executive Com- § 101. i Constitution, Article I, Sec- munication, 12 Pla., 653 ; and Appen- tion 3. dix, infra. 2 Blackstone's Commentaries, vol. i, 12 Atlantic Monthly, vol. xxix, p. p. 402. § 102.] APPBAKANCE. , 613 should' be bound in the same way as judges and jurors for the administration of justice. The oath or affirmation is administered to the senators by the presiding officer for the time being of "the Senate.^ When the Chief -Justice presided the oath was admin- istered to him by one of the associate justices of the Supreme Court.* When the Vice-President presided it was customary under the former rules to have him sworn by the secretary of the Senate.^ If the respondent wishes to exclude a member of the Senate from the trial, the safer practice is for one of the other senators to object to his being sworn.^ § 102. Appearance of the Accused. On the return day of the process, after the senators have been sworn, the person impeached is called in their presence to appear and answer the articles. If he fails to appear in person or by at- torney, his default is recorded and the Senate proceeds ex parte in the trial of impeachment in the same manner as if a plea of not guilty had been filed.^ ^On the trial of Judge Pickering, although the judge did not appear, the Senate received a petition from his son which alleged his insanity, and prayed a postponement and leave to defend for him. This was presented by counsel for the petitioner, who dis- claimed any appearance for the judge. Against the protest of the managers and after their withdrawal to take the opinion of the House upon the subject, the counsel was allowed to present evidence of the judge's insanity in the form of depositions ; but the managers returned and the trial went on in the same manner as if the petition and the depositions in support thereof had not been presented.^ 8 19 St. at L., 34; Rules for Im- ment, VIII, X; Pickering's Impeach- peachment, III; Belknap's Impeach- ment Trial, Annals of Congress for ment Trial, pp. 14, 15, 21, 24, 29, 229, 233. 1803-1804, pp. 315-367; Humphreys' * Johnson's Impeachment Trial, p. Impeachment Trial, Congressional 11. Globe, 2d Session, 37th Congress, 6 Chase's Impeachment Trial, 1862, part iv, pp. 2942-2953. As to Smith's ed., p. 12 ; Peck's Impeach- the necessity of an appearance in per- ment Trial, p. 58. son, see svfpra, § 90, note 36. 6 See, however, Johnson's Impeach- "^ Pickering's Impeachment Trial, ment Trial, vol. iii, pp. 360-400. Annals of Congress for 1803-1804, pp. § 102. 1 Senate Bules for Impeach- 328-367. 614 IMPEACHMENTS. [CHAP. XIH. Upon Humphreys' trial no appearance was made on benalf of the respondent, and all the proceedings were consequently ex •parte? The accused may appear in person or by attorney. In every trial before the Senate of the United States, where there has been no default, the accused has appeared by counsel. In several of the State impeachment trials, notably those of Addison* and Jackson,^ the accused has conducted his own defense. The sen- ates of several States have assigned counsel to the respondent at his request, and in such a case a law may be passed providing for their payment by the State.^ On the impeachment trial of John W. Robinson, Senator Ingalls objected to the further appearance of one of the respondent's counsel because he had publicly de- clared out of court that the Senate was a jury packed against his clients. The counsel thereupon withdrew.^ § 103. Pleadings of the Respondent. On the appearance of the respondent upon an impeachment he is entitled to be furnished with a copy of the articles, and time is allowed him to prepare his answer thereto. If he fails to plead, the trial proceeds as if a plea of not guilty had been made, and he may be allowed to defend by counsel notwithstanding.^ No demurrer to an article of impeachment has been filed or sustained m the House of Lords.^ In the Senate of the United States no demurrer has ever been sustained, although in the cases of Blount and Belknap, pleas and replications thereto which were analogous to demurrers were filed and argued. In the case of Sheriff Greenleaf in Massachusetts, demurrers general and special to the several articles of impeachment were incorporated in the 3 Humphreys' Impeachment Trial, Trial, swpra, § 90. But see Bates' Congressional Globe, 2d Session, 37th Trial, infra. Appendix. Congress, 1862, part iv, pp. 2942- ^ Report on the Lords' Journals, 2953 ; Senate Rules for Impeachments, Burke's Works, Little & Brown's ed., X. vol. xi, p. 13. On Suffolk's impeach- * Infra, Appendix. ment, when the respondent failed to ' Infra, Appendix. answer but placed himself on the 6 Botkin's Impeachment Trial, p. king's disposal, it was held that as to 72; infra. Appendix. one article he was "neither declared ' Impeachment Trial of John W. nor charged." (Stubbs' Constitutional Robinson, pp. 248-249. History, vol. ili, p. 148.) § 103. 1 Belknap's Impeachment § 103. J PLEADINGS OF RESPONDENT. 615 respondents' answer, but were overruled.^ On the trial of Judge Cox before the senate of Minnesota, demurrers to several articles were filed and argued. The Senate in two or three cases over- ruled the demurrer, but directed that a bill of particulars of the articles should be furnished to the accused, and in the case of one article after the bill of particulars had been furnished, determined to hear no further evidence in support of the charge.* On the impeachment trial of Judge Botkin, the Kansas senate sustained demurrers to several articles.^ A plea analogous to a plea at common law may be filed to the articles. This was done in the cases of Blount and Belknap. The usual course, however, is for the accused to answer. No strictness of form is required by the answer. An answer stating simply that the accused is not guilty of each charge is sufficient.® A party may, however, offer affirmative reasons as well as facts against the charges, and for the purpose of influencing public opinion, which has more weight with the tribunal in this class of cases than any other, that is the usual practice. The answer usually begins with a reservation of all exceptions to the insuffi- ciency of each article and to the jurisdiction of the court; then separately traverses each allegation in each article ; and also pleads separately in justification or excuse of the alleged offenses, all the circumstances attendant upon each case. The answer may be accompanied by exhibits of public documents or court records in support of the defenses pleaded. On Belknap's impeachment trial the respondent was allowed, after his plea to the jurisdiction had been overruled by a majority of less than two-thirds, to file a protest against further proceed- ings. Thereupon it was ordered that the trial proceed as if a plea of not guilty had been filed.'^ On the impeachment trial of John W. Robinson, the Kansas senate refused to allow the respondent to file a protest against its jurisdiction on the ground that the " Prescott's Impeachment Trial, « Hopkinson's Impeachment Trial, Appendix, pp. 213-214 ; supra, § 94, Nicholson's Impeachment Trial, Addi- mfra, Appendix. son's Impeachment Trial, infra, Ap- * Cox' Impeachment Trial, p. 527 ; pendix. supra, § 93, note 24. ' Belknap's Impeachment Trial, pp. 5 Botkin's Impeachment Trial, pp. 530-542 ; svpra, § 90. See, however, 245-265 ; swpra, § 93, note 23. Bates' Trial, infra, Appendix. 616 IMPEACHMENTS. [CHAP. XIH. lower house had adjourned without a day; but allowed the ques- tion to be raised by a motion that no action be taken.^ On Governor Warmoth's impeachment in Louisiana his triers refused to permit him to file exceptions to the jurisdiction upon the ground that neither they nor his impeachers were a lawful legis- lative house.^ Upon Bates' impeachment trial, the California senate refused to allow any objection to the jurisdiction before the respondent pleaded to the articles.^" § 104. Keplication. After a plea or answer is prepared and filed, the next regular proceeding is for the House of Representatives to file a replication to the same in writing. In case of a plea, the replication may be in the nature of a demurrer.^ In the case of an answer, the repli- cation usually denies the truth and validity of the defense therein stated and avers the truth and sufficiency of the charges and the readiness of the House to prove them at such time and place as shall be appointed for that purpose by the Senate. The replica- tion must be authorized by the House, of Representatives and can- not be filed by the managers on their own responsibility, at least in the absence of a statute authorizing such a practice.^ The practice in the United States upon that subject is the same as pre- vailed before the House of Lords ; although on the trial of Lord Strafford, no replication was filed by the Commons, which, ac- cording to a learned commentator, was " a mark probably of con- temptuous insult and disdain."^ § 106. Proceedings on the Trial of an Impeachment. A time is then assigned for the trial, and the Senate at that time or before adjusts the rules of its proceedings. The Senate of the United States has adopted twenty-five " standing Rules of Procedure and Practice in the Senate when sitting on the Trial of Impeachments." i " The presiding officer is ordinarily the Vice- 8 Impeaohment Trial of John W. American State Trials, p. 261 ; Bel- Bobinson, pp. 107-133. knap's Case, pp. 79-80. " Warmoth's Impeachment Trial, = Supra, §§ 98, 100. infra, Appendix. s Woodeson's Lectures, vol. ii, p. 1" Bates' Impeachment Trial, infra, 607. Appendix. § 105. i Senate Manual, pp. 165-173. § 104. 1 Blount's Case, Wharton's § 105.] PEOCEEDIKGS ON THE TRIAL. 617 President, or in his absence the President pro tempore of the Senate." ^ When the President of the United States is tried, the CMef-Justice of the United States presides.^ Who should pre- side when the Vice-President is tried has not been determined;* probably the president pro tempore of the Senate. Chief- Justice Chase had doubts as to whether the rules of procedure previously- adopted by the Senate were binding unless re-enacted after he had opened the session of the Court of Impeachment, and out of abun- dant caution the rules were then readopted.^ Such a course was con- sidered needless on the subsequent trial of Belknap, where no new element was added to the Senate.^ The rules provide that — "the presiding officer on' the trial may rule all questions of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision; or he may at his option, in the first instance, submit any such question to a vote of the members of the Senate. Upon all such questions the vote shall be without a division, unless the yeas and nays be demanded by one-fifth of the members present, when the same shall be taken." ' On President Johnson's trial the power of the Chief-Justice to do anything except put the question was disputed by Senator Charles Sumner and others ; but the Senate voted that he had the full power given by the rule and Constitution to the president of the Senate : and he exercised this throughout the trial, ruling pre- liminarily upon questions of evidence and practice, and in two such cases giving the casting vote ; but did not vote on the final question which he put.^ 2 Constitution, Article I, Section 3. except of course wlien he himself is 8 Ibid. tried, or is otherwise disqualified. * In Montana (Art. V, Sec. 6), ^ Johnson's Impeachment Trial, p. North Dakota (Art. XIV, Sec. 195), 12. South Dakota (Art. XVI, See. 2), and « Belknap's Impeachment Trial, pp. Michigan (Art. XII, Sec. 2), it is pro- 19, 20 ; swpra, § 90. vided that when the governor or lieu- ' Senate Kules for Impeachments, tenant-governor is tried, the Chief- VII. Justice of the Supreme Court shall s Johnson's Impeachment Trial, vol. preside. In Georgia (Art. Ill, Sec. 5), i, pp. 185-187, 276 ; vol. ii, p. 480, 488, Florida (Art. Ill, Sec. 29) and West Sumner's opinion on the subject is Virginia (Art. V, Sec. 9) ; the president reported in vol. iii, pp. 281-294. At of the highest court always presides, the trial of Lord Melville, Lord Chan- 618 IMPEACHMENTS. [CHAP. XHI. On the day appointed for the trial, the House of Representa- tives appears at the bar of the Senate either in a body or by managers selected for that purpose. Before that time, at the re- quest of either party, subpoenas to secure the attendance of the witnesses may be issued and served by the officers of the Senate in accordance with its rules. Several States have constitutional provisions authorizing or requiring the trial of impeachments by the senate after the adjournment of the lower house.® In their absence — 9,nd none such exists in the Constitution of the United States — the power of the Senate to try an impeachment after the final adjournment of the House is extremely doubtful.^'' The Senate of the United States has never assumed such power, and in Belknap's case voted that it did not exist.^i Whether an impeachment abates by the expiration of the terms of the members of the House of Representatives that voted it has never been decided in the United States. In Warren Hastings' trial in 1791, it was determined by Parliament, most of the law- yers voting in the minority, that an impeachment did not abate by a dissolution, and might be continued by the next Parliament. The previous precedents were conflicting.^^ Although this position has been disputed,i^ it is settled by precedent that the Senate on the trial of an impeachment sits as a court and not as a legislative body ; and the proceedings are entitled cellor Erskine, who was, however, a and Charles Kobinson ; Barnard's Im- peer, decided all questions of evidence peachment Trial ; Mather's Impeach- without dispute. ment Trial, Appendix, infra. « By the constitution of West Vir- n Belknap's Impeachment Trial, ginia(Art. VI, Sec. 9): "The Senate p. 542. may sit during the recess of the legis- 12 History of the Trial of "Warren lature, for the trial of impeachments." Hastings, published by J. Debrett, Bythatof Michigan (Art. XII, Sec. 3), London, 1796. Introduction to part impeachments must be tried by the iv. For the former precedents, see senate, after the final adjournment of ibid., pp. 42-44, note ; Hallam's Con- the legislature. stitutional History, Middleton's Am. 1" Constitution, Article I, Section 5; ed., vol. ii, pp. 397-400. Belknap's Impeachment Trial, pp. 537, is See the arguments of the man- 538, 542-544 ; Johnson's Impeachment agers in Chase's Impeachment Trial Trial, pp. 26-30, 32. In New York and and Johnson's Impeachment Trial, Kansas impeachments have been tried passim; and the opinion of Senator after the adjournment of the lower Sumner in Johnson's Impeachment houses. See Impeachment Trials of Trial, vol. iii, pp. 247-281. John W. Bobinson, George S. Hillyer § 106.] EVIDENCE. 619 " In the Senate of the United States sitting as a Court of Impeach- ment." " The proceedings are conducted substantially as upon ordinary trials, in regard to the admission or rejection of testimony, the examination and cross-examination of witnesses, the rules of evidence and the other questions of law incidentally arising, al- though there is great liberality and freedom from technicality in all these respects.^^ ^he presumption of the innocence of the accused is recognized as in ordinary courts of law.^^ He has the right to be confronted with the witnesses against him, '" and has in general all rights guaranteed by the Constitution to persons charged with crime except those which require an indictment and jury trial and which regulate the place of trial.i^ § 106. Evidence upon Impeachment Trials. On the trial of Warren Hastings it was determined by the Lords that all the evidence of the Commons in support of all the articles should be taken before the respondent's witnesses were examiued.i This has been the universal rule in the United States, except when depositions were admitted. On some of the earlier English impeachments, including those of Middlesex ^ and Staf- ford,^ the evidence for and against each article was taken up sepa- rately. On the impeachment of Middlesex the evidence was taken by the depositions of witnesses who were examined secretly on written interrogatories, after the manner of the canon law, which was then followed in chancery ; and the accused was not allowed " Chief Justice Chase, in Johnson's i^ Manager Hoar in Belknap's Case, Impeachment Trial, vol. i, p. 12; and p. 82; State v. Hastings Attorney- the proceedings in that case, and General, 37 Neb., 96. See State ea; rei. Belknap's Impeachment Trial, passim, Attorney-General v. Buckley, 54 Ala- pp. 19-34. In State v. George H. bama, 599, 617-621. Hastings.Attorney-Generalandothers, i' State ex rel. Attoi-ney-General i). 37 Neb., 96 ; it was held, that the Su- Buckley, 54 Alabama 599, 617-621. preme Court acted judicially upon the ^^ State ex rel. Attorney General v. trial of impeachments and had not sue- Buckley, 54 Alabama, 599, 617-621. ceeded to any political functions that § 106.1 History of the Trial of War- might have been vested in the Senate. ren Hastings, published by J. Debrett, 15 Story on the Constitution, 5th ed., London, 1796, p. 10. § 811 ; Beport on the Lords' Journals, ^ Howell's State Trials, vol. ii, pp. Burke's Works, Little & Brown's ed., 1183-1254. vol. xi, pp. 60-122 ; Senator Sumner's ^ Howell's State Trials, vol. iii, Opinion in Johnson's Impeachment 382-1526. Trial, vol. iii, pp. 253-256. 620 IMPEACHMENTS. [CHAP. XIII. to see their testimony before his answer.* Upon an impeachment trial before the Supreme Court of Alabama, it was held that the accused had the constitutional right to be confronted with the witnesses against him in court, and that a statute was void which sought to authorize proof by depositions of which he had notice with the right of cross-examination.^ In the trials before the Senate of the United States no testimony has been admitted on either side when the witness was not ex- amined in the presence of the Senate. On Pickering's trial, depositions taken before a justice of the peace were submitted and read before the Senate on behalf of the petition of the respondent's son, but no action was taken thereupon by either the Senate or the House.^ Upon two State impeachment trials rules were made (in Kansas by the consent of both parties, '' in Michigan without objection ^) by which depositions were admitted taken outside of the State, in accordance with the State practice in ordinary trials. In two Pennsylvania impeachment trials, deposi- tions of witnesses who were too ill to attend were admitted without objection.^ In two Kansas impeachment trials testimony taken on a former impeachment trial was by consent considered as read in evidence.-^'' In Belknap's impeachment trial, an order was made, — ' ' that the managers furnish to the defendant, or his counsel, within four days, a list of the witnesses, as far as at present known to them, that they intend to call in this case ; and that, within four days there- after, the respondent furnish to the managers a list of the witnesses, as far as known, that he intends to summon." ^^ In no case before the Senate of the United States has the testi- * Howell's State Trials, vol. ii, pp. i" Hillyer's Impeachment Trial, p. 1183-1254. 350; Charles Robinson's Impeachment 5 State ex rel. Attorney-General ■b. Trial, p. 397. Buckley, 54 Alabama, pp. 599, 617-621. u Belknap's Impeachment Trial, pp. 6 Pickering's Trial, Annals of Con- 524-529. In Hubbell's Impeachment gress, A. D., 1803-1804, pp. 334, 342; Trial, the Wisconsin Senate denied a supra, § 90. motion on behalf of the respondent, ' John W. Eobinson's Impeachment that the managers furnish him a copy Trial, p. 65. of the testimony taken before the As- " Hubbell's Impeachment Trial. sembly committee on the subject. 9 Hopkinson's Impeachment Trial (Hubbell's Trial, pp. 80-81. See Ap- and Nicholson's Impeachment Trial. pendix.) § 107.] ARGUMENTS. 621 mony of the respondent been taken. It was claimed in Belknap's case by Ex-Senator Matthew H. Carpenter, who was counsel for the respondent, that the respondent and his wife had no right to testify.12 This was denied by the managers.^^ On Barnard's trial the testimony of the accused was admitted without question ; i* and in other cases he has been allowed to make a statement in his defense not under oath,i^ in accordance with the practice on im- peachments before the House of Lords.^^ In Hubbell's case, one of the managers asked the senate to draw an inference unfavorable to the respondent from his failure to testify in his own defense.^^ For this the manager was rebxiked by the respondent's counsel, but the senate took no action in the matter.i^ In Belknap's case, the counsel for both sides conceded that a journalist had the privilege of refusing to disclose the source of news which he had published.!^ On the impeachment trial, before the senate of Massachusetts, of Vinal, a justice of the peace, by the consent of the respondent the record of his conviction by the Supreme Court of the offenses charged against him was ad- mitted in evidence and held sufficient.^ On the proceedings for the removal of Sargent and Vinal, judges of the common pleas in the same State, the only evidence was a certificate of their con- viction made by the solicitor of the Commonwealth. The legis- lature held this sufficient against the protest of John Quincy Adams .^1 § 107. Arguments of Counsel. Each side opens its own evidence. At the conclusion of the testi- mony, the parties have the right to be heard by counsel upon the 12 Belknap's Impeachment Trial, pp. ^'' Manager Huston, in Hubbell's Im- 978, 995. peachment Trial, p. 1726. 15 Manager Scott Lord in Belknap's is John B. Chipman, counsel for the Impeachment Trial, p. 1039. respondent in Hubbell's Impeachment 1* Barnard's Impeachment Trial, p. Trial, pp. 1772, 1773 ; infra, Appendix. 1630. See Wilson v. V. S., 149 V. S., 60. 15 Addison's Impeachment Trial, p. i^ Belknap's Impeachment Trial, p. *101; Jackson's Impeachment Trial, 667. pp. 251-275. Hubbell's Impeachment ^ Prescott's Impeachment Trial, Trial, p. 781. See Appendix, mfra. Appendix, p. 217. w Strafford's Impeachment Trial, ^i infra, Appendix. Howell's State Trials, vol. iii, pp. 1382- 1526. 622 IMPEACHMENTS. [CHAP. Xni. whole case. In a Missouri impeaclimeiit trial, the defendants' counsel were allowed to make a motion, in the nature of a demur- rer to the evidence, for judgment whether the respondent should make further answer. The senate, after the argument of the motion, refused to allow the managers to withdraw the articles without the permission of the court. Such permission was, how- ever, subsequently granted before the decision of the motion and apparently without any action by the house which presented the impeachment ; a most irregular proceeding.^ The House of Com- mons has the right to reply on every incidental as well as on the principal question involved in the case.^ This right, although claimed on the trial of Johnson, Belknap and Barnard, has been overruled in the United States, and on incidental questions the party on the affirmative side of the question has the right to open and reply ;^ although the managers have the right to open and close the final arguments.* § 108. Decision upon Impeaclinient. There can be no conviction upon an impeachment before the Senate of the United States or any of the State senates without a concurrence of two-thirds of the members present. In this, the American differs from the English practice, where a majority of the House of Lords, provided at least twelve concur, is sufficient.^ The requirement of a vote of two-thirds for a conviction was first made in the New York Constitution of 1777,^ which in this re- spect was usually followed in the early constitutions of the other States. That constitution, as did some others, also required the vote of two-thirds of the lower house, which is not required by the § 107. 1 Lucas' Impeachment Trial, knap's Trial, pp. 64-65, 71-87 ; Bar- pp. 278, 288, 312-314. In Hardy's nard's Trial, infra. Appendix. Trial in California the presiding officer * Senate Kules for Impeachments, said (pp. 260-261): "No doubt the XXI. Hardy's Impeachment Trial, counsel for the prosecution have the p. 465. See Appendix, infra. right to withdraw any one, or the en- § 108. i Comyn's Digest, Parlia- tire list of the Articles of Impeach- ment, L. 17. ment, that they choose." See § 98 and ^ Art. XXXIII. Penn's Form of Gov- Appendix, infra. ernment In 1696 required the presence 2 Lord Melville's Impeachment of a quorum of two-thirds, a majority Trial, 29 Howell's State Trials, 762-763. of whom might convict. (Poore, Char- 3 Johnson's Trial, vol. i, p. 77; Bel- ters and Constitutions, p. 1535.) §108.] DECISION. 623 Constitution of tlie United States, where a majority of a quorum of the House of Representatives can impeach an officer. The ob- ject of the provision clearly was to interpose a barrier against re- movals for reasons purely partisan.^ At the conclusion of the evidence and after both parties have been heard, the Senate proceeds to the consideration of the case. The debates are usually secret, but each Senator may be allowed to file a written opinion concerning his vote on a final or any in- cidental question.* No senator can be challenged because he has voted for the impeachment before his election to the Senate, while a member of the lower House, or for opinions expressed elsewhere, in public, or because he has become a member of the Senate after the greater part of the testimony has been taken, or because a con- viction will make him President of the United States, or otherwise.^ A senator may be excused from voting upon such a ground at his own request, but it is not usual to grant such permission.^ The usual form of voting is as follows : — " Mr. Blount, how say you, is the respondent guilty, or not guilty of a high crime and misdemeanor as charged in the Article of Im- peachment ? " This form of voting was settled on Judge Pickering's trial, when five senators refused to vote, and retired from the Court, — " not because they believed Judge Pickering guUty of high crimes and misdemeanors, but because they did not choose to be compelled to give so solemn a vote upon a form of question which they considered an un- fair one, and calculated to preclude them from giving any distinct and explicit opinion upon the true and most important point in the case ; viz., as to the insanity of Judge Pickering, and whether the charges 8 See Story on the Constitution, Trial, pp. 20-28 ; 326-345. On Hardy's g rrrrg Trfal (pp. 458-459), 3, SBnator was al- * Johnson's Impeachment Trial, vol. lowed to take the oath after the oon- ii, p. 476 ; Belknap's Impeachment elusion of the testimony and to vote Trial, p. 1049. This practice was criti- although he had heard no part of the cised in Barnard's Impeachment Trial, proof, vol iii pp. 2033-2034. « It)id- Addison's Impeachment 6 Pickering's Impeachment Trial, Trial, pp. 20-28. But see Barnard's AnnalsotCongress, 1803-1804, p. 367; Impeachment Trial, pp. 69, 78-82, Johnson's Impeachment Trial, vol. iii, 2049-2058; Impeachment Trial of pp. 360-400 ; Addison's Impeachment John W. Eobinson, p. 345. 624 IMPEACHMENTS. [CHAP. XIH. contained in the Articles of Impeachment, if true, amounted in him to high crime and misdemeanors, or not." ' In the House of Lords the vote is on all the articles, but in the Senate of the United States and the senates of the several States, it is customary to vote on each article separately,^ and in some cases to vote separately upon each specification in the article.^ In President Johnson's case the Senate of the United States refused to order that a vote be taken separately on the specifications in any article.^" In a case where the result was not thereby changed, a senator was allowed, by unanimous consent, to change his vote on the following day.^^ After the conviction of John W. Robin- son, he moved for a new trial upon the ground that one or more senators, in pronouncing him guilty, based their decision upon an erroneous principle of law.^ No attention was paid to this motion. An interesting question was discussed on the trial of Belknap. As has been told above, more than one-third of the senators voted, upon a plea to the jurisdiction at the opening of the trial, that they had no jurisdiction of the respondent. Upon the final vote, it was contended by the managers and by a large number of the Senate that the decision of this incidental question by a majority vote was conclusive, and that all senators were bound to vote guilty if they believed the facts charged in the articles were proved, even though they doubted the jurisdiction or believed that the acts committed did not amount to an impeachable crime.^^ The argu- ments in support of this proposition were substantially as fol- lows : — The only question to determine against the defendant which requires a two-thirds vote is whether the respondent should be convicted.^* All other matters are to be decided by the same vote ' Pickering's Impeachment Trial, " Jackson's Impeacliment Trial, p. -Annals of Congress, 1803-1804, p. 366. 465; m/ro, Appendix. 8 Senate Bules for Impeachment, 12 impeachment Trial of John W. XXII. Eobinson. 9 Barnard's Impeachment Trial, is For a discussion as to whether vol. iii, pp. 2154-2176 ; Hubbell's Trial, it requires a vote of two-thirds to fix pp. 789-819. the penalty, see Barnard's Trial, vol. 1° Johnson's Impeachment Trial, iii, pp. 2184-2193. vol. ii, pp. 478^81. ii Constitution, Article I, Section 3. § 108.] DECISION. 625 that is required to decide any other parliamentary question, a ma- jority. The word conviction, as defined in the dictionaries, means a determination of guilt.^^ All other questions are preliminary to this and may be decided by a majority. A majority vote, it must be admitted, will decide all questions of evidence, no matter how vital to the success of the prosecution or defense.!^ The question of jurisdiction is no different in principle from tliis. When a sen- ator is asked to vote on the question : " Is the respondent guilty or not guilty as charged in the first," and in the succeeding, arti- cles ? his oath obliges him to vote guilty if in his opinion the evi- dence proves the offenses charged.^^ On Barnard's trial, several New York judges and senators voted against the jurisdiction as to certain articles when that question was raised; but on the final vote, considering that the jurisdiction had been settled, voted guilty of the charges which those articles contained.!^ The arguments on the other side were these : The senators are judges of both the law and the fact. No senator can be justified in voting for a conviction unless he is satisfied that the court has jurisdiction of the person of the respondent, and that the facts charged amount to an impeachable crime. In the courts of the United States every question affecting the jurisdiction over the person and the subject-matter, except questions as to the service of the process, cannot be waived, and may be raised at any time even on appeal.^^ If the question of jurisdiction should not be raised preliminarily, but reserved for determination on the final vote ; it would hardly be claimed that a senator who believed the court had no jurisdiction could conscientiously vote guilty. It cannot be tha,t his obligation may be changed or the respondent 15 Manager Scott Lord in Belknap's ger and Eapallo, Senators Foster, Trial, pp. 1026; Manager William P. Hammer, Lewis Lord, Murphy and Lynde, ibid., p. 906. O'Brien in Barnard's Trial, pp. 2122- 16 Eule VII ; Manager William P. 2129, 2144-2149. Lynde in Belknap's Trial, p. 905. See i' Ehode Island v. Massachusetts, Ex-Judge Jeremiah S. Black, counsel 12 Peters, 657, 718 ; Dred Scott ti. Sand- for respondent, ibid., p. 965. ford, 19 Howard, 393 ; and other cases " Manager George A. Jenks in Bel- cited by Ex-Senator Matthew H. Oar- knap's Trial, p. 358 ; Senator Booth, penter, respondent's counsel in Bel- ibid., p. 1079. knap's Trial, pp. 1014-1017. See Fos- " Chief-Judge Church, Judges Fol- ter's Federal Practice, § 93. 626 IMPEACHMENTS. [CHAP. XIU. prejudiced in his constitutional rights because of the time or order of raising the question. ^^ ' ' The Constitution provides that ' no person shall he convicted [on impeachment] without the concurrence of two-thirds the members pres- ent.' Concurrence means more than occasional union of minds. The word signifies running along with each other. That is, no person can be convicted without the agreement of two-thirds of the members pres- ent upon every point necessary to and included in the conviction." ""■ All but three of the senators who voted that they had no juris- diction, voted not guilty, most stating at the time of the vote that they did so for want of jurisdiction.^ That has been the usual practice in the senates of the different States.^ § 109. Imposition of Penalty upon Conviction. After the respondent has been voted guilty, the Senate proceeds to fix the punishment to which he shall be subjected. The House of Lords has unlimited power to punish upon impeachments. It may and has sentenced upon conviction, to death, exile, fine, for- feiture, imprisonment, or simply removal from oifice or disqualifi- cation from specified offices, according to the nature of the offense.^ The Constitution of the United States provides that, — ' ' Judgment in Cases of Impeachment shall not extend further than to Removal from Office, and Disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States ; but the Party con- victed shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." ^ Most State constitutions are similar in this respect. When the President, Vice-President or an officer of the United States is convicted upon impeachment, he must be removed from office according to the express language of the Constitution.^ The Senate has discretion whether to add to this penalty disquali- 2° Senator Conkling in Belknap's 1379-1400. But see Barnard's Im- Trial, pp. 909, 910. peachment Trial, pp. 2122-2129, 2144- 21 Ex-Senator Matthew H. Carpen- 2149. ter, counsel for respondent, in Bel- §109. i CJomyn's Digest, Parliament, knap's Trial, p. 1017. L. 44. 22 Belknap's Impeachment Trial, 2 Constitution, Article I, Section 3. pp. 1049-1059 ; aupra, §§ 90, 92. s Constitution, Article II, Section 4. 23 Botkin's Impeachment Trial, pp. § 109.] PENALTY. 627 fication to hold any office under the United States. In the case of Pickering, removal from office was the sole penalty imposed.* In Humphreys' case, disqualification to hold any other office of honor or trust under the United States was also imposed.^ The Senate has no power to disqualify the respondent from holding office under any State. It may be that disqualification to hold office under the United States would prevent the party accused from practicing as an attorney and counsellor at law in any of the Federal courts.^ In impeachment trials before the State senates, those convicted have been sentenced to suspension from office for a short term ; '' to removal without any disqualification,^ to removal with disquali- fication to hold the office in which the offense was committed,* to removal with disqualification to hold any judicial office for a term of three years,!" ^q removal, disqualification for thirty years, and a fine of six hundred dollars to pay the costs,!! and to removal with perpetual disqualification.^^ A discussion took place upon the trial of Humphreys' impeach- ment as to the form in wliich the penalty should be determined. It was believed by some senators that the proper method was to first vote whether the convict should be removed from office, and then whether he should also be disqualified. It was feared lest the adoption of the first question might be considered to amount to a judgment imposing a sentence which would prevent the im- position of any further penalty, and lest its rejection might be considered as a judgment of acquittal. So the division was taken upon an amendment adding disqualification to the motion for a removal.!^ It seems that although a vote of two-thirds is essen- 4 Pickering's Trial, Annals of Con- Hardy's Trial, Greenleaf s Trial, But- gress, 1803-1804, pp. 366-367. ler's Trial ; infra. Appendix. 5 Humphreys' Trial, Congressional ^ Addison's Trial, infra. Appendix. Globe, 2d Session, 37tli Congress, 1861, i" Cox' Trial, pp. 2985-2989 ; imfra, 1862, part iv, pp. 2942-2953. Appendix. 6 See Addison's Trial, pp. 152-154; " Osborne's Trial, infra. Appendix, £?a;parte Garland, 4 Wall., 333, 378. 12 Barnard's Trial, Davis' Trial, ' In one case a year. Hunt's Im- Holden's Trial, Frazier's Trial, Gold- peachment Trial ; Appendix to Pres- smith's Trial ; infra, Appendix, oott's Impeachment Trial, p. 216 ; " Humphreys' Trial, Congressional infra, Appendix. Globe, 2d Session, 37th Congress, 1861, 8 Trials of Robinson and Hillyer, 1862, part iv, pp. 2951-2,953. 628 IMPEACHMENTS. [chap. XIII. tial to a conviction, a bare majority may impose the sentence." In the Senate of the United States the secretary of that body is usually directed to enter the judgment; and a certified copy thereof is deposited by him in the office of the Secretary of State.^" § 110. Pardons to Impeacliinents. The Constitution expressly excepts cases of impeachment from those in which the President of the United States has power to grant reprieves and pardons.^ In England, after the conflict in Lord Danby's case, it was pro- vided in the Act of Settlement that the king should have no power to grant a pardon which might be pleaded in an impeach- ment, but that he might, after conviction, by a pardon relieve the convict from the punishment thereby imposed.^ " The difference is very important, for the pardon is not to be al- lowed till after judgment ; it then comes too late to clear away the con- sequences of attainder ; the blood ceases to be inheritable and cannot be completely restored but by act of Parliament ; the king may indeed 1* Barnard's Impeachment Trial, vol. lil, pp. 2184-2193. 15 Senate Eules for Impeachments, XXII. In Holden's Impeachment Trial, pp. 2558-2559, the following judgment was made by the Senate : — " The State vs. William W. Holden. "Whereas, the house of represen- tatives of the State of North Carolina did, on the 26th day of December, 1870, exhibit to the Senate articles of impeachment against William W. Holden, governor of North Carolina, and the said Senate, after a full hear- ing and impartial trial, has, by the votes of two-thirds of the members present, this day determined that the said William W. Holden is guilty as charged in the 3d, 4th, 5th, 6th, 7th and 8th of said articles ; "Now, therefore, it is adjudged by the senate of North Carolina sitting as a court of impeachment, at their chamber, in the city of Ealeigh, that the said William W. Holden be re- moved from the office of governor and be disqualified to hold any ofQce of honor, trustor profit under the State of North Carolina. " It is further ordered, that a copy of this judgment be enrolled and cer- tified by the chief justice as presiding officer, and the principal clerk of the senate, and that such certified copy be deposited in the office of the secretary of state." In Cox' Impeachment Trial, pp. 2985-2989, the judgment recited at length the articles on which the respondent had been convicted. It has been said that a court of common law upon the trial of an indictment is not bound by the rulings on an im- peachment for the same offense. State v. Town Council (K. I.), 27 Atl. Kep., 599, 602. § 110. 1 Article II, Section 2. 2 Howell's State Trials, vol. xi, pp. 725-804; 13 W. Ill, ch. 2; Hallam's Constitutional History, Widdleton's ed., vol. ii, pp. 392-396. §110.] PARDON. 629 release forfeitures and confer new titles, but cannot revive the family honom-s in their antient state of precedence." ' Moreover, as was shovra in the case of Strafford, the king vi^ould. be less likely to face the storm of public opinion after a conviction, at the end of a public trial in which the proof and the enormity of the offenses had been spread abroad, than before, when it might well be claimed that the pardon was granted to protect an inno- cent party from the expense of a defense against unjust charges. If an officer of the United States cannot resign his office with- out the consent of the power that appointed him, and the doctrines supported by the minority in Belknap's case be finally upheld, the President may indirectly, by the acceptance of a resignation, accomplish what he cannot do directly by a pardon.* The Georgia Constitution of 1798 pardoned all previous convictions on im- peachments.^ In England a judgment of conviction upon an impeachment can be reversed by an act of Parliament. Whether such a power exists in Congress remains undecided.^ 2 Woodeson's Lectures, vol. ii, p. 615. * Belknap's Impeachment Trial, sur- pra, §§ 90, 92. 6 Art. IV., Sec. 8. * See the proceedings as to the per- sons impeached hy the Good Parlia- ment (Stubbs, CJonstitutional History, 2d ed., vol. ii, p. 156), and on the bill to reverse Strafford's attainder, which failed to pass (Howell's State Trials, vol. vii, pp. 1571-1576). Attainders upon convictions before juries and on bills of attainder have been often thus reversed ; e. g. in Lord Eussell's case (Howell's State Trials, vol. ix, p. 695) ; in Strafford's case (ibid., vol. iii, p. 1525) ; Bolingbroke's case (ibid., vol. XV, p. 1004) ; and others, in Hatsell's Precedents, 3d ed., vol.ii, pp. 337-338, vol. iii, pp. 47-48, 62. Dr.Birch says, in his Life of Sir Walter Ealeigh : " Mr. Carew Raleigh mentions that on his ad- dressing himself to the Parliament to be restored in blood, King Charles the First sent to him and told him plainly. that on the obligation of 10,0002. he had promised the Earl of Bristol to secure his title to Sherburne Castle, and the estate belonging to it, against the heirs of Sir Walter Ealeigh ; that now, being King, he was bound to make good his promise, and therefore, un- less Mr. Ealeigh would quit all his right and title to Sherburne, he neither would nor could pass his Bill of re- storation. Whereupon he, Mr. Eal- eigh, being then twenty years of age, left friendless and fortuneless, was prevailed on, by the promise of a sub- sistence, to conform to the King's will." The truth of this story is con- firmed by the title of the Bill: -'An Act for Eestitution in Blood of Carew Ealeigh, son of Sir Walter Ealeigh, late attainted of High Treason; and for confirmation of certain Letters Patent made by our late Sovereign, Lord King James, to John, Earl of Bristol, by the name of John Digby, Knight." (Hatsell's Precedents, 3d ed., vol. iii, p. 62, note.) The Massa- 630 IMPEACHMENTS. [CHAP. XIU. § 111. Concluding Observations upon Impeaclinients. Jefferson, in his disappointment at the acquittal of Chase, termed impeachment the scarecrow of the Constitution.^ A bet- ter metaphor is that of Somers, who called it the sword of Goliath, which is kept in the temple and brought out only on great occa- sions.^ To a superficial observer the former term may seem ap- propriate. Yet even that homely object, which we moderns have put in the place formerly occupied by the god Priapus, has its uses. The fear of the disgrace has caused the resignation of many corrupt judges. State and Federal, who shall here be nameless. It has caused many others to observe a certain respect for public decency which, had it not existed, they would have undoubtedly thrown off. It has made at least one President, Andrew John- son, obey laws which he considered unconstitutional, but which had been passed over his veto, and in some State courts at least has caused judges to respect statutes of doubtful constitutionality which they would otherwise have disregarded.^ Now that nearly all the State constitutions permit the removal of judges by the votes of two-thirds or less of the members of a legislature, this simpler remedy is usually applied.* But no such proceeding by Congress is authorized by the Constitution, and impeachments have proved eificacious in the United States. Although there have been many acquittals where the guilt charged seems to have been flagrant; yet the Federal judiciary has thus been purged in one case of a drunkard,^ and in another of a man who was waging war against the Union while retaining the legal power to free by habeas corpus any of his allies who were arrested for treason or made prisoners of war.^ In the State senates the convictions of Addison, Davis, Barnard and Cox'' have been chusetts legislature in 1711 reversed § 111. i Jefferson's Works, 1st ed., the judgments of conviction for witch- vol. vii, p. 192. craft. The Rhode Island legislature ^ Howell's State Trials, vol. xv, p. in 1854, after his pardon, reversed the 1394 ; Grey's Debates, vol. x, p. 206. conviction of Dorr for treason, against s Supra, § 38. the protest of the judiciary of that * Supra, § 98; infra. Appendix. State. (Opinion of Judges, 3 E. I. « Pickering's case, supra, § 90. Supp., 299. See Burgess, Political Sci- « Humphreys' case, supra, § 90. enoe, vol. ii, p. 337. i Supra, § 94, infra. Appendix. §111-J CONCLUDING OBSERVATIONS. 631 well needed and salutary examples. Were the power, absent, we should have no check to executive or judicial tyranny. The necessity for its existence and for caution in its exercise is one of the strongest arguments in favor of the perpetuation of the Senate.^ 8 Woodeson says in his Lectures, vol. ii, pp 369-370 : " For the last cen- tury and a half, private persons im- peached by the Commons have either sunk under the unequal struggle with the guardians ot the public purse, or have been only preserved by large fortunes from absolute ruin." Judge Stephen says of parliament- ary impeachments : " It is hardly prob- able that so cumbrous and unsatisfac- tory a mode of preoedure will ever be resorted to again. The full establish- ment of popular government and the close superintendence and immediate control exercised over all public offi- cers whatever by parliament, make it not only entirely unlikely that the sort of crimes for which men used to be impeached should be committed, but extremely difficult to commit them." (Stephen, History of the Crim- inal Law, vol. i, p. 160.) APPENDIX TO VOLUME I. STATE IMPEACHMENT TRIALS. The preceding text contains a history of all impeachment trials before the Senate of the United States.^ All of the important English impeachments, except that of Warren Hastings, may be found in How- ell's State Trials. The early ones which are not in that collection are described by Stubbs in his Constitutional History, and a list which is nearly complete may be found in Stephen's History of the Criminal Law. 2 The impeachment trials before the senates of the different States are, however, very little known. Some of them were not re- ported except in the journals ; and the reports of most of the rest are rare and hard to find. The author has found but one library,' except his own, where any attempt to collect them has been made ; and he be- lieves that no complete collection exists at any place. Yet none of them is uninteresting ; and they abound with material of great value to the student of the manners and local history of the people of the United States, as well as to those who are interested in constitutional history and law. For this reason, an account of all the writer has been able to examine is here inserted. COLONIAL IMPEACHMENTS. The earliest colonial proceeding that bears any analogy to an impeach- ment was the suspension by the proprietors of North Carolina of Gov- ernor Seth Sothell, in a letter dated December 2d, 1689, upon charges by inhabitants of the colonial county of Albemarle which had been approved by the Assembly, who had made him abjure the colony for twelve months : — That he seized two persons coming into Albemarle from Barbadoes, pretending that they were pirates, although they produced "cockets" and clearance of their goods from the governors of Barbadoes and 1 Supra, § 90. s xhe New York State Library at 2 Vol. i, pp. 145-155. Albany. 633 634 STATE IMPEACHMENT TRIALS. [APP. Bermudas. That he kept these persons imprisoned without attempting to bring them to trial, and one of them died of ill usage. That he who died left a will naming a Pollock his executor, but SotheU would not let him prove the will nor suffer the court to attest that Pollock had offered to prove it, but took all this man' s land and converted it to his own use. That when Pollock asserted his intention to come to England to com- plain of this injustice, Sothell imprisoned him without any reason. That he withdrew for bribes accusations for felony and treason. That he unlawfully imprisoned one Eobert Cannon, besides other charges of unlawfully seizing land and cattle and other unjust actions. He was ordered to come to England, and if he did not come the pro- prietors said they would obtain a mandamus from the king, to compel him. To investigate these matters they told their emissary to send them depositions and to see that justice was done to those injured by Sothell.* The first proceeding that closely resembles an impeachment by a co- lonial assembly seems to have occurred in Massachusetts in 1706, upon the charge against William Rouse, Samuel Vetch, John Borland, and Eoger Lawson, of furnishing military supplies to the Acadians while they were at war with England and the colonies. On June 25th the house sent a message to the council, asking" that such proceedings, examinations, trials and judgments might be had and used, upon and relating to the said persons, as were agreeable to law and justice." The council determined that the proceedings should be taken at the next session by a bill of attainder. At the following session, in August of the same year, at a conference between the two houses, the form of a bill of attainder was determined. A copy of the charges was delivered to the accused, to whom John PhUlips and ,Ebenezer Coffln had been added, and they were successively arraigned and tried before both houses in joint session. A vote of the houses in joint session convicted all, and a joint committee reported on the punishments. A separate act was passed fining each. The fines varied from eleven hundred to sixty pounds. These acts were in the following year annulled by the Queen in council, upon the ground that " the crimes in the said several acts mentioned" were " in no wise cognizable before the general assembly, in regard they have no power to proceed against criminals, such pro- ceedings being left to the courts of the law there." The Queen further ordered that the fines should be repaid.^ * N. C. Colonial Beoords, vol. i, pp. Chalmers, Introduetion to the His- 359-370. tory of the Revolt of the Colonies, ■■" Palfrey, History of New England, book vii, ch. ill. 1689-1727, pp. 277-281. See also APP.] COLONIAL IMPEACHMENTS. 635 In 1711, the House of Delegates of North Carolina impeached Carey, the Deputy-Governor, for rebellion, and sent him to England for trial for treason, where the proceedings seem to have been dropped/ In 1717, the Assembly of South Carolina impeached Chief -Justice Trot on the charge " of having engrossed the whole judicial power, by acting as Judge of the King's bench, the common pleas, and the admiralty." He was found guilty by the council and removed from office. ' In the same colony, in 1727, Chief-Justice Allen was impeached by the house for denying the writ of habeas corpus to a man named Smith, who had been committed for high treason, pending a revolt. No trial seems to have ever taken place.* In 1774, the Massachusetts House of Eepresentatives impeached be- fore the council Chief-Justice Peter Oliver, for accepting a salary from the Crown out of the revenue duties, instead of depending upon the General Court for his compensation, as had been the previous law. The proceedings are thus described by John Adams with his character- istic egotism : — "The public had long been alarmed with rumors and predictions that the King, that is the ministry, would take into their own hands the pay- ment of the salaries of the judges of the supreme court. The people would not believe it ; the most thinking men dreaded it. They said : ' With an executive authority in a governor possessed of an absolute negative on all the acts of the legislature, and with judges dependent only on the Crown for salaries as well as their commissions, what protection have we? We may as well abolish all limitations and resign our lives and liberties at once to the will of a prime minister at St. James'. . . . The dispatches at length arrived, and expectation was raised to its highest pitch of exultation and triumph on one side, and of grief, terror, degradation, and despondency on the other. The legislature assembled, and the governor communicated to the two Houses His Majesty's commands. " It happened that I was invited to dine that day with Samuel Winthrop, an excellent character and a predecessor in the respectable ofHce you now hold in the supreme court. Arrived at his house in New Boston, I found it full of counselors and representatives and clergy. ... All expressed their detestation and horror of the insidious ministerial plot, but all agreed that it was irremediable. There was no means or mode of opposing or resisting it. , " Indignation and despair, too, boiled in my breast as ardently as in any of them, though as the company were so much superior to me in age 6 Chalmers, Introduction to the ' Ibid., book vii, ch. xi. History of the Revolt of the Colonies, « Ibid., book vii, oh. xi. book vii, ch. xi. 636 STATE IMPEACHMENT TRIALS. [APP. and station I had not said anything ; but Dr. Winthrop, the professor then of the council, observing my silence and perhaps my countenance, said: ' Mr. Adams, what is your opinion ? Can you think of any way of escaping this snare ? ' My answer was, ' No, sir ; I am as much at a loss as any of the company. I agree with all the gentlemen that petitions and remon- strances to King or Parliament will be ineffectual. Nothing but force will succeed, but I would try one project before I had recourse to the last reason and fitness of things.' The company cried out almost or quite together, 'What project is that? What would you do?' Answer, 'I would impeach the judges.' 'Impeach the judges! How? Where? Who can impeach them?' Answer,' The house of representatives.' ' The house of representatives ! Before whom ? Before the House of Lords in England ? ' Answer, ' No, surely ; you might as well impeach them before Lord North alone.' 'Where then?' Answer, 'Before the governor and council.' ' Is there any precedent for that ? ' Answer, Mf there is not, it is now high time that a precedent should be set.' 'The governor and council will not receive the impeachment.' Answer, 'I know that very well, but the record of it will stand upon the journals, be published in pamphlets and newspapers, and perhaps make the judges repent of their salaries and decline them ; perhaps make it too trouble- some to hold them.' ' What right had we to impeach anybody ? ' Answer, ' Our house of representatives have the same right to impeach as the House of Commons has in England, and our governor and council have the same right and duty to receive and hear impeachment as the King and House of Lords have in Parliament. If the governor and council would not do their duty, that would not be the fault of the people ; the representatives ought nevertheless do theirs.' Some of the company said that the idea was so new to them that they wished I would show them some reasons for my opinion that we had the right. I repeated to them the clause of the charter which I relied on, the constant practice in Eng- land, and the necessity of such a power and practice in every free govern- ment. " The company dispersed and I went home. Dr. Cooper and others were excellent hands to spread a rumor, and before nine o'clock half of the town and most of the members of the general court had in their heads the idea of an impeachment. The next morning early Major Hawley, of Northampton, came to my house under great concern and said he heard that I, yesterday, in a public company suggested a thought of impeaching the judges ; that report had got about and had excited some uneasiness, and he desired to know my meaning. I invited him to my house, opened the charter, and requested him to read the paragraphs that I had marked. I then produced to him that volume of Selden's works which contains his treatise on Judicature and Parliament. Other authorities in law were produced to him, and the State Trials and a profusion of impeachments with which that work abounds. Major Hawley, who was one of the best APP.] MAINE. 637 men in the province, and one of the ablest lawyers and best speakers in the legislature, was struck with surprise. He said : ' I know not what to think. This is, in a manner all new to me. I must think of it.' . . . " Major Hawley, alwaj'S conscientious, always deliberate, always cau- tious, had not slept soundly. What were his dreams about impeachment, I know not. But this I know : he drove away to Cambridge to consult Judge Trowbridge, and appealed to his conscience. The charter was called for ; Selden and the state trials were quoted, Trowbridge said to him what I had said before, that the power of impeachment was essential to a free government ; that the charter had given it to our house of represen- tatives as clearly as the constitution in the common law or immemorial usage had given it to the House of Commons in England. This was all he could say, although he lamented the occasion of it. " Major Hawley returned full in the faith ; an impeaclmient was voted; a committee was appointed to prepare articles. . . . "The articles were reported to the house, discussed, accepted, the im- peachment voted and sent up in form to the governor and council ; re- jected," that is, never tried, " of course, as everybody knew beforehand that it would be ; but it remained on the journals of the house, was printed in the newspapers, and went abroad into the world. And what were the consequences ? Chief-Justice Oliver and his superior court, your supreme judicial court, commenced their regular circuit. The chief-justice opened his court as usual. Grand jurors and petit jurors refused to take their oaths. They never could, as I believe, prevail on one juror to take the oath. I attended at the bar in two counties, and I heard grand jurors and petit jurors say to Chief-Justice Oliver to his face, ' The chief-justice of this court stands impeached by the representatives of the people of high crimes and misdemeanors and of a conspiracy against the charter privi- leges of the people ; I cannot serve as a juror or take the oath.' The cool, calm, sedate intrepidity with which these honest freeholders went through this fiery trial filled my eyes and my heart. "In one word, the royal government was from that moment laid prostrate in the dust, and has never since revived in substance, though a dark shadow of the hobgoblin haunts me at times to this day." " MAINE. In the State of Maine no impeachments have been had. The annual election of the governor and other State ofllicers has made it easier to punish their misconduct by action at the polls; while the provision for the removal of civil officers by the governor upon an 9 John Adams' Works, vol. ix, pp. 1773-1774:, pp. 86-88, 94, 113, 117, 118, 236-241. See also Hutchinson, Life of 134-135, 146, 147, 167, 182, 183, 205, Thomas Hutchinson, pp. 136-141 ; and 232-236, 241. Colonial Records, House Journal for 638 STATE IMPEACHMENT TRIALS. [APP. address by a simple majority of botli houses of the legislature ^ has been found a more efficacious means of turning out of office an ob- noxious judge. In 1856, Woodbury Davis, a justice of the supreme court, was removed by the governor of the State of Maine upon an address of both houses of the legislature. The causes assigned for the removal were : his refusal to recognize the official authority of a sheriff who had been duly appointed, commissioned and qualified ; his denial of the lawful and actual validity of the sheriff's commission, which was under the hand of the governor and the seal of the State ; his removal of the prisoners from jail by proceedings not warranted by law, and disregard of their custody by the sheriff ; his recognition as sheriff of another person who had been previously lawfully removed ; and his undertaking to issue the orders and precepts of the court to that other person for execution. The judge answered the petition for his removal, admitting that he had refused to recognize the person named in the petition as sheriff, but claiming that he did so because the latter had not been lawfully ap- pointed, and the preceding sheriff had not been lawfully removed ; and denying that the legislature had authority under the constitution of the State to determine for any other department of the government the question who was sheriff. The judge was defended by Henry W. Paine and Rufus Choate. The proceeding was partisan in its charac- ter, since the legality of the removal of the former sheriff was an open question ; and Judge Davis was reappointed upon the election of a governor of his own political faith. ^^ NEW HAMPSHIRE. In 1790, Woodbury Langdon, a judge of the Superior Court, was impeached by the New Hampshire house of representatives. The articles charged that he had willfully and corruptly in various instances misbehaved in his office, and neglected to attend to the duties thereof, by means whereof the courts had not been holden at the times and places by law established, and the administration of justice delayed, to the great injury of the good citizens of said State ; with specifications of the times when the respondent failed to attend. The State senate postponed the trial until the following year. Meanwhile, President w Art. IX, Sec. 5. Francis 0. J. Smith, on the removal 11 The only report of this proceed- of Judge Davis, pp. 1-77, which may ing outside of the journals is a pamph- be found in the New York State Li- let containing the arguments of Eu- brary. fus Choate, Henry W. Paine, and APP.] MASSACHUSETTS. 639 Washington appointed him one of the three commissioners to settle the revolutionary accounts between the United States and the in- dividual States. Langdon accepted the appointment, and addressed a letter to the president of the State, resigning his office of judge as being incompatible with that of commissioner. In his letter he stated freely the importance of the office of the judge of the highest court of the State, the inadequacy of the salary, and the encroach- ments of the legislature upon the judiciary by passing bills to annul their judgments. He also vindicated his official conduct as a judge, answered the charges made in the articles of impeachment, and requested that the president communicate the letters and papers to the two houses of the legislature. When these papers were read in the house of representatives, they voted that as the judge was under an impeachment he ought not to be permitted to resign, and that he was guilty of a contempt in writing the letter and the papers therein enclosed. A few days later, however, they ordered the managers to enter a nolle prosequi to the impeachment, which was immediately done. At the same time they passed an address to the president and council requesting them to remove the judge from the office he had resigned, which address the senate unanimously rejected. Jeremiah Smith was appointed by the house one of the managers of the impeachment, although he had voted against it. He was obliged to go to Worcester, Massachusetts, to find forms to assist him in drawing up the articles. Since that time no impeachments have been attempted in New Hampshire, where judges may be removed by the governor and council upon the address of a majority of both houses of the legislature, as has been done in five cases. '^ MASSACHUSETTS. The first impeachment trial in the State of Massachusetts was that of William Greenleaf, sheriff of Worcester County, in 1788. The arti- cles charged that the respondent " hath, illegally and unjustly, from time to time, detained, in his own hands, for his private use, public monies, when the Commonwealth had a right to, and was in great want of the same." That he " had exhibited to the treasurer of this Com- monwealth, in order to be laid before the House of Representatives, false and dishonest accounts of monies, which he, as Sheriff, aforesaid, had collected in payment of public taxes." That he " had, from to time, 12 Batohellor, New Hampshire State Plumer, p. 108; Life ot Jeremiah Papers, vol. xxi, pp. 812-815 ; vol. Smith, p. 38. xxii, pp. 749-756; Life of Governor 640 STATE IMPEACHMENT TEIALS. [APP. and for the space of more than two years together, illegally detained in his own hands, and for his own private use, certain monies belonging to the aforesaid inhabitants of the town of Petersham, for which he never accounted to them." That on a certain day " he did procure from the treasury of the Commonwealth, an execution for money, which money he had then already received on a former execution." That he "had falsely returned to the Treasurer, as unsatisfied, a certain execu- tion which he had in part collected.'' That on a day named he did " unjustly procure a warrant of distress to be served on the inhabitants of Petersham aforesaid for a large sum of money, which he then well knew they had long before paid." The respondent demurred specially to each of the articles, and joined to these demurrers a plea of not guilty. The demurrers and pleas were tried together. At the conclusion of the testimony and arguments the question was put generally to each member of the court : "Is "Wil- liam Greenleaf, sheriff of the County of Worcester, guilty of miscon- duct and maladministration in that office, charged upon him by the impeachment of the House of Representatives, or not guilty ? " He was pronounced guilty by a vote of twenty to three, and sentenced to removal from office. In 1794, N. Hunt of Watertown, a justice of the peace for the county of Middlesex, was impeached upon three charges : that he had falsely entered upon his records the appearance of two plaintiffs who did not appear, and the default of a defendant who had appeared. The respondent pleaded not guilty, but was convicted by a vote of twenty to seven, and sentenced to suspension from office for one year. The next impeachment was of John Vinal, one of the justices of the peace for the county of Suffolk in 1800. The articles charged generally that it appeared by the records of the Supreme Judicial Court, certified copies of which had been laid by the attorney-general before the house, that the respondent had been " convicted of extortions, bribery and corruption in his office, aforesaid, whereby it is manifest that the said John Vinal, Esq., a justice of the peace, as aforesaid, is guilty of gross misconduct and mal-administration in that office." The separate articles then followed, setting forth with precision specific charges of collecting an extortionate fee for taking bail, and of receiving bribes for voting to grant licenses to retail spirituous liquors. The respondent pleaded not guilty, but " consented to allow the record of the Supreme Judicial Court as conclusive evidence against him in support of the arti- cles contained in the impeachment." He was unanimously pronounced guilty and sentenced to removal from office and a perpetual disqualifi- cation. APP.] MASSACHUSETTS. 641 The next was in 1807, the impeachment of Moses Copeland, one of the justices of the peace for the county of Lincoln. The articles charged that he had brought suit and entered judgment in his own court for $12.24 damages and $5.15 costs upon a promissory note owned by him, in the name of a fictitious endorsee. That he had issued two writs returnable before himself on a certain day and hour, and defaulted the defendant before the hour named in the writs, " which default, al- though the defendant appeared in due season, he refused to take ofiE, and afterwards issued execution upon these judgments " ; and finally that he had corruptly taken a bribe of $1.50 " to bias his opinion" in an action then pending before him. The respondent pleaded specially to the first article that the suit had been brought in his court without his knowledge, by an attorney to whom he had given the note for collection, and to the other articles a general plea of not guilty. He was acquitted by a vote of twenty-five not guilty to seven guilty on the first and third articles, and a unanimous vote on the second article.^' In 1821, James Prescott, a judge of probate for the county- of Middlesex, was impeached and tried before the senate of Massachusetts. The articles charged him with extortion in the collection of exorbitant fees in excess of the amount authorized by statute. They were fifteen in all ; but he was acquitted on all but two ; the third, on which he was convicted on a vote of sixteen to nine, and the twelfth, on which the vote against him was fifteen to six. The third charged that he did willfully and corruptly demand and receive greater fees than were by law allowed, to the amount of $39.02, for issuing a warrant to appraise an estate, receiving an inventory and entering a decree granting a commission of insolvency upon the same estate. The twelfth article charged that upon the presentment of an account of the guardianship of a person non compos mentis, he over- heard a conversation between the guardian and an overseer of the poor of the town concerning the ward' s estate ; and that thereupon he offered his advice concerning the subject of the conversation, and after the overseer had refused to pay a counsel fee of $5.00 for the advice, procured the same from the guardian, under the promise that he would allow the same to him on his account, which he did by inserting it by interlineation, teUing the guardian that the overseer need know nothing about it. The articles upon which he was acquitted related principally to " These four trials are briefly reported in the appendix to Prescott's Im- peachment Trial, infra, note 14. 642 STATE IMPEACHMENT TRIALS. [APP. charges for counsel fees for advice and other services concerning estates which were administered in his office. One of the managers for the house of representatives was Lemuel Shaw, afterwards the celebrated chief- justice of Massachusetts. Among the respondent's counsel were Samuel Hoar and Daniel "Webster. The trial is an excellent illustra- tion of the manner in which Webster was accustomed to browbeat a court. The respondent was sentenced to removal from office without disqualification. " In 1826, Samuel Blagge, a justice of the peace, was impeached and tried before the Massachusetts senate. The articles charged that he had made false certificates that negroes and Indians had appeared be- fore him, and declared that they were free and resided in free States, and that depositions as to such facts had been taken before him in other cases. He pleaded not guilty to the charges, and was acquitted.'^ The following proceedings for removal have taken place before the Massachusetts legislature : In 1803, Theophilus Bradbury was re- moved from the bench of the supreme court, because he had become incapacitated by palsy. In the same year Paul D. Sargent and William Vinal, judges of the court of common pleas in Hancock County, were also removed. They had been convicted before the supreme court of the crime of willful extortion in their office. The only evidence was a certificate of their conviction from the solicitor of the Commonwealth. John Quincy Adams, who was then a member of the senate, entered on the journal his protest against this proceeding, upon the grounds : that judicial officers could only be removed for official misdemeanors ; that no judicial officer should be removed from office by the mode of an address of the two houses on account of offenses for the trial of which the constitution has expressly provided the mode of impeachment, because he considered the independence of the judi- ciary as materially affected by the mode of procedure, which in effect must make the tenure of all judicial officers dependent upon the verdict 1* Eeport of the Trial by Impeach- the office of the " Daily Advertiser," ment of James Prescott, Esq., Judge 1821 ; pp. 225. of the Probate of "Wills, &c., for the i^* A pamphlet containing the plead- County of Middlesex, for misconduct ings and the rules of trial before the and maladministration in office, before Senate, may be found in the library the Senate of Massachusetts, in the of the Bar Association of the city of year 1821, with an Appendix contain- New York. My information as to the ing an account of former impeach- result is due to the courtesy of Mr. ments in the same State. By Octavus Isaac H. Edgett, Deputy Secretary of Pickering and "William Howard Gar- the Commonwealth of Massachusetts, diner of the Suffolk Bar. Published at APP.] MASSACHUSETTS. 643 of a jury in any one county of the Commonwealth ; and that the deci- sion of the Senate ought not to have been taken without giving the ac- cused an opportunity to be heard in their own defense. '° In 1854, Edward Greely Loring, judge of probate, as a United States commissioner had incurred the hostility of the abolitionists by his ac- tion in enforcing the Fugitive Slave law in the case of Anthony Burns. An address was thereupon passed in 1855 by the legislature requesting his removal. Governor Gardner refused to remove him. Subsequently, after the election of Governor Banks, a new address for his removal was passed, and Governor Banks removed him in 1858. No grounds for the removal were stated in the address. The petition to the legislature was prosecuted by Wendell Phillips from the bar, and John Andrew took charge of the proceedings in the house. Richard H. Dana, Jr., who had been Burns' counsel, opposed the removal." In 1877, Abraham Jackson and another justice of the peace were re- moved by the governor and council upon the address of the legislature. In one case upon a conviction of perjury ; and in the other when the party was a fugitive from justice after indictment. In 1881 an application was made to the legislature for the removal of Joseph M. Day, judge of probate and insolvency for the county of Barnstable, upon the grounds that he had acted as counsel for an ex- ecutor appointed within his jurisdiction, in a suit brought against the latter in his representative capacity ; that he had charged illegal fees ; that he had made a wrongful decision in an insolvent proceeding when he had been counsel for the insolvent in another matter ; that he had acted as counsel for other parties who had cases pending in his court ; that he had been guilty of improper conduct and bearing towards parties in his court ; and that he was accused of having been intoxicated and thus incapable to do his work. His counsel claimed that he could not be removed for impeachable offenses. He resigned pending the proceedings, which then were dropped. ■'' " Diary of John Qulnoy Adams, vol. from office of Joseph M. Day, Judge i, p. 255. of Probate and Insolvency for the 1' Wendell Phillips' speech was re- County of Barnstable, before a Joint published In his Speeches and Leo- Special Committee of the Massachu- tures, 1st Series, p. 154, as well as in setts Legislature, A. D. 1881. For pamphlet form. Dana's was repub- Petitioners, George S. Boutwell, lished in a pamphlet, Boston, 1855, pp. George A. King. For Respondent 28. See C. F. Adams, Life of Dana, and Remonstrants, D. W. Gooch, T. vol. i, pp. 341-347. H. Talbot, E. W. Burdett. Boston : 18 Arguments of Counsel in the Band, Avery & Co., Printers to the Matter of Joseph E. Johnson and Commonwealth, 117 Franklin Street, others, Petitioners for the removal 1881. 644 STATE IMPEACHMENT TRIALS. [APP. EHODE ISLAND. In 1786, under the Confederation, an information of John Trevett against John Weeden for refusing to receive the State paper currency as an equivalent to silver or gold in payment for meat, was brought before the superior court of judicature of the State of Rhode Island in pursuance of an act of the General Assembly. The case was clear under the statute. The defendant's counsel, James M. Varnum, however, argued that the act was void for repugnancy to the constitution. "The court adjourned to next morning, upon opening of which, Judge Howell, in a firm, sensible, and judicious speech, assigned the reasons which induced him to be of the opinion that the information was not cognizable by the court — declared himself independent as a judge — the penal law to be repugnant," according to another authority "obnoxious,"-'^ " and un- constitutional, and therefore gave out as his opinion that the court could not take cognizance of the information ! Judge Devol was of the same opinion. Judge TUlinghast took notice of the striking repugnancy of the act — without trial by jury, according to the laws of the land — and on that ground gave his judgment the same way. Judge Hazard voted against taking cognizance. The chief-justice declared the judgment of the court without giving his own opinion."^" Rhode Island was then governed under the colonial charter and had adopted no constitu- tion. The General Assembly in the following week required the imme- diate attendance of the judges, "to render their reasons for adjudging an act of the General Assembly unconstitutional and so void." The hearing of the judges was postponed until the October session. After three of them had been heard, the house voted upon the question ' ' whether the Assembly was satisfied with the reasons given by the judges in support of theu- judgment " ; and determined it in the nega- tive. A motion was then made to dismiss the judges from their offices. They were, however, afforded a hearing, when Varnum appeared as their counsel and argued on their behalf. The Assembly then voted to take the opinion of the attorney-general and other members of the bar, ' ' whether constitutionally and agreeably to law the General Assembly can suspend, or remove from office, for a mere matter of opinion without a previous charge and statement of criminality, due process, trial and con- viction thereon." 19 American Museum, vol. v, p. 336. p. 73 ; Chandler's Criminal Trials, vol. 2° Providence Gazette, Oct. 7, 1786, ii, pp. 269-326, which contains a re- quoted by Cox, Judicial Power and print of the arguments of Varnum Unconstitutional Legislation, p. 245; taken from the pamphlet published Thayer's Constitutional Cases, vol. i, by himself at Providence in 1787. APP.J NEW YORK. 645 The attorney-general and three other lawyers concurred in the opin- ion that the judges could not be suspended or removed from office " for a mere matter of opinion without a charge of criminality." Two of them expressed the opinion that a regular impeachment was essential for that purpose. The legislature then resolved, by a very large ma- jority, ' ' that as the judges are not charged with any criminality in ren- dering the judgment upon the information, Trevett against Weeden, they are therefore discharged from any further attendance upon this Assembly on that account." The judges, whose terms were annual, were not, however, re-elected, but the obnoxious law was subsequently re- pealed.''^ NEW YORK. The first New York impeachment seems to have been that of John C. Mather, a canal commissioner, in 1853. The articles charged that he had entered into a corrupt combination with his associates so to let the work in completing the Erie Canal enlargement, the Black River and Genesee Valley Canals, and the locks of the Oswego Canal, that " a large proportion of said canal work, amounting to a large amount of money, to wit : six millions of dollars, was to be corruptly distributed among some of the members of the two political parties known as the whig and democrat parties, and the relations and personal favorites of the said John C. Mather and his associates," and that in pursuance of this conspiracy he and his associates awarded contracts for this work " without having due regard to price, the ability of the parties, and the security for the performance thereof, and did not, as was his duty, con- tract with the lowest bidder for said work," when the lowest bidder in their judgment had the ability to perform the contract and furnish sat- isfactory security. Other articles repeated this charge with specifica- tions. That he had negligently bought supplies and materials, some of 21 Chandler's Criminal Trials, vol. ii, Wherein the Eights of the People to pp. 269-350. The Case of Trevett Trial by Jury, &c., are stated and against Weeden : On Information and maintained, and the Legislative, Judi- Complaint, for refusing Paper Bills clary and Executive Powers of Gov- in Payment for Butcher's Meat in ernment examined and defined. By Market, at Par with Specie. Tried James M. Varnum, Esq., Major-Gen- before the Honorable Superior Court, eral of the State of Ehode Island, &c., in the County of Newport, September CounseUor at Law and Member of Term, 1786. Also, The Case of the Congress for said State. Providence : Judges of said Court, Before the Hon- Printed by John Carter, 1787. pp. 60. orable General Assembly, at Provi- See also the other authorities cited dence, October Session, 1786, on Cita^ supra, note 20. tion, for dismissing said Complaint. 646 STATE EMPEACHMENT TRIALS. [APP. which were not needed for the canals, at exorbitant prices, without written contracts as required by law. That he had expended money on work in excess of the sum authorized by the canal board. That he had changed a plan of work adopted by the board, thus doubling the expense of the State. That he had neglected to inspect the canals and to give notice of his visitation of the same as required by law. That he had collected $800 for mileage and alleged travelling expenses when he had not travelled those miles nor expended that sum of money. And that, although duly notified, he had failed to appear upon the hearing of claims before the Board of Canal Appraisers for canal damages. The respondent answered by a general denial. John K. Porter, who was afterwards for a short time judge of the Court of Appeals, and who terminated a brilliant professional career by his management of the prosecution of Guiteau, was associated with the managers as counsel. The celebrated James T. Brady and Eufus W. Peckham, afterwards the first judge of that name on the Court of Appeals, were among the respondent's counsel. They moved at the opening of the case to quash or strike out the first five articles, on the ground that the alleged violations of statute which had been held to be unconstitutional and consequently stated as impeachable offense. The motion was denied by the Court of Impeachment by votes of seventeen to thirteen, eighteen to thu'teen and seventeen to fourteen as to the articles separately ; more than one- third in each case being in favor of the respondent, who was finally acquitted. ^'^ In 1868, Robert C. Dorn, a canal commissioner, was impeached and tried before the New York Court of Impeachment. The articles charged that there had been a conspiracy by the contractors for repairs of the canals to buy up and obtain possession of all bids or proposals made at rates reasonable and advantageous to the State, and to interline and erase and otherwise make them so informal as to be rejected, which conspiracy had been carried into effect. That with the full knowledge of this conspiracy, the respondent had unlawfully and corruptly voted to award the contracts to the highest bidders, who were parties to said con- 22 The Trial of the Hon. John C. Atlas Steam Press : 1853 ; pp. 65, with Mather, one of the Canal Commission- appendix, pp. 7. This may be found ers of the State of New York, in the in the library of the N. Y. City Bar Court for the Trial of Impeachments, Association. It terminates with the held at the Capitol in the City of Al- adjournment of the Court on August bany, commencing "Wednesday, July 20th. The remaining proceedings are 27th, 1853. Eichard Sutton, Short reported in the Journal of the Court Hand Writer to the Court of Impeach- of Impeachment, which is in the office ments, Albany. Van Dyke, Printer— of the N. Y. Secretary of State. APP.] NEW YOEK. 647 spiracy, and to reject bids -which were lower and more advantageous to the State. That he had knowingly and corruptly rejected a bid for re- pairs of a section of the Erie Canal, on terms safe and advantageous to the State, and voted to award the work to another bidder at an ex- ceptional and excessive price. That after a contract to repair a section of the Champlain Canal had been duly awarded to the lowest legal bidder, he had moved corruptly with the intent to defraud the State for a reconsideration of the award, and used his official influence to procure the award of the same contract to another at an excessive and exorbitant price of nearly double the amount of the bid first ac- cepted. "That the said Robert C. Dorn, Canal Commissioner and member of the Board of Canal Commissioners and Contracting Board, did, at divers times during the years 1866 and 1867, wrongfully, corruptly, and unlaw- fully, and with the intention to defraud and cheat the State, let large and valuable contracts for the repairs of said canals so under his charge, and for the furnishing of materials for the repairs as aforesaid, to various and divers persons or parties, at rates and prices for the work and repairs to be performed exorbitant and disadvantageous to the State, and did unlaw- fully and corruptly let said contracts to personal favorites, with the view and intention of sharing in the profits to be realized from said contracts, and did so let and award said contracts to said parties, and did execute said contracts on the part of the State, without having advertised and given the notice required by law to be given and made prior to the letting of contracts for the repair of said canals. That by reason thereof the State was defrauded of a large sum of money, to the great wrong and in- jury of the people of the State of New York, and in contempt of their laws and authority." This article was quashed as too indefinite. That he had wrongfully and negligently allowed the canals under his charge to become out of repair and unfit for use ; had failed to examine them as his official duty required ; failed to enforce the faithful execu- tion of contracts for their management and repair; failed to protect and defend the rights and interests of the people, by a diligent and assiduous attention to the duties enjoined upon him by law and the regulations of the canal and contracting boards ; failed to contract for labor, materials and repairs on the best terms ; and otherwise neglected his official duty. That he had wrongfully and corruptly allowed private persons and personal favorites of himself to appropriate large quantities of public property, lumber, timber, logs, fence-posts, pickets and wood without any compensation to the State, and allowed men, teams, trans- portation and machinery, used and employed by the State and under 648 STATE IMPEACHMENT TRIALS. [APP. pay of the State, to be used and employed for the use and benefit of private parties. That he had wrongfully and corruptly made contracts for work, labor and materials without public notice as required by law ; and after the work and repairs had been completed and the materials furnished and delivered he had wrongfully and corruptly advertised, that the work so completed would be let pursuant to law to the lowest bidder, and thus deceived the contracting board and procured the con- tracts which he had previously made to be duly and formally awarded. That after the award of a contract to one man who was ready and willing to enter into it, he had corruptly and wrongfully awarded the same contract to another and permitted the assignment of the latter contract to a third person, at an enhanced price. The accused was defended by William A. Beach and Henry Smith. He was acquitted on all these articles by a majority vote, the largest minority against him being eight out of twenty-eight.^' The next New York impeachment was that oi; George G. Barnard, a justice of the supreme court for the County of New York in 1874. The proceedings were instituted at the instigation of the Bar Associa- tion of New York City, members of which acted as counsel for the Assembly upon the trial. He was convicted upon the following charges : He had assisted the counsel of James Fisk and Jay Gould in keep- ing the control of the Erie Eailway Company by a number of illegal ex parte orders. In one of these he had ordered the corporation by an injunction to close its books and not to transfer certain shares of stock owned or represented by the defendants, in which the plaintiff did not have or claim any legal or equitable interest, for the purpose of pre- venting the defendants from voting upon the stock at the ensuing election. In another suit he had thus enjoined these defendants and others from transferring or attempting to transfer any stock of the rail- road stamped with the name of Heath & Co. , or Raphael & Sons, and from stamping or permitting to be stamped with such stamp, or any other or similar distinctive stamp, any stock of the corporation not al- ready stamped, and from interfering with any of such stock, and from removing or attempting to remove any of such stamped stock in the custody of one of the defendants, or otherwise presented for transfer, or which might thereafter be presented for transfer for the same purpose. He had also appointed a receiver of so much of this stock as was left 23 A Journal of the Court for the Albany : Van Benthuysen and Sons' Trial of Impeachments in the Case of Steam Printing House. 1868. pp^ Hon. Robert C. Dorn, a Canal Com- 1181, with Appendix, pp. 128. missioner of the State of New York. APP.] JTEW YOEK. 649 with the corporation for transfer ; and of all similar stock that might hereafter be presented for transfer ; and authorized the receiver to take possession and control and management of the stock, and "of all moneys paid on account thereof for the stamping of the same," for the use and benefit of the Erie Railway Company and of all the stockholders beneficially interested therein. The stock comprehended within the order, of which the receiver obtained possession under it, was of the par and actual value of many millions of dollars, and the papers failed to show that the plaintiffs had any interest in it or that it did not belong to the defendants, or any other legal ground for any of these orders. Another ex parte order appointed another receiver of all the shares of stock of the defendant which had at any time been delivered by any stockholder to Heath & Raphael or to the Erie Stockholders' Protec- tion Committee, and was endorsed to Heath & Raphael, with a power of attorney on the back. This was the same stock of which the previous receiver had been appointed. The former action had previously been removed to the Circuit Court of the United States, and the Circuit Court had made, or was about to and did presently thereafter order the former receiver to deliver up the stock to the defendants. He had aided the same persons in attempts to secure the control of the Union Pacific Railroad Company, and had succeeded in compelling the removal of the principal oflSce of that railroad company out of the State of New York. He had made an ex parte order enjoining its directors from holding an election then about to be held pursuant to law until the right of the plaintiff, James Fisk, Jr., to the stock de- scribed in the complaint was determined. He had made an ex parte order appointing William M. Tweed, Jr. , receiver, amongst other things, of all the bonds of the United States, and all the bonds of the Union Pacific Railroad Company, which were in the possession or under the control of said company, or of any officer or agent thereof, or held in trust for it ; and the proceeds of all such bonds then in the possession or control of the railroad company, which bonds and proceeds were of the value of many millions of doUars. He had subsequently, on an un- verified written paper called a report, by the said Tweed as receiver, made an ex parte order authorizing and directing the receiver to open the safe of the said Union Pacific Railroad Company, either by picking the lock or cutting or blowing open the same as the receiver might think best. He was acquitted on the charge of maintaining jurisdiction of this suit after it had been removed into the Circuit Court of the United States, because the law on the point did not appear to be clearly settled at that time. 650 STATE IMPEACHMENT TRIALS. [APP. Another series of charges related to the Albany and Susquehanna Eailroad Company, in which the opposite parties claiming the control of that railroad resorted to arms and compelled the governor of the State to order out the militia and to take possession of the railroad in order to keep the peace. He had left the bedside of his mother, who was then dangerously ill at Poughkeepsie, and gone to New York at the request of Fisk, to Fisk's house, and had granted in the house of Fisk's mistress, Josephine Mansfield, an ex parte order upon insufficient grounds, appointing Fisk and Charles Courtier receivers of that railroad. In another order he had directed the issue of a writ of assistance to the sheriff of New York County to put said receivers into possession of the railroad, authorized them to employ force to resist any attempt to oust them from possession, and enjoined the sheriff of Albany County, the police commissioners of the city of Albany and the directors of the rail- road company from disturbing or interfering with the said receivers. In another, he had stayed proceedings under an injunction granted in the same litigation by another justice of the Supreme Court in Albany County, pending an application before him to set the same aside, meanwhile directing the issue of said writs of assistance, the execution of which had been enjoined by the Albany injunction. He had made a similar order in regard to another injunction. Both of these orders were granted by him ex parte, in violation of a section of the New Yoi'k Code of Procedure. In another ex parte order he had appointed a receiver of three thousand shares of the capital stock of the same rail- road which was the lawful property of the defendants, although it did not appear that the plaintiff had a right or interest in any of said shares ; and further directed the issue of a writ of assistance to the sheriff of the city and county of New York, commanding him to put the receiver in possession of them. He had granted an order for the arrest of the president, secretary, counsel and other directors and stockholders of said railroad company, directing that their bail should be $25,000, for the purpose of preventing their attendance at the election. He had granted without authority of law, an order, out of favor- itism, to the attorney and counsel for the plaintiff, enjoining the Mil- waukee and St. Paul Railway Company and its directors from building, constructing, purchasing or operating any railroad or railway other than the road or property described in mortgages referred to in the complaint, and from removing from the State any books, papers, docu- ments or property belonging to or in the possession of certain directors. The only security upon the grant of said order, was an undertaking by APP.] NEW YOKK. 651 the plaintiff in the sum of $250. It did not appear in the papers upon which the order was granted that the defendants or either of them threatened to commit, or had committed, or were about to commit any act which could produce any injury to the plaintiff, or in violation of the plaintiff' s rights, or tending to render ineffectual any judgment which might be rendered in the said action. No part of the railroad was situated in the State of New York. Tte corporation was incorporated under the laws of another State, and its railroad was more than eight hundred miles in length, of which between one hundred and two hundred miles were then in process of construction, and ran through the States of Wisconsin, Iowa and Minnesota. He had also for the same purpose and with no more authority, appointed a receiver of the corporation and of the property described in a certain mortgage and trust deed, described in said complaint. In the course of certain proceedings supplemental to execution for the purpose of compelling the application to the satisfaction of a judgment of certain moneys due from the defendant to the Pacific Mail Steamship Company, in which another judge of the same court had en- joined the debtor from payment, he had vacated the latter order ex parte, and signed the following notice : — " Supreme Court. William W. Goddard, agst. Jacob Stan wood. If the money is not paid under my order of this day, I shall imprison the parties charged with contempt, on Monday morning, at the opening of the court. George G. Baknard, February 26, 1870. J- S. C. To Pacific Mail Steamship Company." He had granted an allowance to counsel in excess of the statutory amount. He had assisted persons who desired to obtain the control of the New York Pier and Warehouse Company by granting without authority an ex parte order, before inspectors of the corporate election had been ap- pointed, which directed John Doe and Richard Roe, inspectors of election of the corporation, to receive certain proxies according to the terms thereof ; and after the inspectors had been appointed, he had directed them by name to make their report of the election forthwith, and re- turn the vote of one of the holders of said proxies at sixty thousand shares before three o'clock of the same day, appointed a receiver, and di- rected the sheriff to arrest and hold without bail under a false pretense of contempt of court, one of the inspectors of election for the purpose 652 STATE IMPEACHMENT TRIALS. [APP. of compelling the said inspector to receive and count the vote of sixty thousand shares of stock under the said proxy, which the said inspector knew ought not to be voted, and which the said judge subsequently de- cided ought not to be voted. He had repeatedly used on the bench language coarse, obscene and indecent, and ' ' justly causing those persons in his hearing, and other persons, to believe and understand that he, said George G. Barnard, in his official action as said justice, acted not with an honest intent faith- fully to discharge the duties of his said office, and to use the process of said court for the purpose of doing justice, but with the wrongful and corrupt intent to aid and benefit his friends and favored suitors and counsel." He was convicted on the following specifications under this charge : — In the month of October, 1871, when an application was made to him on the bench for the appointment of a referee, and the applicant suggested the appointment of Gratz Nathan as such referee, the re- spondent had said in substance : ' ' Gratz Nathan — Gratz Nathan ; I know no Gratz but one; that is Gratz Coleman; he is my Gratz," or, "he is my referee ' ' ; thereby alluding to a notorious fact, that ' ' said Gratz Nathan was a person usually selected as a referee by Justice Cardozo, and meaning thereby that he had a like favorite in one James H. Coleman. "When an application was made to him on the bench for the appointment of Thomas W. Clerke, a former justice of that court, referee, the respondent had said in substance " that no man need offer that person's name to him as referee, that said person had lied about him, and had been his enemy, and that he favored his friends and not his enemies." In the course of the examination before him of the vice- president of the Union Pacific Railroad Company, the witness testified in reference to a remark by the judge in the lunch-room of the Astor House, that, " I have driven one set of scoundrels out of New York, and I am going to drive out this set." The respondent from his seat on the bench admitted that he had made said remark, thereby giving those present to understand that he ' ' used the process of his court not for the purpose of doing justice between party and party, but for the purpose of prosecuting and harassing the Union Pacific Railroad Company, and the officers thereof, said company being engaged in a litigation with James Fisk, Jr." When an application was made to him on the bench " to attend an order whereby Philo T. Ruggles had been appointed referee," he said : " I shall sign no order unless I can make it to a man I can rely upon. I am not going to appoint any one, even by consent, unless it is satis- APP.] NEW YORK. 653 factory to me. I did not appoint this referee." One of the counsel in the case stated : " This gentleman was not appointed by consent." The respondent then said in effect : "I don't care, I shall not do it ; and if you don't like it, you can put it in for the 999th article of impeach- ment." He was acquitted on an article charging the receipt of bribes. His sentence was removal and perpetual disqualification from office."* In 1866, George W. Smith, county judge of Oneida County, was removed from office on charges presented to the senate. The charges on which he was removed were : That he drew for pay as attorney the necessary papers to secure exemption from sei-vice in the State militia. That he allowed his law partner to do the same and shared the fees paid his partner for such services. That he discharged a prisoner held in the county jail on the charge of grand larceny ; under an arrangement by which the prisoner was thereupon mustered into the military service of the United States, his bounty paid to the respondent's law-partner, and the bail-bond kept by the respondent instead of being filed in the county clerk's office or delivered to the district attorney as the law required. That he had been a party to a corrupt conspiracy to aid in bounty- jumping accompanied by bribery of an officer of the army, and that he had endeavored to procure the suppression of the evidence of the misconduct of that officer. ^^ In 1872, John H. McCunn, a justice of the Superior Court of the city of New York, was removed by the State senate upon charges pre- sented in a message from Governor Hoffman. The chai'g^s were : That he acted as counsel for the plaintiff in an action pending in his court ; and that in the course of this action he illegally granted an ex parte order, appointing an insolvent, without requiring security, receiver of funds to the amount of $4,000 ; vacated an order of another judge of 2* Proceedings in the Court of Im- ot the Assembly of the State of New peachment in the Matter of the Im- York, 1872. New York: John Polhe- peachment of George E. Barnard, a mus, Printer, 102 Nassau Street, 1872. Justice of the Supreme Court of the 3 volumes, pp. 1488, and a separate State of New York. Albany : Weed, volume containing Index, pp. 88. See Parsons & Company, Printers. 1874. supra, § 93, note 25. 3 volumes, pp. 2203, and Index, pp. "^ Journal of the Proceedings of the XV. See also Charges ot the Bar As- Senate in the Matter of George W. sociation of New York against Hon. Smith, Judge of Oneida County, in George H. Barnard and Hon. Albert relation to charges submitted to the Cardozo, Justices of the Supreme Senate by the Governor. Albany: Court, and Testimony thereunder Van Benthuysen & Sons, Printers, taken before the Judiciary Committee 1866 ; pp. 580. 654 STATE IMPEACHMENT TRIALS. [APP. the same court which enjoined a sale, and granted other orders the re- sult of which was to deprive the parties of property to an amount in excess of $200,000. Thathe conspired with his brother-in-law to enable the latter to make unlawful profits out of the property of parties to an action pending before him, and in pursuance of such conspiracy ap- pointed his brother-in-law receiver of certain co-partnership property, although no application for a receivership had been made, without re- quiring proper security, although he knew the receiver " to be a man without pecuniary responsibility and unfit for such trust and dependent upon him for support," and that he illegally and without jurisdiction ordered the receiver to pay fees out of the funds in his custody, to the counsel for plaintiff, and others, which the receiver did in pursuance of said orders. That he illegally appointed his own agent and brother-in- law to collect the money due from boarders at a boarding-house which was maintained by his tenant, a party to the action. That in a case in which none of the parties wished a receivership, he appointed, without security, an improper person receiver of a fund of $12,000 owned by defendants, without any motion for the order ; and that when the action had been discontinued and the receivership vacated by the consent of all the parties, he had summarily appointed another receiver of the same money in the same action and directed the payment of the same to the latter for the purpose of enabling these receivers and their counsel to secure fees out of the defendant's property. That he illegally ap- pointed another receiver of the sum of $16,000 in gold coin of the United States ; ordered the defendants to an action to pay that amount to the receiver, and by threats of illegal imprisonment compelled payment of the same. That he illegally,and corruptly granted an order of arrest, and held the defendant in bail in the sum of $40,000, although the papers showed no cause for the arrest. And that in another case he illegally appointed a referee and a receiver of his own motion for the purpose of enabling them to obtain illegal profits from a fund which was the subject of litigation before him.^'^ 28 Proceedings in the Senate on the Association of New York against Hon. investigation of the charges preferred John H. McCunn, a Justice of the against John H. McCunn, a Justice of Supreme Court of the City of New the Superior Court of the City of New York, and Testimony thereunder York, in pursuance of a message from taken before the Judiciary Committee his excellency the Governor, trans- of the Assembly of the State of New mitting the charges and recommend- York, 1872. New York : John Polhe- ing his removal. Albany : "Weed, mus. Printer, 102 Nassau Street, 1872 ; Parsons and Company, Printers, 1874 ; pp. 256. pp. 617. See also Charges of the Bar APP.] NEW YORK. 655 In 1872, Governor Hoffman presented to the New York senate, charges against Horace G. Prindle, county judge and surrogate of Chenango County, and proceedings were taken and a hearing had with a view to his removal. The charges were : the corrupt and unlawful col- lection of fees unauthorized by law, a conspiracy with the clerk of the surrogate's office, by which the clerk collected fees unauthorized by law, and the surrogate kept for himself the salary paid by the county for the clerk's services ; the appointment of the same clerk as guardian ad litem and payment by him as compensation for his services as such, when the respondent knew the clerk was collecting unlawful fees as previously charged ; the refusal to perform the duties of his office by drawing peti- tions and papers for the proof of wills and for the final settlement of accounts ; acting as attorney for the executor of an estate upon which he had issued letters testamentary, and corruptly extorting from him ex- cessive compensation for his services ; taking compensation for using his influence to induce an executor to resign his trust in order that another might be appointed administrator of the estate ; taking unlaw- ful compensation for his services as county judge ; neglect of his duties as county judge ; refusing to produce papers relating to his office as surrogate before the board of supervisors, when subpoenaed by them to do so ; granting excessive compensation to counsel in cases before him as surrogate and especially to his clerk when acting as counsel; permitting his clerk to practice before him, and extorting from parties excessive fees for the services of said clerk ; neglecting to keep a book of fees, as required by law ; refusing to furnish the board of supervisors with an itemized account of his fees ; furnishing the board with a fraud- ulent account of his fees which was not itemized, and which omitted fees that he had collected ; fraudulently persuading the executor of an estate, in settlement before him, to sell him United States bonds at less than their market value ; extorting excessive and illegal fees in several instances specified ; permitting his clerk to collect excessive fees in sev- eral instances specified ; appointing his clerk guardian ad litem in a case in which the clerk was previously employed as attorney for a party with conflicting interest ; corruptly adjudicating that a majority of the tax-payers of a town who represented the majority of the taxable prop- erty had assented to the bonding of the town in aid of a railroad; taking a counsel fee for services in a proceeding which he knew was to be brought before him as county judge; accepting employment as counsel in suits for and against executors, administrators, guardians and minors in several actions when as county judge and surrogate he had the jurisdiction over the accounts of such parties. The charges were 656 STATE IMPEACHMENT TRIALS. [APP. fifty-four in all. The senate voted that the charges that he had ac- cepted employment as attorney for an executor in a suit in the Supreme Cour.t where he had jurisdiction of an estate and collected an exces- sive fee ; that he had refused to produce books before the Board of Supervisors when requested ; that he had refused to keep a fee-book as required by law ; that he had refused to furnish the Board of Supervis- ors with an itemized account of his fees ; that the unitemized account which he furnished the Supervisors omitted fees which he had collected ; and that he had taken counsel-fees for drawing papers for use upon ap- plication before him as county judge, had been proved. The senate, however, refused to remove him, by a vote of seventeen to seven.'" In 1872 and 1873, charges against George M. Curtis, judge of the Marine Court of the city of New York, were heard before the New York senate. The charges were : that he was a member of a firm which practiced law in his own court, had shared the fees received by it for trying cases before him, had appointed one of the firm referee and shared the referee's fees ; that he had willfully, corruptly and unlawfully granted a new trial ; that he had used grossly improper conduct and scandalous and indecent language on the bench, tending to bring the administration of justice in his court into contempt, with specifications of such language, which was charged to have been in one case so vul- gar that his associates in consequence thereof adjourned the General Term which they were holding with him ; and that his conduct ' ' upon the bench of the said Marine Court, while acting as justice thereof, has been of such a character as to degrade the judicial office in the esteem, to impair the respect and confidence, of suitors, of the bar, and of the people generally, in the impartiality, purity and trustworthiness of the court." The senate voted that the charges were not proven upon the principal charges by a majority nearly the same as that in Prindle's case.^^ In 1877, Governor Robinson presented to the senate of New York 27 Proceedings in the Senate on 28 Proceedings in the Senate on the the investigation of the charges pre- Investigation of the Charges preferred ferred against Horace G-. Prindle, against George M. Curtis, a Justice County Judge and Surrogate of Che- of the Marine Court of the city of New nango County. In pursuance of a York, in pursuance of a Message from message from his excellency the his Excellency the Governor, trans- Governor, transmitting the charges mitting the Charges and recommend- and recommending his removal. Al- ing his Removal. Albany : Weed, Par- bany .• Weed, Parsons and Company, sons &. Company, Printers. 1874. pp. Printers, 1874. 2 volumes, pp. 1319, 748. besides Index, pp. 16. APP.] NEW JERSEY. 657 charges against De Witt C. Ellis, superintendent of the banking depart- ment, of negligence in the discharge of his duties, by failing to take measures to close certain banks after he had notice of their insolvency, and in other cases. The senate refused to remove him after a trial, by a vote of 10 in his favor and 21 against him.'''' In 1878, Governor Robinson presented to the senate of the same State charges against John F. Smyth, superintendent of the insurance department. The charges were: the extortion from insurance com- panies of exorbitant fees of attorneys and appraisers for the paid examination of their assets made under his supervision. The senate acquitted him by a vote of 19 in his favor to 12 against him.™ NEW JEKSEY. In 1830, Henry Miller, a justice of the peace, was impeached and tried before the legislative council of New Jersey. The articles charged : the trial of two cases in which the respondent was personally interested, the prosecution and collection for his own benefit before another justice of the peace of a note which had been placed in his hands for prosecu- tion and collection before himself for the benefit of the true owner thereof ; an attempt to intimidate a defendant from appealing by telling him that if he intended to appeal from the judgment about to be rendered the respondent would render judgment for $25 or at least $20, but if he would not appeal the judgment would be for $12.50 only; and a failure to keep an accurate docket of the proceedings in his court and also altering entries that had been made in the docket upon the first article which charged the trial, of a case in which he was personally interested. The respondent was convicted upon a single article and upon the other charges was acquitted. He was sentenced to dismissal from his office.'^ 2* Testimony taken before the Sen- Parsons and Company, Printers, 1875. ate Committee on Banks, and the Sen- 3 volumes : vol. i, pp. 688, Index, pp. ate of the State of New York, in refer- xvii; vol. ii, pp. 689-1400, Index, pp. ence to charges preferred by William xvil ; vol. iii, pp. 1401-2048, Index pp. J. Best, Receiver, etc., Edward Mai- xvii. Ion and John Mack against De Witt ^ The proceedings are reported in C. Ellis, Superintendent of the Bank- a public document, containing the ing Department of the State of New testimony and arguments, of 526 York. Also Journal of the Senate, pages, accompanying the journal of Printed under the direction of the the Senate in 37 pages. Clerk of the Senate, pursuant to reso- ^^ Minutes of the Proceedings of lutlon of the Senate, passed at Sara- the Legislative Council of the State of toga, Aug. 17, 1877. Albany : Weed, New Jersey, sitting as a High Court 658 STATE IMPEACHMENT TBLALS. [APP. In 1837, Daniel C. Cozens, a justice of the peace, was impeached and tried before the legislative council of the same State. The articles charged : the issue of two summons, the entry of judgment, and the issue of execution without the knowledge or consent of the plaintiff named therein, although the execution was afterwards withdrawn; a subsequent issue of a summons against the same defendant without the knowledge or consent of the person named as plaintiff ; the statement, when the defendant applied to know who the plaintiff was, that the re- spondent was not bound to know ; on the trial day when the defendant appeared, a delay of an hour, and when, after the expiration of that time, the defendant asked if the respondent were ready for trial, the reply : " No, damn you, I'll give you a nonsuit." The respondent was acquitted by a majority vote in his favor. ^^ In 1886, Patrick Laverty, principal keeper of the state prison, was impeached by the assembly and tried and convicted by the Senate of Jersey and punished by removal and disqualification from all ofHces. The articles charged him with adultery and fornication with female con- victs in his custody. The respondent answered denying the charges and was defended by counsel. '' On March loth, 1895, Patrick W. Connelly, a justice of the peace, was convicted and sentenced to removal from office by the senate of New Jersey, upon impeachment for assaulting a lawyer who had called upon him upon official business in his office, and continuing the assault upon the street outside. The articles of impeachment were presented on March 4th. They also charged as an offense the falsification and alteration by the respondent of the docket of a judgment after it had been rendered, so as to make it a judgment of non-suit instead of a judgment for the defendant. The respondent was acquitted on the latter charge. The trial began on March 14th.** Z' PENNSYLVANIA. In Pennsylvania in 1780, under the Confederation, Francis Hopkin- son, the State judge of admiralty, was impeached by the house of as- of Impeachment, at the City of Tren- ton, in the year of our Lord one ton. In the year of our Lord, one thousand eight hundred and thirty- thousand eight hundred and thirty, seven, and of the United States the and of the Independence of the United sixty-first. 1837. States the fifty-fourth. 1830. ss Senate Journal of New Jersey, 32 Minutes of the Proceedings of in 1886, pp. 905-959. the Legislative Council of the State of ^4 Journal of the 51st Senate of the New Jersey, sitting as a High Court State of New Jersey, Trenton, New of Impeachment, at the City of Tren- Jersey, 1895, pp. 336-340, 961-1068. APP.] PENNSYLVANIA. 669 sembly and tried before the president and council. The articles charged him with a proposal to appoint a man agent for unrepresented shares of prizes belonging to absent seamen and others upon condition that the person appointed should make him a present of a suit of clothes ; and the threat to appoint others in his stead if this condition was not complied with ; with issuing a writ for the sale of a cargo of the prize, which falsely declared that it had been testified to him, that the cargo was in great danger of waste, spoil and damage, when there had been in truth no such testimony ; and with continually charging and receiving excessive fees. The answer admitted that the judge had said to the marshal, who had applied to him for the appointment of Blair McClenachan, "that a thought had just occurred which he would in confidence mention, re- questing his opinion thereupon, and declaring he would be bound by it. And then observed to the marshal that he was about to throw into Mr. McClenachan's hands, many thousand pounds, by giving him the agency. . . That Mr. McClenachan had wrought him much trouble in his office, had never shown civility of any kind, and even neglected the common compliment of his hat, when they met. That he heard much of Mr. McClenachan's politeness and generosity to other persons and submitted it, whether it would not be as proper, if Mr. McClenachan should make him a present of a suit of cloaths, as well as to other per- sons who had not been as beneficent to him or done him such sub- stantial favours, and finally observed that this was a matter of delicacy and doubt. To which the marshal replied, that in common justice Mr. McClenachan ought to make some acknowledgment for so considerable a favour — that there was no impropriety or indelicacy in the judge's receiving such a present, should it be offered ; the appointment to an agency not being a judicial act, but a voluntary favour of the Court ; no more conversation of any importance passed at that time on the sub- ject. Some days after, the judge asked the marshal whether he had ever mentioned anything of this affair to Mr. McClenachan, who replied that he had not had favorable opportunity, and these were the only times in which the matter was touched upon ; excepting that some short time after the judge, thinking on further consideration that the thing was improper, declared his better sentiments to the marshal, and abso- lutely forbid him proceeding in it. But told the marshal he should ex- pect Mr. McClenachan would at least ask the Judge for the agency, a ceremony he never dispensed with — as he thought the favour worth asking for, if worth possessing ; and declared he would never make the favours of his office so cheap as to force them on persons who would not condescend to request them." The answer further said that 660 STATE IMPEACHMENT TRIALS. [APP. McClenachan neglected to ask for the agency in question, and in the meanwhile other reasons occurred to the judge for not appointing him as agent, and he consequently appointed other persons ; and that the bills of costs which he had charged were in accordance with the custom of his office. James Wilson, afterwards justice of the Supreme Court of the United States, and who played an important part in the framing of the Constitu- tion, appeared as attorney for the defendant together with Jared D. Inger- soU. The council dismissed the charges for lack of proof as regards the solicitation of the bribe, and because they were of the opinion that the judge acted in good faith as regards the other matters, but con- cluded their decision with an opinion expressing their disapproval of the acceptance of presents by public officers.'^ In 1793, the house of representatives of that State impeached and the senate tried John Nicholson, the comptroller-general. The articles charged him with improper recognition of the new loan certificates, which had been issued in pursuance of a previous act of the legislature and had been subsequently annulled by a later act; with presenting them and declaring them " to be subscribable, as debts due and owing by the State of Pennsylvania, to a certain loan, opened and proposed, on the part of the United States, to the creditors of the respective States " ; with certifying that they were redeemable ; and in his reports concerning the same so confounding them with other valid loans as to make it impossible for the governor to know that they were there in- cluded ; with purchasing such certificates hiibself and then presenting them in subscription to said loans ; and in certain cases, after he had allowed such new loan certificates to be exchanged for certificates of debts by the United States, with appropriating them to his own use and again subscribing them to the loan in his own name and for his own benefit. The answer was a general plea of not guilty. The defense rested principally on a claim that the law authorized the action of the respondent in recognizing these new loan certificates ; that he had as much right as any other citizen to purchase and deal in them ; and that there was no proof of the last charge. The respondent was acquitted by a majority vote in his favor on all the articles but two, and upon 35 The Pennsylvania State Trials, of the Commonwealth of Pennsylvania, containing the Impeachment Trial and Vol. i, Viresques Acquirit Eundo Virg. Acquittal of Francis Hopkinson and Philadelphia. Printed by Francis Bai- John Nicholson, Esquires, the former ley at Yorick'sHead.No. 116 High St., being Judge of the Court of Admiralty For Edmond Hogan, M.DOC.XCIV. and the latter the Comptroller-G-eneral pp. 776. ^^^•^ PENNSyLVANIA. 661 those two by a vote of less than two- thirds against him. Pending the discussion by the senate, after the testimony and arguments had been closed, a resolution for his removal by the governor passed the house. Immediately upon the announcement to the respondent of his acquittal, he resigned his office. The senate upon the same day passed a resolu- tion concurring with that of the house and addressed to the governor for his removal. The governor notified them that the respondent had superseded the removal by resigning his office, and his resignation had been abeady accepted. *° In 1788, the Supreme Court of Pennsylvania punished Eleazer Oswald by a fine of ten pounds and a month's imprisonment on account of his publication in the Independent G-azette of an article attacking the conduct of the plaintiff in a suit instituted against him and insinu- ating prejudice on the part of the court. A few weeks after his dis- charge, Oswald presented a memorial to the general assembly of the State calling upon the house to determine "whether the judges did not infringe the Constitution in direct terms in the sentence they had pro- nounced, and whether they had not made themselves proper objects of impeachment." Lewis, one of the leaders of the house, defended the judges in an elaborate argument, the points of which are still preserved. The house finally resolved, "That this house, having, in a committee of the whole, gone into a full examination of the charges exhibited by Eleazer Oswald, of arbitrary and oppressive proceedings in the justices of the Supreme Court against the said Eleazer Oswald, are of opinion, that the charges are unsupported by the testimony adduced, and, con- sequently, that there is no just cause for impeaching the said justices." '' Meanwhile the arrogance and aristocratic tendencies of the Federalist party swept it from power in the State of Pennsylvania as well as throughout the greater part of the Union. The Democrats, who had pre- viously been excluded from judicial as well as other offices in the North, attempted in many States as well as in the United States to remove Fed- eral judges in order to substitute good Democrats in their place. Amongst these was Alexander Addison, president of the Court of Com- mon Pleas in the Fifth District of Pennsylvania. He was a Presbyte- rian preacher, who had abandoned the pulpit for the bench, and was accustomed in his charges to grand juries to take every opportunity to denounce the Democrats and all who sympathized with the French revo- lution. He had even gone so far as to instruct a grand jury that a 36 Ibid. 37 Eespublica v. Oswald, 1 Dallas, 319, 329, and notes. 662 STATE lilPEACHMBNT TRIALS. [APP. liberty pole was a nuisance. One of his associates was John Lucas, a Frenchman, of mild manners and little education. On one occasion when Lucas charged the jury after the conclusion of a charge by Addi- son, Addison instructed them "that the address delivered to them by the said John Lucas, otherwise John B. Lucas, had nothing to do with the question before them, and that they ought not to pay any attention to it." Upon another occasion, Addison refused to allow Lucas to charge the grand jury after his own charge which contained a bitter de- nunciation of the French, and the Democratic party. Lucas acquiesced at the time, but consulted his friends ; amongst others, Judge Bracken- ridge, and prepared to resist upon the next occasion. He then prepared a mild and temperate address to the grand jury in which he said amongst other things : — ' ' For my part, I cannot expose myself so much as to forget that I stand here as a judge, and not as a speculatist or historian ; that this present time is at the disposal of the laws, and not at that of my fancy or imagination. God forbid, above all, that I should single out any set of men among fellow-citizens, and insinuate that they are a ramifi- cation of such German and French iUuminees and jacobins, and that the mean course of the last general election throughout the United States evinces that this ramification is growing powerful and influential." ' ' Had I ever denounced parties to a jury, I could not help thinking that I should have perverted the use of judicial power to a wrong and dangerous end. It is with deep regret that I have now spoke upon the topic of parties ; it is not from choice, but from necessity ; not to act, but to counteract. May this circumstance be the only one in my life wherein I feel myself under the obligation of addressing to a jury, upon so delicate and perplexing a subject." . Addison interrupted Lucas, telling him that the proceeding was ex- traordinary and not usual, and that he must desist. Lucas said it was his right and would proceed. The presiding justice then adjourned the court until the afternoon. When the court reopened in the after- noon. Judge Lucas again began to charge the jury, when Addison com- manded him to be silent, and informed him that the court would, and knew how to enforce obedience. A motion was thereupon made by the attorney-general before the Supreme Court for leave to file an information against Judge Addison on account of his misbehavior in this case. The court dismissed the proceeding on the ground that no crime was charged. The chief -justice said : ' ' "We will not hear the right questioned ; there can be no doubt of the right. The right of every judge is equal as to expressing him- -^PP>] PENNSYLVANIA. 663 self to a jury grand or petit ; whether supporting or dissenting. Nay, if he dissents in opinion, he is guilty of a breach of trust, if he does not express it. The affidavit does not state malice. It would seem to be a mistake of right. Unless a crime is stated the court cannot take cog- nizance. There may be another remedy. It does not lie with us to say what that is. The proceeding was arbitrary, unbecoming, unhand- some, ungentlemanly, unmannerly and improper ; but there not being an imputation of wilful misbehaviour and malice, it is not indictable, or the subject of an information." Addison was thereupon in the following year, 1802, impeached, and in 1803, convicted and removed from office upon articles charging these offenses. The prosecution was conducted by Alexander J. Dallas and M'Kean as counsel for the house of representatives. Addison defended himself in person with great vigor and ability.^' Emboldened by their success, the Democratic party then attacked the whole supreme court of the State, with the exception of Judge Brackenridge, who was a Democrat. A dispute had arisen in 1802, between Thomas Passmore and Andrew Bayard, concerning the liability of Bayard and other underwriters upon a policy of marine insurance. The arbitrators to whom the matter had been referred decided in favor of Passmore, but Bayard was advised by counsel that the decision was illegal for irregularity in the proceedings, and consequently instituted proceedings in the Supreme Court to set aside the judgment entered upon the award. Thereupon Passmore abused him and his firm in a public coffee-house as ' ' quibbling under- writers " who had basely kept from the subscriber the money included in the award; stigmatized their conduct "as a mean, dirty action," publicly declared Bayard to be "a liar, a rascal, and a coward," and offered ' ' 2^ per cent to any good person or persons to insure the solvency of Pettit and Bayard, for four months from this date." The Supreme Court held this to be a contempt, and committed Pass- more in consequence to jail for thirty days, with a flue of fifty dollars. The articles of impeachment, which were voted in 1804, charged that the commitment was wrongful and illegal, inasmuch as the alleged contempt was not committed in the presence of the court. ^ The Trial of Alexander Addison, the Commonwealth of Pennsylvania. Esq., President of the CJourts of Com- Taken in Shorthand by Thomas Lloyd, mon Pleas, in the Circuit Consisting Second edition, with additions. Lan- of the Counties of Westmoreland, Fay- caster, printed by George Helmbold, ette, Washington, and Alleghany. On Jr., for Lloyd and Helmbold, Jun., an Impeachment by the House of Kep- 1803. (Copyright secured.) resentatives. Before the Senate of 664 STATE IMPEACHMENT TRIALS. [APP. The bar of the State of Pennsylvania stood by the justices of the court, and so did Judge Brackenridge, the only Democratic member. The assembly was consequently obliged to retain Eodney of Delaware to conduct the prosecution. He was assisted by a layman, Boileau, one of the managers of the house of representatives, who argued against the justices in a speech that displayed great wit and fancy. Jared In- gersoU and Alexander J. Dallas, two leaders of the Pennsylvania bar, ap- peared for the impeached justices, at the trial in 1805. The respondents were acquitted by a vote of thirteen of guilty and eleven not guilty ; less than two-thirds being consequently against them. An act was subsequently passed which has been copied in most States and also by Congress, making it unlawful to punish for contempt an act not com- mitted in the presence of a court or tending to obstruct the execution of its decrees.'^ In 1816, Walter Franklin, the president, and Jacob Hibshman and Thomas Clark, associate judges of the Court of Common Pleas of Lan- caster County, were impeached and tried before the senate of Penn- sylvania. A single article was presented. This charged that the respondents had improperly refused to compel certain attorneys to pay to their clients moneys which they had collected and unjustly retained. The judges were all acquitted.*" The same Judge Franklin, who was then president judge of the second judicial district of Pennsylvania, was again impeached, tried and acquitted in 1825. The articles charged : a delay of the administra- tion of justice in many cases to an extent commensurate with a denial thereof, "viz. The decision of that description of causes which are to be decided by the court without the intervention of a jury, and which in his courts are included under the denomination of causes on the argument list, is by him habitually deferred unnecessarily, under pre- tence of holding under advisement for a time, totally inconsistent with 59 Report of the Trial and Acquittal ceedings of the Senate of Pennsylvania, of Edward Shippen, Esq., Chief-Justice, sitting as the High Court of Impeach- and Jasper Yeates and Thomas Smith, ment, on the trial of an article of aceu- Esquires, Assistant Justices of the Su- sation and impeachment preferred by preme Court of Pennsylvania. On an the House of Representatives, against Impeachment, before the Senate of the "Walter Franklin, President, and Jacob Commonwealth, January, 1805. By Hibshman and Thomas Clark, Associ- William Hamilton, Editor of the Lan- ate Judges of the Court of Common caster Journal. Lancaster: printed Pleas of Lancaster County, pp. 12. by the Reporter, pp.491. With an Appendix to Senate Journal for 1816, Appendix, pp. 96. Harrisburg : printed by Christian «» (Appendix.) Journal of the Pro- Gleim, 1816. APP.] PENNSYLVANIA. 665 a due administration of justice, although, in many instances, the cases have not required any extraordinary exertion of intellect' or of legal knowledge, insomuch, that conformably to his practice, but little facility is afforded to a party in obtaining a prompt decision of a cause, in con- sequence of its being plain and not involving any intricacy of testimony or of law ; all being equally involved in the general habit of procrasti- nation ; " similar action upon the return of writs of certiorari to review the proceedings of justices of the peace in violation of an act of the general assembly ; a fraudulent tampering with the records of the court so as to enter a decision different from that previously made by him ; leaving the court during a criminal trial so that a verdict of guilty was returned and recorded in his absence, and when a motion for a new trial was made on this ground, in consideration of the withdrawal of such motion, the sentence of the prisoner to a nominal penalty. The respond- ent was acquitted by a majority vote of not guilty upon all the articles." In the same year, 1825, Robert Porter,- president judge of the third judicial district, was also impeached and acquitted. The articles charged a refusal to furnish his reasons for a report which he had made as ref- eree, and a dismissal of exceptions taken to such report for the reasons assigned by the party in whose favor the report was made ; the public insult of three inn-keepers in open court, by charging them with keeping disorderly houses and allowing gambling in their inns; unlawful at- tempts, one of which was successful, to procure the suppression and compounding of a felony ; improperly attempting by intimidation to persuade a jury to bring in a verdict contrary to that which they pro- posed to render ; the falsification of a record and a biU. of exceptions after the case had been removed to a court of review on writ of error ; a refusal to comply with a request to reduce his opinions to writing in compliance with the statute in several cases ; unlawfully reducing an assessment for road-taxes ; insulting, threatening and intimidating one of his associate judges on the bench in open court when the judge hesi- tated to concur in a decision which he rendered ; similar indecent conduct towards the same judge in several other cases, and in one case thus preventing him from addressing a jury. The acquittal was in some cases unanimous, in the rest by a large majority vote of not guilty.'"' *i Journal of the Court of Impeach- sylvania. Harrisburg : printed by ment, for the trial of Walter Franklin, Mowry & Cameron, 1825. Esquire, President Judge of the second *^ Journal of the Court of Impeaeh- judiclal district of Pennsylvania, for ment for the trial of Eobert Porter, Misdemeanors in office, before the Esquire, President Judge of the Third Senate of the Commonwealth of Penn- Judicial District of Pepnsylvania, for 666 STATE IMPEACHMENT TRIALS. [APP. In 1826, Seth Chapman, president judge of the eighth judicial dis- trict of Pennsylvania, was impeached. The articles charged an illegal arrest without any verified complaint ; a violation of a statute by the issue of a writ of certiorari to set aside a judgment of a justice of the peace more than twenty days after it was rendered ; a refusal to file an opinion and his charge to the jury in a case which the unsuccess- ful party desired to review by writ of error ; and the exercise of undue partiality and favoritism by his rulings on the admission of evidence and his charge to the jury in two cases. He was acquitted by a unani- mous vote on two of the charges and by a large majority in favor of the respondent on the remainder.*'' The senate of Pennsylvania has also addressed the governor for the removal of Edward Rowan, high sheriff of Philadelphia, and Judge John M. Kirkpatrick of Pittsburg — the latter in 1885, both for physical and mental incapacity. On October 13th, 1891, Governor Pattison convened the Pennsylva- nia senate on executive business to consider charges against the State treasurer, Henry K. Boyer, and auditor-general Thomas McCamant, of wasting the State funds by permitting John Bardsley, the city treas- urer of Philadelphia, in consideration of bribes paid them by him, to retain in his hands State taxes collected by him, which he embezzled to an amount in excess of a million dollars ; and in the case of the auditor- general, of approving bills for advertising a list of fictitious names of alleged delinquent tax-payers. Philadelphia city oflficers were also af- fected by the latter charge. The counsel for all the oflflcers objected to the jurisdiction of the senate upon the grounds that the governor had no power to institute charges, that the proceedings upon such charges were not "executive business," and consequently could not be consid- ered at an extraordinary session of the senate, and that no officer could be removed for an impeachable offense without a previous conviction upon an impeachment or indictment. By a party vote of twenty-eight yeas to nineteen nays the following resolutions were adopted : — " Whereas, the Senate of Pennsylvania having been convened in extra- ordinary session, for executive business, on October 13th, A. D. 1891, His Misdemeanors in Office, before the Esquire, President Judge of the Eighth Senate of the Commonwealth of Penn- Judicial District of Pennsylvania, for sylvania. Harrisburg: printed hy Cam- Misdemeanors in Office, before the eron & Krause, 1825. Senate of the Commonwealth of Penn- *3 Journal of the Court of Impeach- sylvania. Harrisburg : printed by Cam- ment for the trial of Seth Chapman, eron & Krause, 1826. ^PP-] PENNSYLVANIA. 667 Excellency the Governor did thereupon transmit to this body his message, wherein it appears that the business for which it was convened as aforesaid , was the investigation of certain charges of official misconduct, fully set forth in said message, against Henry K. Boyer, State Treasurer, Thomas McCamant, auditor-general ; and against certain magistrates of the city of Philadelphia, with a view to addressing the Governor asking for the re- moval of said officers ; And whereas, each of said accused officers did appear and make answer denying the jurisdiction of the Senate to investi- gate any of said charges, and to address the Governor as aforesaid for or by reason of anything in said proclamation and message contained, and also denying each and every of said charges ; And whereas, this body, having postponed the consideration of the question of jurisdiction in the premises, did proceed to make a full and complete investigation of said charges against said Henry K. Boyer, State Treasurer, being assisted throughout its said investigations by the Attorney-General of the Com- monwealth ; And whereas, The Senate has now heard full argument upon said question of jurisdiction and has fully considered the sanie ; therefore, Besolved, That as the said charges preferred by the Governor in manner aforesaid against said officers, are charges of misdemeanor in office, for which said officers could be proceeded against, both by impeachment and by indictment, and if convicted thereof, in either of said ways, could be removed ; the Senate has no jurisdiction, under Section 4 of Article VI of the Constitution in this proceeding, to inquire into, hear and determine said charges of official misconduct, and to address the Governor asking for the removal of said officers by reason thereof, and thereby to deprive said officers of the right to trial by jury, guaranteed to them under Article I, or to a trial in regular proceedings by impeachment in accordance with Sec- tions 1, 2, and 3, of Article VI of the Constitution." " Whereas, the Senate has already decided in the case of Henry K. Boyer State Treasurer, that it has no jurisdiction under the Constitution, in this proceeding, to inquire into, hear and determine the charges of official mis- conduct preferred against him, and to address the Governor asking for his removal from said office of State Treasurer, for or on account of anything in the proclamation or message of the Governor contained ; And whereas, The charges against all the other officers named in said message are also charges of official misconduct, and said ruling of the Senate on the ques- tion of jurisdiction in the said case of the said Henry K. Boyer applies with'equal force and effect to the cases of all the other officers named in said message ; And whereas it having been decided by the senate in manner aforesaid that it is without jurisdiction in the premises, no good end would be accomplished by further protracting this session ; therefore, Besolved, That when the Senate adjourns to-day it shall adjourn sine die." ^* " Journal of the Senate of the Com- risburg on the 13th Day of October, monwealth of Pennsylvania for the 1891. Harrisburg : Edwin V. Meyers, Extraordinary Session Begun at Har- State Printer. 1891. pp. 734. 668 STATE IMPEACHMENT TEIALS. ['APP. WEST VIBGINIA. In West Virginia, in 1868, Judge William L. Hindman of the eighth judicial circuit was removed from office by the legislature for admitting to the bar Samuel A. Miller and Samuel Price, former officers under the Confederate government, without requiring from them the test-oath prescribed by the State law of February 14th, 1866,*° which the State Court of Appeals had held to be constitutional,*" but which was similar to a Federal statute which the Supreme Court of the United States had held to be unconstitutional as an ex post facto law."" The respondent was ill and on that account requested a postponement of the hearing till the summer session. His request was refused. The hearing proceeded before the senate in his absence and without any defense by him. The facts charged were proved and he was removed from his State office for his obedience to the Constitution of the United States.*' In 1875 and 1876, John S. Burdett, the treasurer, and Edward A. Bennett, the auditor, were impeached and tried before the senate of the same State. The articles against Burdett charged : in various forms, a corrupt agreement with a bank by which, in consideration of money paid him and his son, he kept an average deposit of $40,000 of the State funds there upon which the State should have received interest; a similar agreement with another bank by which he kept an average deposit of 18000 there in return for a loan of 12500 made to his son, and renewed as long as the deposit was maintained ; a similar agreement with a third bank ; a failure to keep accounts and make semi-annual reports of the moneys received and disbursed by him, showing the amount of money on deposit in each designated depositary, the rate and amount of interest received thereon, and the amount and character of the security given by each depositary ; concealment from the board of public works, of which he was a member, of his knowledge that they could collect a greater rate of interest on deposits than was demanded by them ; the retention *5 West Virginia Laws of 1866, ch. Virginia for 1868, in the New York XXX, p. 19. State Library. Appleton's Annual *6 Ex parte Hunter, 2 W. Va., 122, Eneyclopeedia for 1868, pp. 763-764, A. D. 1867 ; ^a; parte Quarrier, 2 W.Va., erroneously describes this as an im- 569, A. D. 1866 ; of. Ex parte Quarrier, peachment. Subsequent to, if not in 4 W. Va., 210, A. D. 1870; Ex parte consequence of this proceeding, the Stratton, 1 W. Va., 305, A. D. 1866; West Virginia Court of Appeals refused Ex parte Faulkner, W. Va., 269, A. D. to follow the decision of the Supreme ^^^^- Court of the United States. {Ex parte " Expa/rte Garland, 4 Wall., 333. Quarrier, 4 W. Va., 210, A.D. 1870.) *8 See the House Journal of West APP.] NORTH CAROLINA. 669 and collection of gratuities from the depositaries for such concealment ; the so negligent and careless conduct of the business of his office that his son, who was employed therein, was able to make corrupt arrange- ments with certain State depositaries whereby the patronage, favors and official influence of the respondent were made and became a source of private and personal revenue and profit to his son. The respondent was convicted upon two articles which charged him with making a proposition to a bank through its president to secure to it a certain average amount of State funds upon condition that it would allow and pay him for his own personal use, interest of one or two per cent per annum upon an average amount which he kept on deposit ; and an executed conspiracy with his son under which he kept an average deposit of State funds to the amount of $40,000 in another bank under an agreement by'which the bank paid him and his son three per cent per annum upon the amount thus deposited. The penalty imposed was removal from office and disqualification from holding that office during the remainder of his official term.*' Edward A. Bennett, the auditor, was charged with a failure to keep an account of moneys received and disbursed by him, neglect and re- fusal to make a semi-annual report thereof, and the receipt of money from insurance companies for which he did not report or account to the State ; the embezzlement of the money thus collected ; the deposit of State funds in a bank in consideration of a payment to him for such deposit ; the extortion of illegal fees from foreign insurance companies transacting business in the State ; the collection of interest due the State and the retention of the same to his own use for several months ; the corrupt solicitation of a banli-president to pay him a commission for a deposit of State funds, and a successful corrupt combination with the treasurer to extort $1000 from a bank in consideration of the promised use of the power and influence which they claimed to possess over the deposit of State funds to cause and secure an average deposit of $40,000 in said bank for the year 1872. The respondent was acquitted.^" NOKTH CAKOLINA. The Fourteenth Amendment and the Reconstruction Acts deprived for a long time nearly all the tax-payers of the South from participation *' Proceedings of the Senate sitting ^° Proceedings ot the Senate sitting for the trial of the impeachment of for the trial of the impeachment of John S. Burdett, Treasurer of the Edward A. Bennett, Auditor ot the State of West Virginia. Wheeling: State of West Virginia. WheeUng: John W. Gentry, printer, 1875 ; pp. John W. Gentiy, Printer, 1875 ; pp. 84. 101. 670 STATE IMPEACHMENT TRIALS. [APP. in the government of their respective States. They were consequently subjected to the rule of the ignorant and illiterate blacks, who were usually led by adventurers from the North known as carpet baggers. The result was frequent pillage of the public treasury and robbery of the tax-payers under the forms of law." To counteract this, and to in- timidate the negroes from exercising their political rights, a secret or- ganization known as The White Brotherhood or the Ku-klux Klan was formed in many of the Southern States. The members of this, who were divided into different camps, paraded through the villages at night disguised in white garments and masks for the purpose of striking terror into the hearts of the blacks. Many of their members, either with or without the authority of the organization, committed crimes in similar disguise. Blacks and whites were dragged from their houses at night and whipped; others were hung; others were ordered to leave and driven out of the neighborhood through fear of death. When com- plaints were made to the public authorities, in many instances they were dismissed by the committing magistrates. In others, grand juries filled with members of the Klan, refused to find indictments, and prosecuting attorneys failed to push the proceedings. In North Carolina, a law was passed making the act of going masked, disguised or painted a felony. ^^ Notwithstanding this, in the counties of Alamance and Caswell, of that State, a number of whippings and murders by bands of men armed and disguised took place, and the public authorities failed to find any indictments in consequence thereof. The governor of North Carolina, William W. Holden, under an act of the legislature, proclaimed those counties to be in a state of insurrection, and sent troops of militia to enforce order in the counties. The officer in command' of those troops. Colonel George W. Kirk, arrested and imprisoned many civilians, and tortured some of them in order to obtain evidence as to the perpetrators of these murders. The civil courts in those counties were still open. An application for a writ of habeas corpus was made to the chief -justice of the State by some of these prisoners. Colonel Kirk, acting under the orders of the governor, refused to obey the writs. The governor justified him in this course. Chief -Justice Pearson, who during the Civil War had taken a bold stand by the frequent issue of this writ against the Confederate authorities, then wrote the governor, enclosing copies of these writs, together with affidavits setting out that Colonel Kirk refused to make return thereto, and said that he had made the arrests at the gov- ernor's orders ; and asked for information whether Colonel Kirk acted under the orders of Holden when making the arrests. The governor 61 Supra, § 38. 62 Act of April 12, 1869. APP.J NOKTH CAROLINA. 671 replied, stating that the arrests and detention were made by his order, and that " I am satisfied that the public interest requires that these mil- itary prisoners shall not be delivered up to the civil power. I devoutly hope that the time may be short when a restoration of peace and order may release Alamance County from the presence of military force and the enforcement of military law. When that time shall arrive I shall promptly restore the civil power." The chief-justice held that the writ of habeas corpus could only be suspended by the legislature, which had not authorized such suspension. He refused to commit the colonel for contempt of court in the use of insolent language upon his refusal to obey the writ. He denied a motion for the issue of a precept directing the sheriff of the county to execute the writ, saying in his opinion : — " The petitioner is entitled to this writ ; the only question is, to whom shall it be directed. The motion is that it should be directed to tlie sheriff of some county. I have considered the matter fully, and have come to the conclusion not to direct it to a sheriff. The act gives a dis- cretion. In the present condition of things, the counties of Alamance and Caswell declared to be in n, state of insurrection and occupied by military forces, and the public mind feverishly excited ; it is highly probable, nay, in my opinion, certain, that a writ in the hands of a sheriff (with authority to call out the power of the county) , by which he is com- manded with force, if necessary, to take the petitioner out of the hands of the military authorities, will plunge the whole state into civil war. If the sheriff demands the petitioner of Col. Kirk, with his present orders, he will refuse, and then comes war. The country has had war enough. But it was said by the counsel of the petitioner ' if in the asser- tion of civil liberty, war comes, let it come. The blood will not be on your hands or on ours ; it will be on all who disregard the sacred writ of habeas corpus. Let justice be done if the heavens fall.' It would be to act with the impetuosity of youth and not with the calmness of age, to listen to such counsels. ' Let justice be done if the heavens fall,' is a beautiful figure of speech, quoted by every one of the five learned counsel. Justice must be done, or the power of the judiciary be exhausted, but I would forfeit all claims to prudence tempered with firmness, should I, without absolute necessity, add fuel to the flame and plunge the country into civil war, provided my duty can be fully dis- charged without that awful consequence. Wisdom dictates if justice can be done 'let heaven stand.' Unless the governor revokes his orders, Col. Kirk will resist ; that appears from the affidavit of service. "The second branch of the motion, that the power of the county be called out if necessary, to aid in taking the petitioner by force out of the hands of Kirk, is as difficult of solution as the first. The power of 672 STATE IMPEACHMENT TEIALS. [APP. the county or ^ posse comitatus,' means Ihe men of the county in which the writ is to be executed ; in this instance Caswell, and that county is declared to be in a state of insurrection. Shall insurgents be called out by the person who is to execute the writ to join in conflict with the mili- tary forces of the state ? It is said a sufldcient force will volunteer from other counties ; they may belong to the association, or be persons who sympathize with it. But the '■posse comitatus' must come from the county where the writ is to be executed ; it would be illegal to take men from other counties. This is settled law ; shall illegal means be resorted to in order to execute a writ ? Again ; every able bodied man in the state belongs to the militia. The governor is, by the constitution, ' Commander-in-Chief of the militia of the State,' art. 13, sec. 8. So the power of the county is composed of men who are under the com- mand of the governor ; shall these men be required to violate with force the orders of their commander-in-chief, and do battle with his other forces that are already in the field ? In short the whole physical power of the state is by the constitution under the control of the gover- nor ; the judiciary has only a moral power j by the theory of the Consti- tution there can be no conflict between these two branches of the government. The writ will be directed to the marshal of the Supreme Court with instructions to exhibit it, and a copy of this opinion, to his excellency, the governor. If he orders the petitioner to be delivered to the marshal, well ; if not, following the example of Chief-Justice Taney, in Merriman's Case (Annual Cyclopsedia for the year 1861, page 555), I have discharged my duty ; the power of the judiciary is exhausted, and the responsibility mxist rest on the executive." ''' G-overnor Holden replied as follows : — " To the Honorable E. M. Pearson, Chief -Justice of the Supreme Court of North Carolina : " Sir : — I have had the honor to receive, by the hands of the Marshal of the Supreme Court, a copy of your opinion in the matter of A. G. Moore ; and the Marshal has informed me of the writ in his hands for the body of said Moore, now in the custody of my subordinate officer Col. George W. Kirk. "I have declared the counties of Alamance and Caswell in a state of insurrection and have taken military possession of them — this your Honor admits I have the power to do 'under the constitution and laws,' and not only this, but ' to do all things necessary to suppress the insurrec- tion,' including the power to ' arrest all suspected persons ' in the above 63 Ex parte Moore, 64 N. C, 802. conduct by his associates, 65 N. C, See the personal explanation of the .349 ; and see also The Green Bag, vol. Ohiel-Justice and the approval of his iv, pp. 536-537. APP.] KOETH CAEOLINA. 673 mentioned counties. Your Honor has thought proper also to declare that the citizens of the counties of Alamance and Caswell are insurgents, as the result of the constitutional and lawful action of 'the Executive, and that, therefore, you will not issue the writ of habeas corpus for the production of the body of Moore to any of the men of the said counties, and the posse comitatus must come from the county where the writ is to be executed, and that any other means to enforce the writ would be illegal. I have official and reliable information that in the counties above named during the last twelve months, not less than one hundred persons ' in the peace of God and the State,' have been taken from their homes and scourged, mainly, if not entirely, on account of their political opinions ; that eight murders have been committed, including that of a State senator, on the same account ; that another State senator has been compelled from fear for his life to make his escape to a distant State. I have reason to believe that the governments of the said counties have been mainly, if not entirely in the hands of the men who belong to the Ku-klux Klan, whose members have perpetrated the atrocities referred to ; and that these county governments have not merely omitted to ferret out and bring to justice those of this Klan, who have thus violated the law, but that they have actually shielded them from arrest and punishment. The State judicial power in the said counties, though in the hands of energetic, learned and upright men, has not been able to bring criminals to justice ; indeed it is my opinion, based on facts that have come to my knowledge, that the life of the judge whose duty it is to ride the circuit to which the said counties belong, has not been safe, on account of the hatred entertained towards him by the Klan referred to, because of his wish and purpose to bring said criminals to justice. For, be it known to your Honor, that there is a wide spread and formidable secret organization in this State, partly political and partly social in its objects ; that this organization is known, first, as ' The Consti- tutional Union Guard'; secondly, as ' The White Brotherhood'; thirdly, as ' The Invisible Empire ' — that the members of this organization are united by oaths which ignore or repudiate the ordinary oaths or obligations that rest upon all other citizens to respect the laws and to uphold the government ; that these oaths inculcate hatred between the two races that inhabit this State ; that the members of this Klan are irreconcilably hostile to the great principles of political and civil equality on which the govern- ment of this State has been reconstructed ; that these Klans meet in secret, in disguise, with arms, in uniform of a certain kind intended to conceal their persons and their horses, and to terrify those whom they assault, or among whom they move ; that they hold their camps in secret places, and decree judgment against their peaceable fellow-citizens, from mere intimidation to scourging, mutilations and murder, and that certain persons of the Klan are deputed to execute these judgments ; that when the members of this Klan are arrested for violations of law, it is most difficult to obtain bills of indictment against them, and still more difficult 674 STATE IMPEACHMENT TRIALS. [APP. to convict them ; first, because some of the members, or their sympathiz- ers, are almost always on the grand and petit juries, and secondly, because witnesses who are members or sympathizers unblushingly comnait perjury to screen their confederates and associates in crime ; that this Klan thus constituted, and having in view the objects referred to, is very powerful in at least twenty-five counties of the State, and has had absolute control, for the last twelve months, of the counties of Alamance and Caswell. " Under these circumstances I would have been recreant to duty and faithless to my oath, if I had not exercised the power in the said counties which your honor has been pleased to say I have exercised constitution- ally and lawfully; especially as since October, 1868, I have repeatedly, by proclamation and by letters, invoked public opinion to repress these evils, and warn criminals and offenders against the law of the State that must in the end overtake them if under the cloak of the Klan referred to, they should persist in their course. I beg to assure your honor that no one subscribes more thoroughly than I do to the great principles of habeas corpus and trial by jury. Except in extreme cases in which, beyond all question, ' the safety of the State is the supreme law,' these privileges of habeas, corpus and trial by jury should be maintained. I have declared that, in my judgment, your Honor and all the other civil and judicial authorities are unable at this time to deal with the insurgents. The civil and the military are alike constitutional powers ; the civil to protect life and property when it can, the military only when the civil has failed. As the chief executive I seek to execute, not to subvert, the judicial power. Your honor has done your duty, and in perfect harmony with you I seek to do mine. It is not I, nor the military power, that has supplanted the civil authority; that has been done by the insurrection in the counties referred to. T do not see how I can restore the civil authority until I ' suppress the insurrection,' which your honor declares I have the power to do; and I do not see how I can surrender the insurgents to the civil authority until that authority is restored. It would be a mockery in me to declare that the civil authority was unable to protect the citizens against the insurgents and then turn the insurgents over to the civil authority. My oath to sup- port the constitution makes it imperative on me to ' suppress the insurrec- tion,' and restore the civil power in the counties referred to, and this I must do. In doing this I renew to your honor expressions of my profound respect for the civil authority, and my earnest wish that this authority may soon be restored to every county and neighborhood in the State. I have the honor to be, with great respect, your obedient servant, W. W. HOLDEN, Governor." On July 27th the counsel for the petitioners moved : " 1. For an at- tachment, or rule to show cause, against the governor for not making a sufficient return to the writ of habeas corpus ; 2. If that be not proper, then for a like attachment or rule against George W. Kirk ; 3. That the -A-^I*-] NORTH CAROLISTA. 675 marshal of the Supreme Court be directed to proceed in the execution of the writ directed to him, to bring the body of the prisoner before him." The chief-justice denied all three motions.'* The prisoners thereupon applied to Judge Brooks, of the District Court of the United States, who granted the writ. The governor directed Col- onel Kirk to refuse to obey the writ, and telegraphed to President Grant stating this, and that it was his purpose to detain the prisoners, unless the army of the United States, under the orders of the President, should act in aid of the process of the Court of the United States. The secre- tary of war. General Belknap, answered, forwarding an opinion from Attorney-General Ackerman, advising " that the State authorities yield to the United States judiciary." Judge Brooks entered an order dis- charging the petitioners. Pending the proceedings before the Federal judge and after he had received the letter from the secretary of war, the governor ordered Colonel Kirk to obey the writs of habeas corpus issued by the chief -justice of North Carolina. When the return was filed, the counsel for the petitioners filed a statement in which, " deeming themselves without remedy from the judiciary of the State, and having obtained writs of habeas corpus from Hon. G. W. Brooks, judge of the District Court of the United States for the district of North Carolina, returnable before him at chambers, in Salisbury, this day, as counsel for the said prisoners," they requested leave to withdraw their petitions and abandon further proceedings under the State writs. The chief- jus- tice allowed the prisoners to withdraw their applications. The State attorney-general, anticipating the course that would be taken on the part of the prisoners, had applied for and obtained a bench warrant against them. The chief-justice granted this, and directed that they be held, provided the State was able to prove proper cause against them, expressing the opinion, which was probably correct, that Judge Brooks had no jurisdiction in the matter." In order to prevent the governor from obtaining funds to prosecute the new civil war, an injunction was granted by the Superior Court of the county of Iredell, at the suit of a tax-payer, forbidding the State treasurer from paying him any sums of money for that purpose, and for- bidding the paymaster from spending for that purpose any money which he had received from the treasurer, and was then in his hands. The in- ^ Ex parte Moore, 64 N. C. , 802, 815 ; the times : "We think it proper to add Ex parte Kerr, 64 N.C., 816. that General Hunt, commanding the 55 State V. Wiley, 56 N. C, 821; XJ. S. troops in this State, was invited State v. Turpley, 54 N. C, 826, 829. by us to take a seat on the bench and The opinion in the latter case con- heard the whole proceedings." eluded with a sentence significant of 676 STATE IMPEACHMENT TRIALS. [APP. junctions were served upon the governor, treasurer, and paymaster. In order to circumvent the irijunction, the governor removed the paymas- ter, and appointed in his place his own private secretary, who collected the money from the treasurer and paid the troops. Governor Holden was impeached by the house of representatives in December, 1870. His trial before the senate took place in 1871. The articles charged the respondent with misconduct in proclaiming the counties of Alamance and Caswell in insurrection, and with occupy- ing the same by military force. The respondent was acquitted as to these articles, since the vote of guilty lacked two or three votes of the constitutional two- thirds. He was convicted upon the remaining arti- cles, charging him with unlawful arrests ^n a county which he had not proclaimed to be in insurrection ; with unlawful arrests and imprison- ments in the proclaimed counties ; with refusal to obey the writs of ha- beas corpus ; with unlawful conduct in sending into the proclaimed coun- ties troops, some of whom were brought from another State, and con- sisted "of the most reckless, desperate ruffians and lawless characters," " under the chief command of a desperado from the State of Tennes- see by the name of George W. Kirk " ; with unlawful acts committed by Kirk under his authority ; with unlawful payments of sums of money for that purpose ; and with his acts in circumvention and in violation of the injunction as above described. The sentence imposed was removal from office and disqualification to hold any office of honor, trust or profit un- der the State." The trial is interesting from the evidence which it contains concern- ing the rules and operations of the Ku-klux Klan. The proceedings, over which Chief-Justice Pearson presided were dignified and conducted with apparent impartiality. The only exception in this respect is a cheap and vulgar opinion by one of the senators. The main acts for which Holden was convicted were similar to those of President Lincoln at the opening of the Civil War. In the same State, on March 27th, 1871, the house of representa- tives impeached Judge Edmund "W". Jones, of the superior court of the second judicial district, for drunkenness in public places. On March 31st, Governor Caldwell informed the house that the respondent had "tendered his resignation, but that "this resignation would not be ac- cepted until the articles of impeachment were disposed of." The house 66 Trial of William W. Holden, Gov- meanors." Three volumes, numbered errtor of North Carolina, before the consecutively, aggregate pp. 2564 : vol. Senate of North CaroUna, on "Im- i, 1-1037; vol. ii. pp. 1039-2269; vol. peachment by the House of Eepresen- lii, pp. 2271-2564. Two Appendixes, tatives for High Crimes and Misde- No . 1, pp. 1-108 ; No. 2, pp. 1-38. APP.] GEORGIA. 677 thereupon resolved that the articles of impeachment be withdrawn, and that the managers so inform the senate and request their return. The senate ordered that the house " may discontinue the further prosecu- tion of the impeachment," and adjourned the court of impeachment without a day.^' GEOKGIA. In 1791, Judge Henry Osborne of the Superior Court of Camden County, was impeached by the assembly and convicted by the senate of the State of Georgia upon six articles, which charged the falsification of returns upon an election to Congress in favor of General ' ' Mad An- thony " Wayne, whose competitor. General James Jackson, was seated by the House of Eepresentatives. He was sentenced to removal, dis- qualification for thirty years, and a fine of six hundred dollars to defray the expenses of the impeachment.^* Apparently for his sole benefit, the following clause was inserted in the Georgia constitution of 1798 : " Convictions on impeachments which have heretofore taken place are hereby released, and persons lying under convictions, restored to citi- zenship." ^' In 1825, John Loving, Samuel Jackson, and Fleming F. Adrian, commissioners of fraction sales, were impeached and tried before the Georgia senate. The articles charged : the retention and keeping of moneys collected by them as cash payments for sales of the fractional parts of surveys ; the withholding of a large number of grants which had been furnished them by the State so that they might execute com- plete titles to the purchasers of said fractional surveys ; the interlinea- tion and mutilation of a bond executed by a purchaser so as to increase the amount for which he was bound ; and, generally that by the pro- ceeding and conduct set forth in the foregoing articles, contrary to the high and important trust confided to them as commissioners aforesaid, and the sacred oath by them respectively taken, they had for the sake of lucre and gain and their own personal aggrandizement, been dis- gracefully instrumental in establishing a precedent subversive of the good faith which ought to be found in the actings and doings of all persons to whom the great concerns of the State and the interest of the good citizens thereof might thereafter be confided. John Loving was acquitted, the vote upon several of the articles being 6' Appleton's Annual Encyolopesdia Miscellany, vol. ill, p. 12. For his for 1871, p. 561. See aiso legislative information concerning it the author ioumals. is indebted to the courtesy of A. L. 68 This case is only reported in the Alexander, Esq., of the Savannah bar. legislative journals. See also Georgia '» Article IV, Sec. 8. 678 STATE IMPEACHMENT TBIALS. [APP. a majority of less than two-thirds against him. Thereupon at the re- quest of the house of representatives the managers asked leave of the court to enter a nolle prosequi on the articles of impeachment against the other respondents, which was granted. "^ In the same State, in 1879, Washington L. Goldsmith, the comp- troller-general, and John W. Renfroe, the State treasurer, were impeached and tried before the senate. The articles against the comptroller-gen- eral charged : the collection of illegal fees as costs upon writs of fieri facias issued by him for taxes ou wild land ; the illegal payment of the proceeds of tax-sales of wild land to various persons without the sanc- tion and warrant of the governor as was required by law ; the illegal delegation to the sheriffs of the power and duty to pass upon the evi- dence of title to unreturned wild land sold by them for taxes when the owners elected to receive the balance of the proceeds of the sale ; the failure to pay to the treasurer sums of money received by him for taxes and costs ; making erroneous, false and fraudulent returns and reports concerning the money collected by him for taxes on wild lands and insurance taxes ; retaining money collected as insurance taxes and fees which belonged to the State ; procuring and permitting to be altered and falsified the record in his office of published lists of wild lands un- returned ; keeping in his office a clerk who he knew had made a wrong- ful and fraudulent entry in such book ; appropriating moneys belonging to the State to his own use ; the offer of a bribe of two hundred and fifty dollars and a suit of clothes to members of a joint committee of the legislature which had been appointed to investigate his office ; employing a lobbyist to corrupt them ; and finally that he had for the sake of lucre and gain and his own personal aggrandizement, been disgracefully in- strumental in establishing a precedent subversive of the good faith which ought to be found in the actings and doings of all persons to whom the great concerns of the State and the good citizens thereof might thereafter be confided. The respondent answered at length; and included in his answer demurrers to several of the articles as not constituting impeachable offenses . The demurrer to the article which charged that the respondent had made false and fraudulent returns of the moneys belonging to the State in his possession as the proceeds of the collection of taxes on wild 60 Minutes of the High Court of by the House of Eepresentatives, and Impeachment of the State of Georgia, charged with certain high crimes and for the trial of John Loving, Samuel misdemeanors against the State Jaclison, and Fleming F. Adrian, com- Milledgeville : printed by Camals; & missionersoffraction sales, impeached Bagland. 1825. pp.127. ^^P-J FLORIDA. 679 lands was sustained, apparently on the ground that the respondent had a legal right to the money which he retained and did not report. Such demurrers as were filed to the other articles were overruled, in nearly every case unanimously. The senate permitted evidence of offenses charged in the articles which were committed during a term of the same office immediately preceding that then held by the respondent. The respondent was con- victed of the articles which charged tlie illegal collection of costs on the issue of writs of j^eri/acias, the illegal collection of insurance taxes and fees ; making false reports concerning public money collected by him in which he understated the amount of insurance taxes collected ; appropriating to his own use, money collected for insurance taxes and fees as aforesaid ; and also on the final article. He was sentenced to removal and perpetual disqualification from office. °' The State treasurer, John W. Renfroe, was impeached, tried and acquitted by a minority vote of more than one-third in his favor during the same year. The articles charged that he had corruptly and illegally received from banks commissions in return for the deposit with them of State funds ; that he had made an arrangement with the sureties who signed his official bond that the funds should be deposited in certain banks, who paid a commission for such deposit, which was divided between the treasurer and the sureties ; that he had extorted illegal fees from a rail- road company for affixing his signature to coupons upon its bonds ; that he had corruptly proposed to the president of a bank that he would deposit State funds in such bank in consideration of an appointment to a position in the bank of a person whom he named ; and finally that he had for the sake of lucre and gain and his personal aggrandizement, been disgracefully instrumental in establishing a precedent subversive of the good faith which ought to be found in the actings and doings of all persons to whom the great concerns of the State, and of the good people thereof , might thereafter be confided.*' FLOEIDA. In Florida, on November 6th, 1868, the house of representatives im- peached the governor, Harrison Reed. The foundations of the impeach- 61 Journal of the Senate of the State "^ Journal of the Senate of the State of Georgia at the session of the Gen- of Georgia, 1878. Atlanta, Ga. : Jas. eral Assembly, commenced at Atlanta, P. Harrison, State Printer. 1879. Ap- 6a., Nov. 6, 1878. Atlanta, Ga. : Jas. pendix, pp. 799-848. P. Harrison, State Printer. 1879. Ap- pendix, pp. 683-798. 680 STATE IMPEACHMENT TEIAIS. [APP. ment, presented to the house by a senator, who it was claimed was disqualified to hold his seat, were as follows : — "1. He has been guilty of falsehood, and lying, while transacting business with members of the Legislature and other oiBcers of the State. "2. I charge him with incompetency, inasmuch as he has filled com- missions to officers in blank, and other irresponsible persons have issued them. "3. He has issued a proclamation declaring many seats of the Legis- lature vacant, before the members duly elected and returned had re- signed or their legal term of service expired. " 4. He has been guilty of embezzlement, having taken from the State Treasury securities and money, and sold such securities, and then failed to return a portion or all of the proceeds of the sale to the Treasury. " 5. He has been guilty of corruption and bribery, having bartered and sold prominent offices in the State to sundry persons for money to him in hand paid, and nominated such persons to the Senate for confirmation." On the same day a committee presented the impeachment at the bar of the State senate in the presence of eight senators ; twenty-four being the entire number of the senate when full, but several elected being dis- qualified by the acceptance of inconsistent offices, and vacancies existing also through resignations, so that eight was a majority of the number of senators in oflice. By the State constitution, °^ on the impeachment of the governor, he was suspended from office till the end of the trial. That same evening the lieutenant-governor, William H. Gleason, issued a proclamation stating that he had taken possession of the office of governor. On the following day the assembly adjourned to the first Monday of January, 1869, and as the senate refused to concur in the adjournment, the lieutenant-governor sent in a message as acting governor adjourning both houses to that day. Meanwhile Governor Eeed refused to surrender possession of his office, and requested the opinion of the State Supreme Court on the question whether a quorum of the senate had been present when the impeachment was presented, and whether the proceedings had the effect of suspending him from office. The lieutenant-governor wrote the court claiming that it ought not to give a legal opinion upon the questions which were within the exclusive jurisdiction of the senate and assembly. The court held unanimously that no quorum of the senate was present when the impeachment was presented, and that consequently Governor Reed had not been sus- pended from office.^* In December, 1868, the Supreme Court upon an 63 Constitution of 1865, Article III, Communication of the 9th of Novem- Sec. 19- ber, A. D. 1868, 12 Florida, 653. 6^ In the Matter of the Executive APP.] MISSISSIPPI. 681 information in the nature of a 5^0 warranto entered judgment removing the lieutenant-governor from oflSce for ineligibility ; *° but he obtained a writ of error and supersedeas from the Supreme Court of the United States, which kept him in office a while longer. When the legislature reassembled in January, 1869, the vacancies had been flUed by intervening elections, both houses recognized Governor Reed as still in office, and the impeachment was abandoned. °^ ALABAMA. In 1876, an information was filed by the State attorney-general in the supreme court of Alabama for the removal of Charles W. Buckley, probate judge of Montgomery County, for corruption and misconduct in office, with specifications of the unlawful purchase of and dealing in county claims, a conspiracy to procure a contract for the support of the poor for his fellow conspirator, who was not the lowest bidder, and the appointment of a guardian ad litem with a corrupt understanding and agreement that the guardian should share his fees with the judge. The proceeding was founded upon a constitutional provision which gave the court jurisdiction of such cases ' ' under such regulations as may be prescribed by law," " and a statute which authorized depositions to be put in evidence. The court held that that part of the statute was un- constitutional ; that without them there was no law prescribing the mode of trial ; and that consequently it had no jurisdiction.^^ MISSISSIPPI. In 1808, the legislature of the Mississippi Territory directed the Territorial delegate to impeach in Congress, Peter B. Bruin, the pre- siding judge of the Territory, for drunkenness on the bench and neglect of duty. The delegate, George Poindexter, after the resolutions were read, obtained the appointment of a committee to investigate the charges, but no report seems to have been made.^' «6 The State of Florida in the Kela- Cong., First Sess., pp. 561, 562, 589, tion of the Attorney-General «. ■William 608. In 1833, the House Committee H. Gleason, 12 Florida, 190. on the Judiciary reported their opin- es Appleton's Annual Encyclopsedia ion that a territorial judge was not for 1868, pp. 273-276. an ofQcer of the United States and so " Alabama Constitution, Art. VII, could not be impeached (House Ke- Sec. 3. ports, 22d Congress, 2d Sess., No. 88). 68 The State ex rel. Attorney-Gen- In 1839, Felix Grundy, the Attorney- eral v. Buckley, 54 Ala. 599. General, gave a similar opinion (Ex. «9 American State Papers, vol. xx. Doc, 25th Cong., 3d Sess., vol. iv, pp. 921, 922 ; House Journal, Tenth No. 154). For these references the 682 STATE IMPEACHMENT TBIALS. [APP. In 1876, Adalbert Ames, governor of Mississippi, was impeached and tried before the State senate. The articles charged a failure and refusal to comply with the request of the county treasurer to suspend a sheriff and tax collector who had failed and refused to make monthly reports and payments of the taxes collected ; the appointment of justices of the peace and constables for partisan purposes ; the approval of an oflflcial bond filed by the State treasurer, which was defective in form and signed by insufficient sureties ; permitting the State treasurer to re- main in office and in possession of the treasury after the State attorney- general had notified the governor that the bond was insufficient ; insti- gating and directing a forcible removal of a sheriff by soldiers of the United States ; defrauding the State of 133,750 by granting contracts to personal and partisan favorites for convict labor without any fair and open competition or public bidding, and at less than other persons would have paid for the same ; conspiring to slander and libel a citizen of the State in order to prevent his appointment to the office of district attorney of the United States ; permitting, conniving at and assisting in an ex- change of offices between a chancellor and a district attorney ; neglect- ing and refusing to nominate chancellors to the senate while in session, and appointing them in vacation, with thirteen specifications of such offenses ; endeavoring to persuade the chief-justice to interfere with, direct and control the judicial action of the latter's son, who was then a chancellor in a certain cause ; when he failed in this, arbitrarily and corruptly removing the said chancellor, and failing to report to the sen- ate at its next succeeding session his appointment, in the recess, which consequently lapsed ; unlawfully removing three other chancellors ; ap- pointing to the office of chancellor in six specified cases men who were notoriously incompetent, immoral and dishonest, of whom one had been publicly charged with forgery, and two others, one a physician, had never practiced law and had been admitted to the bar only a few days prior to their appointment, with the understanding that they should re- ceive their appointment upon admission ; inciting a riot and conflict of arms between the whites and blacks in a certain county, by calling out a company of black militia in the charge of dangerous, turbulent and obnoxious officers, causing them to march and parade with the purpose of thus provoking bloodshed ; making intemperate and in- flammatory speeches with a design to bring out an armed conflict between the white and colored citizens of the State, in which he said amongst other things : " I and other white men have faced the bullets to free the author is indebted to the courtesy of haustive study of the subject of Ameri- Melville E. Ingalls, Jr., Esq., of the can Impeachments. New York bar, who has made an ex- APP.] MISSISSIPPI. 683 colored people, and now if they are not willing to flght to maintain that freedom, they are unworthy of it." " What if it does cost blood ; the blood of the martyr is the seed of the church." " That very likely fif- teen or twenty negroes may be killed, but that it would result to the benefit of the Republican party " ; making an intemperate and inflamma- tory speech and giving unlawful advice to a person claiming the office of sheriff, thus causing riot, bloodshed and death, through the at- tempt of the claimant to take possession of his office by force of arms ; in consideration of the payment of three thousand dollars to a third person, granting a pardon to a person imprisoned after conviction of the crime of rape upon a child; and grossly, willfully and wickedly abusing and perverting the power and discretion of pardoning criminals by granting a pardon in the last named case, upon a petition signed by a few of the respondent's personal friends, who did not pretend to any personal knowledge of the facts and were residents of a distant part of the State, which petition stated only one substantial reason for the pardon, a statement known by the respondent to be false. A few weeks after the articles of impeachment were adopted, a mem- ber of the house presented a letter from the governor stating that on account of his embarrassment by the election of a hostile legislature, he desired to resign his office, but that he could not and" would not retire from the position while the proceedings of impeachment were pending against him. Thereupon the house adopted a resolution with a pre- amble referring to this letter and a direction that the managers be di- rected to disraiss the articles of impeachment. The articles were ac- cordingly dismissed with the consent of the senate.'" In the same year, the lieutenant-governor, Alexander K. Davis, was impeached, and notwithstanding his attempted resignation, was convicted and sentenced to removal from office and perpetual disqualification by a vote of thirty-two to four upon articles charging the sale of a pardon to a convicted murderer while the governor was absent from the State." In the same year, Thomas W. Cardozo, superintendent of education, was impeached on articles which charged embezzlement of the State funds, and useless purchase of excessive supplies for the schools, receipt of bribes, making false returns and knowingly paying fraudulent war- rants. Pending the proceedings he resigned, whereupon the assembly abandoned the impeachment and the senate sitting as a court adjourned without a day.'" '"The testimony in the Impeach- Miss: Power & Barksdale, State Prin- ment of Adelbert Ames, as Governor ters, 1877, pp. 323. See also Senate of Mississippi. Index to Articles of Journal by same publisher, pp. 62. Impeachment, p. 317; Alphabetical fi Senate Journal of Trial, pp. 133. Index to Witnesses, p. 230. Jackson, ''^ Senate Journal of the Trial, pp. 684 STATE IMPEACHMENT TEIAiS. [APP. TENNESSEE. Thomas N. Frazier, judge of the criminal court of Davidson County, was impeached before and convicted by the senate of the State of Ten- nessee in 1867. The proceedings grew out of the ratification of the Fourteenth Amendment to the Constitution of the United States by the legislature of that State. An attempt was made in 1866 to block the ratification by preventing a quorum of the house of represen- tatives. The State constitution provided that "Two-thirds of each House shall constitute a quorum to do business, but a smaller number may attend from day to day and may be authorized by law to compel the attendance of absent members." Another clause provided that "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, but not a second time for the same offence, and shall have all other powers necessary for a branch of the legislature of a free State." No act had been passed expressly authorizing a smaller num- ber of representatives than a quorum to compel the attendance of absent members. The rules of the former house of representatives gave such authority. The members of the new house who assembled, although less than two-thirds, ordered the arrest by its sergeant-at-arms of two of the absent members, who were brought in by him and held there in custody. On the day after they were brought there. Judge Frazier issued a writ of habeas corpus commanding the sergeant-at-arms to bring one of these members before him for examination as to the reason of their imprisonment. The house of representatives thereupon resolved that they denied the jurisdiction of the criminal court in the premises, and its authority to interfere with the discipline and regulations of the house, and directed the sergeant-at-arms to continue under arrest all members retained by him under the resolution until otherwise ordered by the house. The sergeant-at-arms obeyed the resolution and filed it as his return. The judge refused to accept the return, issued an at- tachment against the sergeant-at-arms, had him brought into court by the sheriff of the county, punished him by a fine of ten dollars for con- tempt of court, and ordered the sheriff to release the members from the custody of the house, which he did. For this Judge Frazier was impeached. The trial is interesting to students of the history of the Reconstruction. The facts were undisputed, and the only questions were whether a less number than a quorum of those elected to the house 59. The volume which contains the journals of the three trials may be found in the Astor Library. ■^^'P-'] AEKANSAS. 685 of representatives had authority to compel the attendance of absent members when no statute upon the subject had previously been passed, and also whether the judge's intent was criminal. He was convicted by a vote of 14 to 4, and sentenced to a removal from office and disqualifica- tion from holding any office thereafter in the State of Tennessee.'" AEKANSAS. In 1871, Powell Clayton, governor of the State of Arkansas, was im- peached by the State house of representatives. A short time previously he had been elected senator of the United States. The articles charged that he had conspired with the members of the State supreme court to maliciously and unlawfully deprive the lieutenant-governor, James M. Johnson, of his office to which he had been duly elected and for which he had duly qualified ; that he had unlawfully removed a county and probate judge who had beeen duly and constitutionally elected ; that he had directed, encouraged and aided in frauds in the election of a senator and three representatives to the general assembly of the State ; that he had accepted pecuniary considerations for issuing bonds or obligations of the State, to and in favor of the Memphis and Little Rock Eailroad Company and the Little Rock and Fort Smith Railroad Company, in utter violation of law and disregard of his official duty ; that he had issued bonds or obligations of the State, to the Mississippi, Ouachita, and Red River Railroad Company when that company was notoriously' not entitled to the same under the laws ; and that he had been guilty of other misconduct and malfeasance in office, and high crimes and mis- demeanors. At the same time a resolution was passed that the respondent be sus- pended from exercising the functions of governor, and the members of the house of representatives proceeded by force to lock him into the executive chamber or nail the door in order that he might not escape and act. The governor notified the assembly on the following day that he had been unofficially informed that the articles had been ap- proved and a resolution of suspension passed ; but that he had been advised by counsel that the constitution did not confer the power of suspension from office on the assembly. The next day a resolution 73 Proceedings of the High Court of Form of Subpoena and Summons with Impeachment in the Case of People of Eeport of House Committee, pp. 8. the State of Tennessee v. Thomas N. Appendix : containing the Evidence Frazier, Judge, etc. Begun and held and Argument of Counsel in the case at Nashville, Tennessee, Monday, May of The People of Tennessee v. Frazier, 11th, 1867. Nashville: S. C. Mercer, Judge, &c.. Impeached, pp. 207. Printer to the State, 1867. pp. 124. 686 STATE niPEACHMENT TRIALS. [APP. was passed impeaching John McClure, the chief-justice of the State, which charged : that he had engaged in a conspiracy with the governor and others, to unlawfully and maliciously deprive Lieutenant-Governor James M. Johnson of his office to which he had been duly elected and to which he had duly qualified ; that he had bargained for pay and bribes to influence his actions and decisions as a justice of said court, at divers times and on various occasions, all contrary to law and the constitution of the State of Arkansas ; that he had, as chief-justice of the supreme court, without authority and in violation of law and the Constitution of the State of Arkansas, issued a writ of mandamus upon Lieutenant-Governor James M. Johnson, " now acting governor of the State of Arkansas," by reason of the impeachment of Governor Powell Clayton by the house of representatives, and said Clayton suffering under said disabilities, and pretending to restrain the said lieutenant-governor from performing the functions of said office, thus presenting a remarkable and unwarrantable case of one co-ordinate department of government attempting to restrain another by a writ of mandamus ; all with the unlawful and corrupt de- sign to retard the operation of the State government, and in contempt of the house. As soon as a quorum of the senate was present, articles of impeachment against the governor and chief-justice were presented. Other State officers were impeached about the same time, amongst them a county clerk and a district attorney. The senate thereupon adopted rules for the court of impeachment, to expedite the proceedings, which forbade managers from arguing any preliminary or interlocutory ques- tion or motion during the trial for more than ten minutes, unless the senate should otherwise direct, and by which more than two of the managers were prohibited from making a final argument on the merits, and the final argument of each was limited to thirty minutes, unless the senate should extend the time. Thereupon the committee of managers reported to the house that in their opinion no fair and impartial trial of the impeachment of Governor Clayton could be had before the senate under those rules, and that any trial under them would be a farce. They also stated that they were willing to again appear at the bar of the senate and announce the impeachment of the governor upon the follow- ing conditions : That they should be assured that any articles of im- peachment preferred by the committee against the said governor will not be considered invalid, set at naught, or dismissed by the senate, because notice was or has not been given to them within the time re- quired by law. That the senate would give the committee at least twenty days in which to prefer particular articles of impeachment against the governor and at least thirty days from the second announce- ment or notice of the impeachment in which to produce the evidence to APP, J ARKANSAS. 687 sustain the same, and also all continuances necessary to obtain import- ant testimony which they had failed to obtain after the use of reason- able diligence ; and that the senate repeal the rules adopted for im- peachment trials and grant to them an unlimited right of argument and debate of all questions and issues of law, fact and evidence arising in the progress of the trial. The report was accepted, the committee discharged, and the speaker authorized to appoint another board of managers, which was done. It was then resolved that all cases, reports and questions arising in any way upon cases of impeachment be post- poned for several days, except questions arising out of the impeachment of the governor and chief-justice. The new committee then reported that they had been unable to find sufficient evidence or information that would warrant them in attempting to prepare particular articles of im- peachment against the governor, and requested that they be discharged. It was accordingly resolved by the house "That further proceedings in the impeachment of Powell Clayton be dispensed with, and that the action of this house heretofore taken, be set aside and cancelled ; that the senate be informed of the action of this house in the premises, by the clerk of the house, and that the committee as the board of mana- gers be discharged." On the same day Governor Clayton sent the sen- ate a message declining to accept the position of United States senator. The committee of managers appointed to appear and prosecute the arti- cles of impeachment against Chief-Justice McClure, reported that they were of the opinion that ' ' all those specifications and charges against the Honorable John McClure, which are alleged against him while he was associate justice of the Supreme Court of the State of Arkansas, cannot be properly and legally considered against him as chief -justice of the supreme court of the State of Arkansas." They presented a single ar- ticle of impeachment. This charged that on February 16th, 1871, at the City of Little Rock, in the state of Arkansas, " unmindful of the high duties of his office, of his oath of office, that the requirements of the constitution should be honestly, faithfully and impartially adjudi- cated, did unlawfully and in violation of the laws and constitution of the state of Arkansas," issue a fiat in the nature of a temporary re- straining order, in writing, directed to the clerk of the supreme court of the State of Arkansas, directing and ordering the clerk to issue forth- with an order, directed as the law directs, commanding and restraining James M. Johnson and his confederates from attempting to usurp or exercise the functions of governor of the State of Arkansas, or in any manner to interfere with the exercise of the functions thereof by Powell Clayton. That thereupon the clerk issued his order accordingly, which order was duly served on the lieutenant-governor, James M. Johnson ; 688 STATE IMPEACHMENT TRIALS. [APP. the chief-justice well knowing that Johnson was lieutenant-governor, and " which order was unlawfully issued, with intent then and there, in violation of the laws and constituion of the State of Arkansas, the said John McClure, chief-justice of the State of Arkansas, to interfere with the exercise of the rights, franchises and functions of the executive de- partment, and to hinder the said James M. Johnson, being then and there lieutenant-governor of the State of Arkansas, and being then and there in due execution and discharge of the duties of said office, whereby said John McClure, chief -justice of the State of Arkansas, did then and there commit and was guilty of a high misdemeanor in office." The report was adopted and the article presented at the bar of the senate. A compromise was arranged, under which Johnson resigned and was appointed secretary of state. Governor Clayton was then re- elected to the Senate of the United States, and accepted the office. A special chief-justice was appointed by the governor to preside on the trial of Chief -Justice McClure. The respondent filed a demurrer to the articles, upon the ground that, although he was charged with unlaw- fully issuing an order, it was not alleged that he did it with a corrupt motive, or with an intent to interrupt the course of law and justice. The demurrer was unanimously sustained. In the same year, impeach- ments were voted, but not pressed, against several judges of inferior courts, prosecuting attorneys, and county clerks.'* LOUISIANA. In 1844, Benjamin Elliott, judge of the city court of the city of La- fayette, was impeached and tried before the Louisiana senate. The articles charged that he had failed to properly keep the records of the naturalization of aliens in his court, and that he had permitted the issue by his clerk of seventeen hundred and forty-eight false certificates of naturalization. Judah P. Benjamin was one of the managers, and Pierre Soule one of the counsel for the respondent. Judge Elliott was con- victed and sentenced to removal from office.'^ '* Arkansas House Journal for 1871 ; '^ Official Eeport of the High Court Arkansas Senate Journal for 1871 ; of Impeachment of the State of Loul- Trial of John McClure, Chief-Justice siana, on the Trial of Benjamin C. of Arkansas, Little Eook, Arkansas : Elliott, Judge of the City Court of the Price & McClure, State Printers, 1871. City of Lafayette; Begun and holden The Brooks-Baxter "War. A History of at the City of New Orleans, the 23d of the Eeconstruction Period in Arkansas, March, 1844. (Published by Author- by John M. Harrell. The Almighty ity.) New Orleans: Printed at the Dollar. 1893; Slawson Printing Co., ofSee of the Morning Herald, 34 St. St. Louis. Charles Street, 1844 ; pp. 40. ^P-] LOUISIANA. 689 In 1870, George M. "Wickliffe, auditor of the public accounts, was impeached and tried before the senate of the same State. The articles charged a default upon an application for a mandamus to compel the issue of warrants by him to which he and the State had a legal defense ; the unlawful issue of warrants on the State treasury, — in one case for his own use, in another, in consideration of a bribe ; — extorting the payment of large sums of money for auditing accounts for printing, and for cutting up warrants into smaller warrants, which were more easily negotiable ; failing to make a report required by the constitution ; issuing a new war- rant in place of one which had been issued when the State was under the control of the Confederate government ; employing more clerks than the law allowed ; and keeping his office in such a state of confusion that it was impossible for him to report to the governor or the general assem- bly the condition of the State finances, or for the committee of the gen- eral assembly to ascertain the State's financial condition in any reasonable time, thereby proving himself to be incompetent to perform the duties and functions of his high oflSce. The respondent answered, denying or justifying all the matters charged. He set up as a defense to several of the articles that he had been indicted, tried, and acquitted of the matters therein charged by a court and jury. After the evidence was concluded and a judgment was pronounced, the counsel for the respondent presented his resignation from his office. Chief-Justice Ludeling, at the request of a senator, stated his opinion that the resignation did not deprive the court of juris- diction. A vote was taken on but one article, which charged : That the respondent had issued a warrant on the State comptroller for $1980, and induced the payee to indorse and negotiate it for his own benefit, although he knew that it was unauthorized and issued in payment of an illegal claim. He was unanimously convicted, and sentenced to removal from office and disqualification from holding any office in the State." In 1872, Governor Henry C. Warmoth was impeached and tried before the State senate. The articles charged : the forcible expulsion from office of the secretary of state and the issue of a commission to another in his place ; the unlawful appointment after the adjournment of the senate of a tax-collector whose nomination the senate had rejected ; the issue of commissions to the offices of attorney-general, judge, sheriff and other offices to candidates who had not been elected ; connivance in the forcible ejection of a judge from his office in order to obtain posses- sion of the court and use the same in a scheme to remove and set aside '6 Official Journal of the Proceed- held in New Orleans, Jan. 3, 1870. ings of the Senate of the State of By authority. New Orleans: A. L. Louisiana, at the session begun and Lee, State Printer, 1870 ; pp. 192. 690 STATE IMPEACHMENT TRIALS. [APP. the board authorized to count and return the votes ; the offer of a bribe of $50,000 to the Lieutenant Governor, P. B. S. Pinchback, at two o'clock in the morning, if the latter would on that day organize the State senate in Warmoth's interest, break down the opposition to the Fusion party in the legislature, and place himself under the respondent's direc- tion and control ; the inducement and procurement of the supervisors of registration by the promise of patronage, threats of dismissal from offlce and bribery, to refuse and fail to register a large number of legal voters, and to make a false return of the votes cast at a presidential election ; the offer of an offlce as a bribe for similar misconduct at a State election ; the issue after his impeachment and suspension from offlce of two proc- lamations which refused to recognize the legislature which impeached him and recognized another body as the lawful legislature. The re- spondent appeared by counsel and filed exceptions disputing the legality of the court and the lower house on the ground that they were not law- ful bodies. The court rejected these and refused to permit them to be filed. Before any further proceedings the senate requested the advice of the chief -justice whether the trial could proceed after the respondent's term of offlce had expired. Chief-Justice Ludeling delivered an opinion that it could not, saying : " I question the policy of kicking a dead lion." The senate adopted this opinion and adjourned." TEXAS. In Texas, 1874, charges against James R. Burnett, a judge of the thirtieth judicial district, were presented to the legislature, with an ap- plication for his removal. The charges were : An illegal arrest on a charge of murder, after the grand jury had failed to find anindictment ; false representation to the governor that the civil authorities were unable to execute the laws in a certain county, which caused a proclamation of martial law, arrest, fine and imprisonment in the execution of the same, and increased taxation ; refusal to enjoin the military authorities from taking forcible possession of corn without compensation ; attempt- ing to assassinate, and procuring to be assassinated, one of the counsel in a case that was tried before him, by an assault on the part of the judge, who was then protected by an armed body of State police, while the attorney was alone and unarmed ; maliciously and through revenge causing the arrest of many citizens while martial law prevailed ; con- " Proceedings of the Senate sitting leans: Printed at the offlce of the as a Ciourtof Impeachment in the case RepubUcan, 94 Camp Street, 1873 ; pp. of the State of Louisiana v. Henry C. 14. See supra, § 38. Warmoth. By Authority. New Or- APP.] OHIO. 691 gratulating, upon his acquittal, one of the persons whom he had arrested for murder as above charged, and to whom he had refused bail, and an accompanying apology for such refusal, upon the plea that he was com- pelled so to act, — meaning thereby that he would have lost his office had he granted bail. Testimony was taken before a committee of the legislature in support of and against the petition.'' OHIO. In 1806, Calvin Pease, president judge of the third circuit of Ohio, held that so much of the State law of February 12th, 1805, as attempted to give to justices of the peace jurisdiction of claims for more than twenty dollars, and to prevent plaintiffs in other courts from recovering costs when they recovered judgment for more than twenty and less than fifty dollars, was repugnant to both the State and Federal Constitutions, and consequently void. This, which was the first decision in that State which held an act of the legislature unconstitutional, was followed by the pres- ident judge of the third circuit, George Tod, and Judge Huntington also of the supreme court ; but it created great public excitement, and led to the separate impeachment of Judges Pease and Tod at the session of the legislature in 1808. Judge Huntington had in the meantime been ■ elected governor ; and for that reason the charge against him was aban- doned. The articles against Judge Pease charged : '■'■First, That on ap- peal from the judgment of a justice of the peace, for a sum exceeding twenty dollars, he had, as president judge of the third circuit, reversed that judgment, on the ground that the justice had no constitutional ju- risdiction of the case. Second, That in an action for a sum between twenty and fifty dollars, commenced by original writ from the court of common pleas, he had allowed the plaintiff his costs of suit, upon recov- ering judgment, contrary to the twenty-ninth section of the Justices' Act, and the fifth section of the act organizing the judicial courts. Third, That, sitting as president judge of the third circuit, he had decided, on various occasions, that the court had full power to set aside, suspend, and declare null and void, the fifth section of the act defining the duties of justices of the peace." The respondent's answer admitted that in his judicial capacity he had decided that the fifth section of the act was unconstitutional and void, asserted his right to make the decision, and insisted that it was his duty '8 The State of Texas against Hon. teenth Legislature, appointed to in- James K. Burnett, judge thirtieth vestigate charges preferred by an judicial district. Evidence taken be- Address for removal from Office. Aus- fore the Joint Committee of the Four- tin : J. D. Elliott, State Printer, 1874. 692 STATE IMPEACHMENT TKIALS. [APP. to determine cases brought before him according to the convictions of his judgment, " and vindicated the purity of his motives and upright- ness of his official conduct." After a trial of several days, on February 6th, 1809, Judge Pease was acquitted, through the lack of a two-thirds vote against him. The vote on the first charge was unanimous for ac- quittal ; on the second, fifteen for conviction against nine for acquittal. The third charge was decided, by a vote of sixteen to eight, to be insuf- ficient to sustain an impeachment. At the same session. Judge Tod was previously tried and acquitted upon similar articles. At the following session, the legislature, by a majority of less than two-thirds, adopted the "sweeping resolution" which declared to be vacant all judicial offices that had been filled by appointment before the adoption of the constitutional provision giving to the legislature the right to elect judges. Although many de- clared this resolution to be a violation of the State constitution, those judges against whom it was directed submitted. Judge Pease promptly resigned, and Judge Tod made no objection to the appointment of his successor. Six years later, both of them were restored to the bench." In 1811, Judge John Thompson was impeached, and in 1812, tried and acquitted by the senate of the same State. Since the proceedings are only reported in the legislative journals, which are rare, the articles are inserted here at length : — " Articles exhibited by the house of representatives of the state of Ohio, in the name of themselves and of all the people of the state of Ohio, against John Thompson, president of the court of Common Pleas, for the second circuit, in maintenance and support of their impeachment against him for high crimes and misdemeanors. "Article I. That the said John Thompson, unmindful of the solemn duties of his office, and contrary to the sacred obligation by which he stood bound to discharge them faithfully and impartially, agreeably to law and without respect to persons : the said John Thompson, on the trial of Jonas Graham, charged with larceny, before the court of Common Pleas, holden in the county of Clermont, in the circuit aforesaid, at the town of Williams- burg, in the month of September, in the year of our Lord one thousand, eight hundred and eleven, whereat the said John Thompson, president, did, in his judicial capacity, arbitrarily, illegally and injuriously, and in a manner highly oppressive, confine and restrict the attornies engaged in the defence of the said Graham to two in number, in their address to the jury, in defence of their client ; and did also observe, that the attornies engaged in the case should not occupy more than ten minutes, each, in their argu- " Sketch of Hon. Calvin Pease, Sketch of Hon. David Tod, by same Western Law Monthly, vol. ii, p. 1. author, ibid., p. 113. APP.] OHIO. 693 ments to the jury on the trial aforesaid ; and when one of the defendant's counsel stated to the court, in respectful terms, that he thought it impossi- ble to elucidate the law and evidence arising on the case aforesaid in so short a time as ten minutes, he, the said John Thompson, imperiously and peremptorily declared from the bench, that if the attornies engaged in the cause aforesaid were not satisfied with ten minutes each, they should have but five; and to five minutes, each, the attornies aforesaid, in their ad- dress to the jury aforesaid, by the order of the said John Thompson, were arbitrarily and illegally restricted and confined ; and the said John Thomp- son, in a manner highly arbitrary, oppressive and unjust, at the term of the court of common pleas aforesaid, and on the trial of Samuel Howell, charged with usurpation of oflice (when one of the attornies of said court was called by the counsel for said Howell to give testimony in behalf of his client), declared from the bench, while in the discharge of his official duties, that the gentlemen of the bar might take notice, that no attorney should thereafter be admitted to give testimony in that court, and the attorney aforesaid, who was called as a witness, though not engaged in the cause, was not sworn. ''Article II. And the said John Thompson, prompted by a similar spirit of persecution and injustice, at a court holden in the town of Williamsburg, in and for the county aforesaid, in the month of December, instant, did, while in the discharge of his official duties, conduct himself in a manner highly arbitrary, illegal, oppressive and unjust. 1st. In ordering the con- stables who kept the doors of the bar, to knock down certain by-standers with their staves, without assigning any reason therefor. 2nd. In refusing to sign a bill of exceptions when legally tendered on the trial of Samuel Elliot, and in erasing with his pen part of the bill aforesaid, and writ- ing another with his own hand, containing facts .not excepted to, though naming the same parties and cause, and signed the same as the true bill of exceptions. 3rd. In declaring on the trial of Benjamin Snider, who was charged with an assault and battery, as the opinion of the court that the attorney for the said Snider had no right to argue the question of fact to the jury, without the permission of the court, and when the opinion of the associate judges was individually called for on the question of right afore- said, and they decided the attorney had the right to argue facts to the jury, John Thompson imperiously and impatiently told the attorney to go on. 4th. In coercing a jury which had been a long time out, and which came into court and asked again to examine the witness, but was prevented by John Thompson, who told them the cause was too trifling to take up the time of the court, and ordered the jury immediately to withdraw. 5th. In ordering and compelling a jury to be sworn on the trial of James Lewis, charged with robbery, although the jury all declared in their places, be- fore they were sworn, that they had made up an opinion on the case, and the jury found the defendant guilty without leaving the box. "Article III. That instigated by a spirit of wantonness, injustice and 694 STATE IMPEACHMENT TEIALS. [APP. intemperance, entirely incompatible with his duties as a judge, and totally unworthy the high station he fills, he, the said John Thompson, at a court of common pleas holden at Chillicothe, in the county of Boss, in the circuit aforesaid, on the second Monday of October, in the year of our Lord, one thousand, eight hundred and eleven, while in the discharge of his official duties, did declare that the people were their own worst enemies, and that they were cursed brutes — worse than brutes. '^Article IV. That at a court of common pleas holden in and for the county of Highland, at the town of Hillsborough, in the month of November last, the said John Thompson, not regarding his official duties, illegally and un- justly refused to sign a bill of exceptions to testimony offered on the trial of the commissioners of the county aforesaid, who were charged with im- proper conduct in the discharge of their duties as commissioners. And secondly, for refusing to let an appeal, legally taken by James D. Scott, from the judgment of a justice of the peace, be entered on the docket of said court. "Article V. That the said John Thompson, disregarding the duties and dignity of his official character, did, at Gallipolis, in the county of Gallia, during the term of the court of common pleas holden therein for the county aforesaid, in the month of September, one thousand eight hundred and ten, return into court two recognizances of special bail, purporting to be taken and acknowledged before him as president of the second circuit, in both of which recognizances Calvin Shepherd and Luther Shepherd were named as special bail for a certain William Bridger, which recognizances of special bail were not on the day on which recognizances were dated, or at any other time before or after, acknowledged by the said Luther Shepherd and Calvin Shepherd before the said John Thompson, or any other person. '■^Article VI. That the said John Thompson, disregarding the important privilege of trial by jury, and disregarding his judicial character, did, at a court of common pleas holden at Gallipolis, for the county of Gallia, in the month of September, one thousand eight hundred and eleven, on the trial between Edward W. Tupper, and Joseph and Thomas Vail, arbi- trarily, unjustly and illegally, confine the attornies employed to twenty or twenty-five minutes in their arguments to the jury ; and when one of the attornies had spoken that length of time to the jury, Judge Thompson ordered him to sit down, and assigned as a reason for such order, that the court were convinced that the jury would not do justice to the cause. '■'■Article VII. That at a court of common pleas held at Gallipolis, in the county of Gallia, in the month of September, one thousand eight hundred and eleven, the said John Thompson, not regarding his official duties, did illegally and unjustly order the prosecuting attorney not to suffer any per- son to give testimony to the grand jury, until he knew what that testimony was, that it might be laid before the court before it went to the grand jury. And at the same term in the county and place aforesaid, he the said John Thompson did, illegally and arbitrarily, send a message to the foreman of APP.J OHIO. 695 the grand jury the day before, and send it to him for the purpose of pre- venting him, the said John Thompson, from being indicted for having returned into court a recognizance of special bail which never had been acknowledged before him, or any other person, by the persons named as bail in the recognizance aforesaid. ^^ Article VIII. That the said John Thompson, influenced by a spirit of wantonness and aversion to the American government and the good people of these United States, did, at a court of common pleas, holden at Circle- ville, in the county of Pickaway, in the month of November, one thousand eight hundred and eleven, while delivering a charge to the grand jury, illegally and derogatory to his character as a judge, with the intention to prejudice the minds of the people against their government, declare from the bench, that the American government was the most corrupt and per- fidious government in the world ; that the people of the government afore- said were their own worst enemies — that they were devils, perfect devils in men's clothing. " And the house of representatives, by protestation, saving to themselves the liberty of exhibiting, at any time hereafter, any further articles or other accusation or impeachment against him, the said John Thompson, and also of replying to the answers he shall make to the said articles, or any of them, and of ofEering proof to all and every of the aforesaid articles, impeach- ment or accusation which shall be exhibited by them, as the case may re- quire — do demand that the said John Thompson may be put to answer the aforesaid crimes and misdemeanors, and that such proceedings, examina- tions, trials and judgments may be thereon had and given, as are agree- able to law and justice." *° In 1814, James Ferguson, a justice of the peace, was impeached, tried and acquitted before the senate of the same State. The articles charged the unlawful discharge of two persons arrested under a warrant for as- sault, and refusal in the same case to permit the complainant upon whom the assault had been committed to testify on the part of the State ; causing the illegal and unjust rendition of a judgment against the com- plainant, for costs and the collection of the same through a constable ; refusing to furnish the complainant with a copy or transcript from his docket, although the legal fee was tendered him ; and the use of inde- corous, insulting and angry language on the same occasion, when he ordered the complainant out of his office and followed him into the yard, threatening to kick him as long as he could find him if he did not im- mediately depart." 80 Copied from House Journal of State of Ohio, being the Twelfth Gen- Ohio, for the Session of 1811 and 1812, eral Assembly, begun and held in the at the N. Y. State Library. town of Chillicothe, in the county of 81 Journal of the Senate of the Koss, on Monday, the sixth day of 696 STATE IMPEACHMENT TEIALS. [APP. ILLINOIS. In 1833, Theophilus W. Smith, a justice of the supreme court, was impeached and tried before the senate of the State of Illinois. The articles charged : his permitting his son, then a minor, to bargain off the office of clerk of the circuit court of Madison county and to hire and employ another to do and perform the duties thereof at twenty-five dol- lars a month, reserving the fees and emoluments of the said office to himself, which contract the respondent ratified and confirmed, reserving the fees and emoluments of the office less the twenty-five dollars per month to himself with the intention of reserving a future appointment to the office for his son ; appointments to the office of clerk of the cir- cuit court within his circuit without requiring bonds as the law directed, with the corrupt intention of rendering said office subject to his will ; bringing a suit in which he was interested in a court in which he presided, and causing the defendants therein to be held to bail in an excessive sum ; suspending an attorney from practice because he had instructed his client to consent to any change of venue which would remove the cause to any court where the respondent did not preside ; committing a quaker to jail and certifying that he was incompetent to serve as a juror by reason of a want of soundness of mind, because he presented him- self to the court with his hat on ; and rendering an opinion involving the rights of a county with the intent to prejudice it on an agreed case made up between the sheriff and county treasurer, although he well knew that the rights of the county might be, and they in fact were, afterwards submitted to his decision, which was then made in accor- dance with the preceding opinion. The respondent was acquitted on all the charges, the senate being nearly equally divided.'^ MICHIGAN. In 1872, Charles A. Edmonds, commissioner of the State land-office was impeached and tried before the senate of Michigan. The articles charged him with corruptly withholding land from sale for the benefit of certain land-dealers in return for money paid to himself and deputies and clerks ; with engaging in the purchase of State lands, sold in his office ; with deciding that certain lands which were in the possession of actual settlers who had failed to file proofs of their settlement and occu- Becember, 1813, and in the twelfth S2 Appendix to Illinois Senate Jour- year of the said State. Published by nal for 1832. Vandalia: Printed by authority. Chillicothe : Printed by Greiner & Sherman, 1833. pp. 91. James Barnes, 1813. APP.] WISCONSIN. 697 pancy in his oflBce were subject to sale, and with furnishing secret informa- tion concerning such lands to land-dealers, in whose profits he shared ; with engaging in the sale of swamp-land scrip ; with appointing and keep- ing in his office as clerks men of dissolute habits and character, unworthy of their position, and allowing them to purchase and to be interested in the purchase of land in his office, and to corruptly sell to land-dealers valuable information therein contained ; with keeping for his own use, the purchase money from State lands and depositing in the State treasury swamp-land scrip in place thereof ; with depositing in a post- office of the United States, in the State of Indiana, an obscene news- paper entitled " Every Saturday Night," in violation of the statutes of the United States regulating matter transmitted through the mails ; with publishing and circulating the same newspaper in the State of Michigan ; with disgracing his office by drunkenness during his official term at the City of Lansing ; and with committing adultery at the city of Lansing, during his official term, he then being a married man. The respondent was acquitted on all these charges, in most instances by a majority or unanimous vote in his favor ; and on three articles by a bare majority which was less than two-thirds against him. He was ably defended by John B. Shipman, whose arguments contained the most learned disquisition on the law of impeachment that the writer has ever seen.'' WISCONSIN. In 1853, Levi Hubbell, judge of the second judicial circuit of the State of Wisconsin, was impeached and tried before the State senate. The articles charged : that he consulted with one of the counsel in a case pending before him during the trial, and afterwards while he was holding his decision under advisement, and that at the same time he borrowed from the same counsel two hundred dollars, making no agreement for the repayment thereof, which the counsel charged to his client's account ; that within two days thereafter he decided in favor of the client of the lawyer from whom he had borrowed the money, and that the so-called loan was treated as a gift until after threats of prosecution by impeach- ment for receiving the same as a bribe, when he gave a due-bill for the sum of money which was never collected. That he presided and adju- dicated as judge in causes in which he was pecuniarily interested ; with specifications of his purchase of a judgment, and his subsequent hearing 88 Trial of Charles A. Edmonds, Com- tives against him, for Corrupt Conduct missioner of the Land Office of the in Office, Crimes and Misdemeanors. State of Michigan, before the Senate By Authority. Lansing : W. S. George of said State, on an impeachment pre- & Co., State Printers and Binders, 1872. pared by the House of Represents^ Vols, i and ii. pp. 1891. 698 STATE IJIPEACHMENT TEIALS. [APP, and denying a motion to dissolve an injunction granted upon a creditor's bill brought to collect the same in the name of a third party who held the judgment for his use ; of his rendering judgment in a suit to collect a promissory note held for his use and benefit by another, and of his sub- sequent confirmation of a sale of real estate under said judgment, which had been sold to his brother for his use and benefit. That he had will- fully, arbitrarily, partially and illegally sentenced persons convicted of crime to punishment different from the punishment prescribed by law ; with specifications of the sentence of a man convicted of an assault with intent to kill to a fine of two hundred dollars and costs, and to the sentence of a man convicted of grand larceny to a fine of five dollars and costs. That he had presided and adjudicated in causes, in the subject whereof he had been retained and counselled with as attorney, solicitor and counsellor by the parties to such causes, and had acted as attorney, solicitor and counsellor in such causes ; with specifications. That he had taken and used moneys paid into his court in the progress of the suits therein, to the manifest scandal and danger of the adminis- tration of justice ; with specifications of his taking from the sheriff and clerk money collected in civil and criminal proceedings, and keeping and using the same for a considerable period of time. That he had im- properly and collusively given judicial advice and made judicial promises to suitors and persons likely to become suitors in the courts of the State on the subject-matter of their suits ; with three specifications, the last of which charged that he gave the advice concerning a divorce suit which was afterwards brought before him, and after granting a decree for divorce, solicited a present from the plaintiff. That in the exercise of his judicial functions he had conducted himself with undue and unjust' partiality and favor to particular suitors in his court ; with specifications of his refusal to hold a special term for the purpose of confirming a sale, because a party interested was his opponent, and afterwards holding the same for the benefit of another party who was his friend. That contrary to public decency he had a private and indecent interview with the wife of a party against whom an indictment was pending in his court, wherein she solicited him on behalf of her husband in the matter of said indictment, and that he afterwards brought about an acquittal of her husband. That against public decency he had a private and in- decent interview with a woman who was living apart from her husband, when he advised her in relation to a divorce ; afterwards permitted the husband, who also desired a divorce from his wife, to exhibit affidavits to him in support of such an application, advised the latter that the papers did not establish grounds for a divorce, and that he could obtain his end by permitting his wife to obtain it, to which the husband assented ; and APP.J MINNESOTA. . 699 afterwards knowing of this collusion, made a decree granting the divorce against the husband in the wife's favor. That he made an order staying an execution on a judgment until the further order of the court, because it was inconvenient and difficult for the defendant to pay it. That he partially and unfairly attempted to prevent the coun- sel for the plaintiff, in an action tried before him, from adhering to an admission of fact made by such counsel, and from making the same. That he insisted upon hearing a certain cause in chancery at a special term held by him for that purpose, and arbitrarily and partially refused the counsel for the defendant adequate time for the argument of said cause. That he had private and indecent interviews with women for the purpose of obtaining divorces, contrary to public decency and to the manifest scandal and danger to the administration of justice ; with four specifications, two of which were set forth in the specifications in the previous charges. That he had arbitrarily and oppressively exer- cised the functions of his judicial office to the danger of suitors and the administration of justice ; with specifications of ordering a new trial without suflScient cause and without argument ; of refusing counsel ade- quate time for argument ; of staying an execution without sufficient cause ; of quashing an indictment without proper cause, after having previously refused to quash the same ; and of forcing a motion to a hearing with- out reasonable cause. That he had contrary to his duty and obligation allowed himself to be improperly counselled on the subject of suits and proceedings instituted or about to be instituted in his courts by suitors and their friends and agents to the manifest scandal and danger to the administration of justice, with twenty-one specifications ; and that he had contrary to his duty and obligation as such judge informed and ad- vised upon the subject-matter of suits instituted or about to be insti- tuted in the circuit and supreme courts of this State, suitors, their friends and agents, to the manifest scandal and danger to the adminis- tration of justice. Judge Hubbell was acquitted by a majority vote in his favor on all of the articles. In some cases the vote was unanimous.'* MINNESOTA. In 1873, the Minnesota house of representatives impeached William Seeger, the State treasurer. The charges were his concealment of the delinquency of his predecessor in office, and his loaning the State funds 84 Trial of Impeachment of Levi T. C. Leland. Beriah Brown, Pub- Hubbell, Judge of the Second Judicial lisher, Madison : Argus & Democrat Circuit, by the Senate of the State of Steam Press, 1853. p. 820. Wisconsin, June, 1853. Eeported by 700 • STATE IMPEACHMENT TRIALS. [APP. to private individuals, some of tliem his bondsmen, a practice which was stigmatized as hazardous to the safety of the public moneys, although not forbidden by any statute. After the articles were presented to the senate, Seeger sent to the governor his resignation in a letter stating : that ' ' he believed himself already acquitted in the minds of all fairly disposed men" ; but that the principal reason for his resignation was the information he had recently received, that his counsel fees and other expenses, if he defended the impeachment, would amount to five or six thousand dollars, which would reduce his family to penury. The governor accepted the resignation, but the senate voted — twenty-six yeas to ten nays — " that this court will receive no evidence concerning the resignation of "William Seeger. Seeger's counsel then filed a plea of guilty to each of the articles " in the manner and form as in said charges and specifications alleged," which concluded with a statement that " the same were done without any corrupt or willful intent." The senate thereupon by a vote of more than two-thirds found the respondent guilty and sentenced him to removal from office.^" In 1878, Sherman Page, Judge of the Tenth Judicial District, was impeached and tried before the senate of the same State. The articles charged him with maliciously adjourning for four years the trial of an indictment for a libel against him, pending the adjournments, holding the accused under heavy bail, the excuse for the postponement being, that he did not care to try the case himself, and neglecting to pro- cure the attendance of any other judge of the district court to hold the term at which the case could be tried ; with appearing before the board of county commissioners, and in an angry and threatening man- ner asserted that it would be illegal for them to pay the biU of a deputy sheriff for subpoenaing certain witnesses, thus inducing the board to disallow the bill, and afterwards on an appeal from the judg- ment of a justice's court in favor of the deputy sheriff against the said board for the amount of the bill, falsely and erroneously deciding that the issue of the subpoenas was unauthorized by law, and that an order had previously been made, directing that none of the costs or fees for issuing or serving the subpoenas should be paid by the county, although the contrary was the fact ; with refusing at the conclusion of a term to make an order fixing the number of deputies which were necessary for the sheriff to have for attendance upon such term, although he had previously recognized and acquiesced in the attendance of a deputy ; with publicly insulting in open court the special deputy when he applied 85 Appleton's Annual EncyclopeBdia for 1873, pp. 508, 509. "*JPP-] MINNESOTA. 701 for the order, and with thus preventing the payment of the deputy ; ■with peremptorily and threateningly commanding a deputy sheriff, in the presence of the grand jury and a number of other persons in attend- ance upon a term of court, to pay over to the clerk of the court the sum which he had retained for his fees, without giving him a hearing, and thus compelling him to pay over such fees, at the same time reprimand- ing the deputy and accusing him of having retained illegal fees, and threatening that he would seriously punish him if he took any illegal fees again; "with needlessly, maliciously and unlawfully, and with intent thereby to foment disturbance among the inhabitants " of a certain county, and in particular among those of a certain village in said county, and with a further intent to insult and humiliate the sheriff, writing and causing to be delivered to the sheriff two orders, one directing him to "disperse any noisy, tumultuous or riotous assemblage of persons numbering thirty or more, or a less number, if any of them are armed, found anywhere within the limits of your county," also a letter reprimanding him for not having acted sooner in the matter; with maliciously attempting to persuade a grand jury to indict a county treasurer who had committed no crime, and when he failed in that pur- pose, directing the county attorney to prefer a charge against the county treasurer, arresting him upon such charges, compelling him to give bail, to appear at the next term of court ; and ' ' during the proceedings the said Page, as such judge, maliciously and without provocation spoke to and treated the county treasurer in a very insulting and unbecom- ing manner, and in particular accused the said county treasurer of having in other places and upon other occasions talked of himself, the said Page, in a derogatory way ; " with reprimanding the grand jury for failing to bring in an indictment against the said county treasurer ; with unlawfully issuing a warrant to arrest a party for contempt of court on account of publicly attacking him ; with requiring the attend- ance during the contempt proceedings, of a number of persons to testify as to matters wholly irrelevant to said charges for the purpose of ascer- taining what persons other than the accused had written and published attacks upon the judge, and with asking and compelling the answer of a number of irrelevant questions designed for this purpose; and with habitually demeaning himself towards the officers of his court and towards the other officers of the said county of Mower in a malicious, arbitrary and oppressive manner, and habitually using the powers vested in him as such judge, to annoy and oppress all other persons who had chanced to incur the displeasure of him, the said Page. The respondent was acquitted by a majority vote in his favor on all 702 STATE IMPEACHMENT TRIALS. [APP. the charges but three, and as to those three charges, which related to the proceedings against the county treasurer and the contempt proceed- ings, by a majority of less than two-thirds against him.*^ In 1881 E. St. Julien Cox, judge of the ninth judicial district of Min- nesota, was impeached, tried, and convicted before the senate for drunkenness in the discharge of his official duties. ^^ NEBRASKA. In 1871, the first governor of the State of Nebraska, David Butler, was impeached and tried before the State senate. The articles charged him with improperly appropriating to his own use the sum of $16,881.26 which he had collected in the name of the State from the United States ; with attempts to obtain bribes ; with the receipt of bribes for his official action as official member of certain State boards and in the exercise of his executive powers ; with falsely appropriating to his own use the sum of one thousand dollars for which a warrant had been issued to pay the fees due an attorney for the State ; with unlawfully and corruptly entering into a contract with an insolvent for the comple- tion of the State lunatic asylum, and with willfully and recklessly assenting and becoming a party to a contract for the erection of the State university and agricultural college, at prices greatly in ex- cess of the sums appropriated for the said buildings ; with a false com- munication to the house of representatives concerning the investment of the money collected from the United States which he was charged with having appropriated to his own use ; with unlawfully and willfully advising and consenting to the loaning of the State funds and causing the same to be loaned, improvidently and willfully, without good author- ity of the law and regard to the public interests, upon totally insufficient and inadequate security, and without the concurrent action thereon by the treasurer and auditor of the State, as was required by law ; with appropriating to his own use the sum of $648.43 a balance in the hands of the treasurer of the board of immigration, which was the property of the State ; with unlawfully executing and causing to be delivered to the Sioux City and Pacific Railroad Company a patent or patents for lands 86 Twentieth Session, 1878. Journal 87 journal of tlie Senate of Minne- of the Senate of Minnesota, sitting as sota, sitting as a High Court of Ira- a High Court of Impeachment for the peachment for the Trial of Hon. E. St. Trial of Hon. Sherman Page, Judge of Julien Cox, Judge of the Ninth Judi- Tenth Judicial District, Vol. i. Printed cial District. Printed by Authority, by Authority. Eamaley and Cunning- St. Paul Printing House, O. a. Miller, ham, Saint Paul. 3 volumes. Vol. i, 36 E. 3d St. 1882. 3 volumes, pp. pp. 784 ; vol. ii, pp. 549 ; yol. iii, pp. 389. 1006. ^I"?-] NEBRASKA. 703 of the State ; and with selling certain State lands and appropriating to his own use part of the purchase money. Governor Butler was acquitted by either a majority vote of not guilty or a vote of less than two-thirds of guilty as to all the articles except the first, which charged him with appropriating to his own use $16,881.26 which had been collected for the state of Nebraska from the United States. As to that his defense was an attempt to prove that the money had been paid into the State treasury and afterwards loaned to him upon bonds and mortgages on his own property. The testimony shows a remarkable method of keep- ing the public funds. The State treasurer was a member of a banking firm and at iirst kept the treasury in an old-fashioned fire-proof safe, but afterwards, in pursuance of an act of the legislature, bought a Her- ring burglar-proof safe at a cost of one thousand dollars. In that he kept both the private funds of his firm and the public funds. The public funds were supposed to be kept in separate envelopes ; but a large part of them were mingled with the private funds of the firm and credited upon its books to the fictitious name of John Eix. The official books of the treasury showed no trace of the money which the governor had collected from the United States. The governor claimed, however, that it had been duly paid to the treasurer, credited to the name of John Rix, and subsequently loaned to him. This defense was overruled by the senate, which by a naajority of more than two-thirds found him guilty under the first article of impeachment. The sentence was removal from office. Members of both the political parties voted for conviction.'' In the same year that Governor Butler was impeached, the Nebraska house of representatives voted to impeach John Gillespie, State auditor of Nebraska. The articles charged him with delivering warrants against the State funds without having first received the legal vouchers therefor, and in cases in which the State was not indebted, giving as a specifica- tion the payment to Governor Butler of the State warrants for the fees of an attorney which was the subject of one of the articles of Butler's impeachment ; with unlawfully, corruptly, and in violation of a section of the State constitution, agreeing and consenting to the payment of extra compensation to a contractor for the erection of the State lunatic asylum above the amount stipulated to be paid for the building ; with dis- regarding and setting at naught a law which required him to direct pros- ecutions, in the name of the State, for all possible delinquencies in 88 Impeachment Trial of David But- Job Printing House: 1871. pp. 133. ler, Governor of Nebraska, at Lincoln, Closing Arguments, pp. 88. Trial March, May and June, 1871. Messrs. Proceedings, pp. 65. Senate Proceed- Bell, Hall & Brown, Official Beporters, Ings, pp. 28. See also Nebraska House Omaha. Tribune Steam Book and Journal for 1871-1872, pp. 828. ■704 STATE IMPEACHMENT TRIALS. [APP. relation to the assessment, collection and payment of the revenue, and against all persons who might by any means become possessed of any public moneys or property due or belonging to the State, and fail to pay over or deliver the same, and also to give information in writing to either house of the legislature in regard to any duty of his office, giving as a specification the failure to collect the sum of $16,881.21, which was col- lected and retained by Governor Butler, as charged in the latter's im- peachment ; with unlawfully ordering and approving of certain loans of the school-money at less interest than might have been collected for the use of the same ; with opening one of the sealed bids for the public print- ing, and disclosing to another bidder the estimates of the same, so as to enable him to so alter his bid as to secure the contract ; with being in- fluenced by pecuniary motives to agree in his official capacity to an un- suitable location for the State lunatic asylum ; and with making a false entry in his accounts, stating the receipt of $1082.10, and the payment thereof upon a warrant for trees for the capitol grounds, when in fact no such money was received or paid, but the trees were furnished for the indi- vidual benefit of the respondent. Governor Butler and another officer, so as to make up the deficiency in the proceeds of the sale of certain public lands. This impeachment was never tried, but in the following year, 1872, was withdrawn by the succeeding house of representatives.^^ In 1893, the legislature of Nebraska presented to the supreme court articles against William Leese, who had been formerly attorney-general. They were dismissed upon the ground that no impeachment could be sustained against a man who was not in office.''" In the same year, the legislature presented articles against George Hastings, attorney-gen- eral, John C. Allen, secretary of state, and Augustine R. Humphrey, commissioner of public lands and buildings. They charged misconduct by the respondents when acting as a board of public lands and buildings by the waste and misappropriation to their own use of public funds and negligence in the payment of fraudulent claims for supplies, chiefly in connection with the construction of a cell-house in a penitentiary and the supervision of the maintenance of an insane asylum. It appeared that they had by the advice of the attorney-general used five hundred dollars of an appropriation for the construction of a cell-house in pay- ment of their own expenses upon a junketing trip to visit prisons in other States, and two hundred dollars to pay the expenses of the warden and chaplain of the prison as delegates to the National Prison Congress at 89 House Journal of the General m state of Nebraska u. "William Assembly of the State of Nebraska, Leese, Ex-Attomey-General, 37 Neb for 1871-1872. pp. 828. 92. APP.] KANSAS. 705 Philadelphia. A majority, two of the court, acquitted all the respon- dents for lack of proof of a criminal intent. The chief-justice dissented in a strong opinion. '"^ KANSAS. A painful exposure of the corruption which existed during the civil war was made on the trial of the governor, secretary of state, and auditor of the State of Kansas before the senate on their impeachment by the house of representatives in 1862. The first legislature of the State authorized the issue of bonds to the amount of $150,000 to defray the current expenses. These officers were authorized to negotiate for their sale. The only probable customer at that time, the summer of 1861, was the government of the United States, who were authorized to invest certain sums of money held by it in trust for Indians under different treaties " in safe and profitable stocks." The Kansas secretary of state and auditor employed Robert Stevens, a leading Kansas poli- tician, to negotiate the sale of these bonds. His employment was ad- vised by senator Pomeroy of Kansas, because of his business relations with Caleb B. Smith, secretary of the interior of the United States.'^ The accused secretary of state testified : "I had no definite informa- tion, but owing to the character of those assisting Mr. Stevens, I thought his expenses must be heavy indeed. Any gentleman who will go to Washington on similar business will be satisfied of that fact." ^'^ Stevens first attempted to sell the bonds to the United States through the secretary of the interior, but failed. He then employed to assist him in the negotiation, R. G. Corwin of Dayton, Ohio, who was connected by marriage with the secretary of the interior. Gorwin was then en- gaged as a claim-agent in "Washington before the War and Interior De- partments.'* Corwin succeeded in arranging that the bonds should be bought, provided the entire Kansas delegation at Washington advised the purchase in writing.'^ All of the delegation with one exception were persuaded to recommend the purchase. Senator Lane refused to sign, saying that he expected to be a candidate for a re-election to the Senate before the State legislature ; that he had a majority of one in the State senate, and he feared lest, if Stevens had the money, the latter '1 State of Nebraska v. George H. ernor ; John W. Eobinson, Secretary Hastings, Attorney-General, John C. of State ; George S. Hillyer, Auditor of Allen, Secretary of State, and Augus- State of Kansas. Lawrence : Kansas tine L. Humphrey, Commissioner of State Journal Steam Press, 1862. pp. Public Lands and Buildings, 37 Neb., 484. gg 93 Ibid., p. 386. 92 Proceedings in cases of the Im- «* Ibid., pp. 256, 258, 262. peachment of Charles Kobinson, Gov- '^ ibid., pp. 154, 167. I 706 STATE IMPEACHMENT TEIALS. [APP. would buy up enough votes to defeat him and elect himself.^' One thousand dollars were paid to Lane's private secretary to procure the senator's signature to a letter recommending the purchase, which sig- nature was subsequently procured through the private secretary, by a misrepresentation as to the character of the letter signed." Bonds to the amount of $66,000 were sold to the United States accordingly at eighty-five per centum on their amount. The State only received sixty per cent. The remainder was retained by Stevens. With whom he divided did not appear. At the same time certain State bonds held by the auditor and secretary of state were sold to the government of the United States in the same lot, at the same price, and seventy cents on the dollar was paid to their owners for the same. John W. Robinson, state secretary of state, and George S. Hillyer, state auditor, were convicted on the article of impeachment charging these facts, and sentenced to a removal from ofHce, but not to disquali- fication.^' The governor, Charles Robinson, was acquitted upon the ground that there was no evidence of his complicity in the act.^' Other articles of impeachment were presented against the same three offlcers, charging other offenses connected with the sale of the same bonds, and in the case of the secretary of state, charging him with authorizing a public advertisement in a pretended county newspaper which was not in fact published in such county, in countersigning certain bonds, and in authorizing the withdrawal of a bid for public printing after its acceptance. They were acquitted on all of these. After the conviction of the secretary of state, it was charged that one of the senators had endeavored to obtain a bribe of three thousand dollars in return for his vote for an acquittal. An investigation was ordered. The editor of the Topeka " Tribune " testified that on the day before the final vote he was approached by a member of the senate who told that there were seventeen senators ready to vote to impeach John W. Robinson ; that if the speaker voted in favor of the acquittal, other senators would go with him ; and that if he was paid $5,000 in cash, he would vote " not guilty." The witness had in his pocket about $4,500 in scrip and offered the senator $2,000. Subsequently, the witness talked to one of the respondent's attorneys, saying: "I had offered so much money on my own responsibility, and that afterwards I would expect to have the money returned, if none was handed to me before," On the day when the vote took place, between the morning and afternoon ses- sions, he again met the senator and told him that he might draw on him for $3,000 if he wished for his vote, but the senator replied : " It is too 86 Ibid., pp. 145, 160. ss i^id., pp. 348, 349, 392, 396. " Ibid., pp. 146, 147, 154. m Ibid., pp. 392, 425. *-^P-J KANSAS. 707 late." The senator had also told him that he could get an office under the general government worth $2,000, in case he voted for the conviction of John W. Robinson, which would be obtained through Senator Lane. The witness refused to state the name of the senator with whom he had the conversation. Each of the senators who was present testified that he had no such conversation. Thereupon it was voted, "that it was the opinion of the senate that the charges against the members of this body of corruption are untrue, and that no further action be taken in the premises." The witness was then discharged, without any at- tempt to compel him to disclose the senator's name."" In 1891, Theodosius Botkin, judge of the thirty-second judicial district, was impeached by the house of representatives and tried before the senate of Kansas. The articles charged him with habitual and re- peated drunkenness both on and off the bench ; with the illegal purchase of intoxicating liquors and frequenting " drug-stores " where he knew that liquor was sold in violation of the law ; with blasphemy in a so- called "drug store"; with unlawful imprisonment in a proceeding to punish as a contempt the circulation of a petition for his impeach- ment which made similar charges to those contained in the other articles ; with issuing "a fictitious or fraudulent warrant of arrest," without any sworn complaint such as the law required ; with ordering a court ste- nographer to erase from his notes an exception taken on a trial ; and with being party to a corrupt conspiracy for the robbery of a city treas- ury, wherein, without any statutory authority, he appointed " a receiver of the city treasury, which contained less than f7,769-j^," recom- mended the city council to employ a certain attorney to represent them in the litigation, at midnight signed an order directing the payment by the receiver of $4,000 to the attorney, which the council had voted an hour before to pay him for his services, exhausted the balance left in the treasury by other illegal warrants which he approved, and then dis- charged- the receivership. The trial is interesting from the picture it gives of the State of civilization in Kansas and the condition of drug- stores in a prohibition State. Demurrers were sustained to the articles which charged drunkenness when not engaged in his official duties, the illegal purchase of intoxicating liquor, and the frequenting of places where he knew that liquor was illegally sold.'"^ The acts charged were substantially proved, leaving the intent of the accused the sole question in issue, except as regards the drunkenness and blasphemy, concerning which the evidence was conflicting. The main point on which the counsel for the respondent relied, which was reiterated i»» Ibid., pp. 354-376. i" Swpra, § 93. 708 STATE IMPEACHMENT TEIALS. [APP. throughout the examination of witnesses and the arguments, was that Botkin was a Republican, as were also a majority of the senate, and that the impeachment was voted by the members of the Farmers' Alliance in the lower house. The attorney to whom the judge gave the four thou- sand dollars from the city treasury was not only a witness but the lead- ing counsel for the respondent, and the coarseness of his cross-examina- tions and speeches throughout the case, which were unchecked by the senate, illustrate the character of the court. The respondent was ac- quitted by a majority, and in some cases by a unanimous vote of " not guilty ' ' on the articles charging drunkenness and blasphemy. On the other articles the votes stood eighteen to sixteen and eighteen to seven- teen against him ; and as two-thirds failed to vote for conviction he was finally acquitted."^ IOWA. In 1886, John L. Brown, auditor of the State of Iowa was impeached, tried and acquitted by the State senate. The articles charged a failure to keep proper accounts and to make reports of the fees collected by him from insurance companies, banks and others ; inducement by a bribe of one hundred dollars to omit to direct the attorney-general to institute proceedings for the appointment of a receiver of an insolvent bank ; certifying that that bank was solvent ; drawing and collecting and issuing warrants on the treasurer without vouchers ; refusing to obey an order by the governor suspending him from ofHce ; continuing to exercise the functions of his office after such suspension ; refusing to allow the governor to inspect his books ; allowing to act as his deputy a man whose appointment the governor had refused to approve ; paying such deputy a salary and money beyond his salary by warrants on the State treasury ; and compelling the payment to himself and his deputy of illegal fees by banks and insurance companies which were subject to his suspension. ■'°' MISSOUEI. In Missouri there have been three impeachments. In 1826, Richard S. Thomas, a circuit judge, was impeached, convicted and removed. i»2 Daily Journal of the Senate Trial House ; Clifford C. Bowker, State Prin- of Theodosius Botkin, Judge of the ter, 1891. Volumes i and ii. pp. 1426. 32d Judicial District, before the Senate "s Journal of the Senate of Iowa, of the State of Kansas, on Impeach- sitting as a Court of Impeachment for ment by the Houseof Kepresentatives, the Trial of John L. Brown, Auditor of for Misdemeanors in Office. April, State. Des Moines: Iowa Printing 1891. Published by order of the Company, 1886. pp. 2610. Senate. Topeka, Kansas, Publishing APP.] MISSOURI. 709 He had refused to recognize the rightful clerk of his court under the pretense that the adoption of certain amendments to the State constitu- tion had vacated the oflQce ; had put his own son in the place of the clerk ; had refused to hold court until the clerk had surrendered the papers to his son ; and had thus forced him to resign. This conduct was the subject of two articles of the impeachment. The third article charged him with becoming security on an appeal by his son to his own court from the judgment of a justice of the peace ; ordering of his own motion a •change of venue of the appeal without the request or consent of either party ; and when the court to which the venue bad been changed sent it back for want of jurisdiction, adjourning the trial from term to term of his own motion without the consent of the party who had recovered judgment against his son below. The fourth article charged, that, while a warrant was out on a charge of murder, he agreed with the counsel for the accused that the latter, if he surrendered, should be admitted to bail, and that no testimony should be taken against him ; and that he fulfilled this promise and discharged the accused on bail after his sur- render, declaring that it was not his business to procure the attendance ■of witnesses, although he well knew that several witnesses acquainted with the facts lived within a short distance, and that their attendance •could be procured within a short time. Judge Thomas was convicted ■on all these articles.'"'^ In 1859, the State house of representatives, by a vote of seventy- nine to thirty-four, impeached Albert Jackson, a circuit judge. The mam articles of impeachment charged that he was guilty of insulting, ■oppressive and tyrannical conduct towards parties and counsel; had imposed illegal imprisonment ; had refused the writ of habeas corpus ; had advised parties and counsel out of court in regard to cases which afterwards came before him — in one case advising a young attorney to procure a retainer upon a contingent fee to defend a case on a point which he suggested and afterwards sustained ; that he had refused to give fair bills of exceptions ; that he had improperly interfered with a grand jury to prevent his own indictment for gaming ; and that he had been guilty of :gross partiality on several trials both criminal and civil, in one of which the defendant was convicted of murder, where he had also refused a fair bill of exceptions. One of the managers was James Proctor Knott who afterwards gained celebrity by his speech in Congress on Duluth. His speeches on this trial, although florid, are forcible, logical and well 101 The writer has been able to find Manager Charles H. Hardin, in Jack- Tio report of this trial. The articles son's Impeachment Trial. Public Prin- may be found in the argument of ter, Jefferson City ; pp. 336-337. 710 STATE IMPEACHMENT TRIALS. [APP.. worth reading. The judge defended himself in person. His answer is a model of technical pleading. It even contained this traverse : " Said Jackson does not know that the experience of ages has demonstrated that the writ of habeas corpus is one of the chief bulwarks of the liberty of the people ; joins issue and takes the negative of that proposition." The principal facts alleged in the articles were proved by uncontradicted evidence, leaving the intention of the accused the main matter in doubt. His evidence consisted mostly of laymen on his circuit who had not thought his judicial manners oppressive, contumelious and insulting. His defense was able, but his language throughout the trial showed that his temper unfitted him for a judicial position. A majority, but less than two-thirds, all of whom apparently were Democrats, voted for his conviction on the principal articles. The minority was almost, if not quite entirely, composed of the members of the political party in oppo- sition, to which he apparently belonged ; and they attempted to prevent- the publication by the State of the proceedings."^ In 1872, Philander Lucas, judge of the fifth judicial circuit in Mis- . souri, was impeached and tried before the State senate. The articles charged that he had certified to bills of costs in blank against a county in his circuit, allowing the clerk to fill them in ; that he had certified to fraudulent charges in other bills of costs ; had with a reckless disre- gard of the public interests and for the purpose of assisting a friend, dismissed at the defendant's costs a prosecution for selling liquor with- out a license ; and had connived at and permitted a practice by the- circuit attorney of multiplying indictments against insolvents who were unable to pay the costs, and in permitting and ordering attachments against witnesses whom he knew to be present, for the purpose of multi- plying the attorney's fees. The respondent answered and defended. The articles were withdrawn at the conclusion of the evidence offered in their support.'"" CALIFOENIA. In 1851, Stephen J. Field, afterwards a Justice of the Supreme Court of the United States, and other members of the bar, presented to the, 105 Official Eeport of the Trial of the me Official Report of the Trial of Hon. Albert Jackson, Judge of the Philander Lucas, Judge of the Fifth Fifteenth Judicial Circuit, before the Judicial Circuit, before the Missouri Senate, composing the High Court of State Senate, sitting as a High Court Impeachment of the State of Missouri. of Impeachment, June, 1872. Jeffer- Keported by Thomas J. Henderson. son City: Kegan & Edwards, Public Jefferson City : "W. G. Cheeney, Public Printers, 1872 ; pp. 323. Printer, 1859; pp. 480. APP ] CALIFORNIA. 711 California assembly charges against William R. Turner, judge of the eighth judicial district of that State. The charges arose out of the commitment of Mr. Field for contempt of court to an imprisonment of forty-eight hours accompanied by a fine of five hundred dollars, his disbarment for protesting and taking legal proceedings to set aside this proceeding ; and the similar treatment of two other members of the bar who assisted him in the matter. Mr. Field was released by habeas corpus immediately after his arrest, but Judge Turner had him arrested again, threatened with commitment the judge who granted the writ, and after the attorneys had been restored to the bar by a mandamus from a higher court, attempted to again disbar them. The matter was com- promised by the passage of a law redividing the State into judicial dis- tricts and assigning Judge Turner to another part of the State. He subsequently resigned to avoid an impeachment for habitual drunkenness and other charges.-"" His experience in this matter undoubtedly aided in impressing on the mind of the sufferer from judicial tyranny the public importance of the protection of the rights of the bar which he afterwards established by his own decisions on the bench. ^°* In the same State, in 1857, Henry Bates, the State treasurer, wasim- ■ peached. The articles charged : a conspiracy with another to defraud the State, by which in violation of the statutes he deposited part of the State funds with private bankers, who allowed his confederate the use of the money, and he loaned another part directly to his confederate, who failed to repay the same to the State ; the loss of other funds of the State through negligence without an allegation of a corrupt intent ; the pur- chase by himself and others with his connivance of State scrip and 1"' Proceedings of the Assembly of Wm. E. Turner, District Judge of the State of California. Second Ses- the Eighth Judicial District of Cali- eion, 1851, on the petition of citizens fomia. California, 1851. " Truth is of Tuba and Nevada Counties for the omnipotent, and public justice cer- Impeachment of Wm. E.Turner, Judge tain." Henry Clay. San Francisco: of the Eighth Judicial District of Call- Whitton, Towne & Co., printers, Ex- fornla. Jos. L. Pearson, Printer, 1878. celsior Steam Presses, No. 151 Clay Statement of the Controversy be- Street, three doors below Montgomery, tween Judge William E. Turner, of 1856. the Eighth Judicial District of Cali- People v. Turner, 1 Cal., 143 ; s. c, fomia, and members of the Maryville 1 Cal., 152 ; ^a; parte Field, 1 Cal., 187 ; Bar, and their Eeply to his violent People u. Turner, 1 Cal., 188 ; People i-. Attacks upon them. Second edition. Turner, 1 Cal., 90. with an appendix. i™ See Ex parte Garland, i Wallace, Documents in relation to charges 333; Ex parte Bradley, 7 Wallace, 364; preferred by Stephen J. Field and Bradley v. Fisher, 13 Wallace, 335; others, before the House of Assem- Ex parte Eobinson, 19 Wallace, 506. bly of the State of California, against 712 STATE IMPEACHMENT TRIALS. [APP. warrants with the coin of the State; the substitution of controller's warrants for coin paid him by county treasurers ; connivance at simi- lar substitutions by another oflflcer ; borrowing money on the credit of the State to conceal the deficiency in the treasury ; and a failure to re- deem State bonds a? required by law. The respondent pleaded to the jurisdiction in an answer ; which alleged that his resignation had been accepted by the governor, and that he was no longer in ofHce when the articles were adopted by the assembly, and also that two indictments had been found against him by a grand jury on the charges alleged in the articles. The managers filed a replication, which alleged that the respondent was treasurer of the State at the time of his impeachment, and that if he had been indicted as alleged, the indictments were found after the articles had been presented. To this. Bates filed a plea which claimed that the allegations in his answer which were not denied by the replication were sufficient to show that the court had no jurisdiction and prayed judgment accordingly. The senate overruled the objections to the jurisdiction and ordered a further answer, which the respondent refused to make. He was thereupon convicted by default by a vote of thirty-two to one ; and was sentenced to perpetual disqualification from office in a judgment which recited the fact that he had resigned after his impeachment.'™ In 1862, James H. Hardy, judge of the sixteenth judicial district, was impeached before and convicted by the senate of the State of Cali- fornia. The articles charged him with a number of corrupt decisions for the benefit of his friends, no charge of bribery being made. The principal ones were alleged to have been made for the purpose of de- laying litigation, and thus enabling the defendants to compromise. He was also charged with having advised counsel outside of court as to the course which they should take, and the decisions which he expected to make ; thus in one case misleading a counsel so far as to prevent him from filing an argument against a motion for a new trial which the judge said privately to him would be denied, but afterwards granted. The most serious charge was his action when presiding over the trial of David S. Terry, a former chief-justice of the State, for the murder of senator David C. Broderick in a duel. In that case, through the collu- sion of the district-attorney, a jury was impanelled between nine and ten o'clock in the morning, at which hour the witnesses for the State had been subpoenaed to appear. The witnesses were in a sail-boat and 11" California Senate Journal, 8th ville E. Ingalls, Jr. , Esq. , of the New Sess., 1857, pp. 297-303, 407-410, 424, York bar, who courteously loaned 425, 457, 463. The account of this them to the author, case is taken from the notes of Mel- ^I"?-] CALIFORNIA. 713 were detained by a fog, as was generally known at the place of trial. The case was submitted to the jury in the absence of the witnesses for the State, and a verdict of not guilty allowed before ten o'clock that morning. The witnesses arrived one or two hours afterwards. One of the jurymen had previously sat on another jury on the trial of George Pen Johnston for killing Senator Ferguson in a duel, and had openly de- clared upon the streets that be would never convict a man for killing another in a duel, provided the duel was a fair one. Another juryman, as was well known to the county officers, was under indictment for a murder of which he was subsequently convicted. The ai tides also charged frequent drunkenness upon the bench ; and willful neglect to perform the duties of his office with reasonable diligence. The fifteenth article charged a number of instances of seditious and treasonable lan- guage used oil the bench, in most cases in public bar-rooms. It appeared upon the trial that Judge Hardy had previously been tried for murder but acquitted. An attempt was made by one wit- ness for the respondent to kill a witness for the State during the trial. One witness appeared in court with a loaded pistol and a dirk-knife, which latter weapon he was asked but refused to exhibit. The evidence was conflicting as to all of the charges except those relating to the trial of Terry, and the seditious language. One of the witnesses for the State testified as regards the charge of drunkenness that he had fre- quently seen the judge intoxicated, but not in court, nor during the terms of his courts. Most of the delays charged against him were alleged to have been caused by his desire to keep on good terms with both sides until after election. The respondent was acquitted on all the articles except those charging treasonable language. He had in his favor a large majority and in some cases a unanimity upon all the others except those relating to the trial of Judge Terry, and on that charge he was acquitted ; the vote standing eighteen for him and eighteen against him. He was convicted by a two-thirds vote of twenty-four to twelve on the fifteenth article of impeachment, which charged him with profane language out of court, and the expression of sympathy with secession, Jefferson Davis and the Confederacy. The sentence was simply removal from office. A proposition to limit the punishment to suspension for six months was voted down.'" 110 Official Eeport of the Proceed- California, sitting as a High Court of ings, Testimony and Arguments, in Impeachment. Sumner &. Cutter OfS- the Trial of James H. Hardy, District cial Beporters. Sacramento : Benj. P. Judge of the Sixteenth Judicial Dis- Anthony, State Printer, 1862. pp. trict, before the Senate of the State of 712. '! B ' ; r