\ THE UNWRITTEN CONSTITUTION OF THE UNITED STATES A PHILOSOPHICAL INQUIRY INTO THE FUNDAMENTALS OF AMERICAN CON- STITUTIONAL LAW BY CHRISTOPHER G. TIEpEMAN, A.M., LL.B. PROFESSOR OF LAW IN THE UNIVERSITY OF MISSOURI AUTHOR OF TREATISES ON " THK LIMITATIONS OF POLICE POWER," 4i THE LAW OP REAL PROPERTY," AND " LAW OF COMMERCIAL PAPER " G. P. PUTNAM'S SONS NEW YORK LONDON aj WEST TWENTY-THIRD ST. 27 KING WILLIAM ST., STRAND ftfce flnukttbotkcr |)xtss 1890 i COPYRIGHT, 1890 BY CHRISTOPHER G. TIEDEMAN Ube Tknfcftcrbocficr press, new r?orft Electrotyped, Printed, and Bound by G. P. Putnam's Sons CONTENTS CHAP. I. ORIGIN AND DEVELOPMENT OF MUNI- CIPAL LAW IN GENERAL .... I CHAP. II. THE ORIGIN AND DEVELOPMENT OF CONSTITUTIONAL LAW l6 CHAP. III. THE ELECTORAL COLLEGE ... 46 CHAP. IV. THE RE-ELIGIBILITY OF THE PRESI- DENT . . . . . . . -SI CHAP. V. THE INVIOLABILITY OF CORPORATE CHARTERS AND CHARTER RIGHTS . . 54 CHAP. VI. THE DOCTRINE OF NATURAL RIGHTS IN AMERICAN CONSTITUTIONAL LAW . 67 CHAP. VII. THE CONSTITUTION IN THE WAR OF SECESSION 83 CHAP. VIII. CITIZENSHIP IN THE UNITED STATES 91 CHAP. IX. STATE SOVEREIGNTY AND RIGHT OF SECESSION 1 10 CHAP. X. THE UNITED STATES GOVERNMENT ONE OF ENUMERATED POWERS . . ."129 x^X ^^ CHAP. XI. CARDINAL RULE OF INTERPRETATION AND CONSTRUCTION OF WRITTEN CONSTITU- TIONS 145 CHAP. XII. THE REAL VALUE OF WRITTEN CON- STITUTIONS 155 iii THE UNWRITTEN CONSTITUTION OF THE UNITED STATES. CHAPTER I. ORIGIN AND DEVELOPMENT OF MUNICIPAL LAW IN GENERAL. BLACKSTONE'S definition of law has been gen- erally accepted as in the main reliable, not only popularly, but also professionally. Indeed, the sci- entific element of the definition, viz. : that municipal law is " a rule of conduct prescribed by the supreme power of the state" has been so earnestly accentuated and elaborated by the master-minds who have truly dominated legal thought in England and in this country for the past half century I refer, of course, to Bentham and Austin, that the professional, as well as the popular, mind has been led into the adoption, as an axiomatic truth, of a most serious error concerning the origin and development of mu- nicipal law. 2 THE UNWRITTEN CONSTITUTION. Except in the matter of form, the statement that municipal law is " prescribed by the supreme power of the state " is false and misleading, unless by the " supreme power of the state " is meant the aggre- gation of all the social forces, both material and spiritual, which go to make up our civilization. But the meaning commonly attached to the words " the supreme power of the state " is that of the supreme power in the government, as distinguished from the people who compose the body politic. Austin and his followers admit that the law-making power is sub- ject to moral and physical restraints, and that these restraints co-operate very largely in forming and modi- fying the substantive law ; but since no rule can be called a lav, which is not enforced by a sanction, prescribed by the law-making power, the moral in- fluences at work upon society cannot be said to create law. And even where a rule of law is for the first time enunciated by an English or American court, Austin claims that it first became a law when the court announced its decision. I do not suppose Austin intended to assert that the de- cision of the court was purely arbitrary ; that it only reflected the sentiments of the occupants of the judicial bench. I cannot believe that he was uncon- scious of the natural sequential development of the law, operated upon by all the social forces, out of which civilization is in general evolved. But the MUNICIPAL LAW IN GENERAL. 3 reader of his work on jurisprudence will have no very clear conception of this scientific development if he has not obtained the idea elsewhere. The rigid logic of Austin is inclined to fasten upon the reader the more or less popular superstition concerning the omnipotence of the law-making power. . Undoubtedly there is no living law without a * sanction or penalty, and there must be somewhere some one who has the power to inflict the penalty. The law is intended to force upon a rebellious mi- nority the observance of those rules of conduct the infractions of which will inflict injury upon others. Physical force is of course needed. Hence the blind- folded Goddess of Justice not only holds up in her left hand the scales with which she can impartially mete out justice between parties litigant, but she also bears in her strong right hand the sword, which she must wield with effect, in order to enforce her de- 1 crees. If a decree of the court is to be enforced, the sheriff, who is the local representative of the execu- tive department of the government, summons his posse comitatus, i.e., he calls upon the good and law- abiding citizens of the county to support him, and none can lawfully refuse to obey the call. But granting that to make a rule of conduct a laW| a penalty must be attached and imposed for its in-' fraction, it does not necessarily follow that that penalty must be enforced by an organized govern- 4 THE UNWRITTEN CONSTITUTION. ment, or that its enforcement by such a government essentially changes the character of the rule. When the English colonists first made their settlement in this country, we are told they brought with them [the English common-law, and enforced it among themselves, so far as that law was compatible with the surrounding circumstances. If one of the colo- nists had made an attack upon the person or prop- erty of another, before there had been any organized government, armed with the power to enforce the law, would the Austin school of jurists claim that these colonists were without law, and hence this reprehensible deed was not illegal ? Would they claim that there was no law on the borders of Ameri- can civilization, where the only government is the vigilance committee, and where the only court of justice is presided over by Judge Lynch ? If a man is murdered or a horse stolen in such a community, and the offender is captured by the vigilance com- mittee, tried by Judge Lynch, and punished in accordance with the custom of the country, he has suffered the penalty of the law, as much as the criminal in an orderly, more civilized community, who is tried and condemned by a regularly organized court, and punished by the ordinary administrative officers of the government. The only difference between the two cases is the degree of development in the administration of the law. Lynch-law, in a MUNICIPAL LAW IN GENERAL. 5 community not possessed of a properly organized government, is as much law as the enactment of an American legislature or the acts of Parliament. Nor is there any greater difference in the character of the forces which in their operations upon the social life command the formulation and enforcement of the rules of conduct in the two cases. In both cases the average common-sense of propriety, which is uni- formly obeyed by the vast majority of a people, constitutes in the main the standard after which rules of law are modelled. The morality commonly and uniformly practised by the masses lends its character to the rule of law when it is first enunci- ated. And even when the rule is first promulgated, its ethical character is much lower than the standard of morality set up by ethical teachers ; for only that code of morality can be enforced against delinquents which the people generally obey. For if it were attempted to enforce a higher standard, for example, to compel every one to do unto others as he would have them do unto him, the sanction would be want- ing, for no penalty is effective unless it is backed by the posse comitatus. Municipal law is not intended to control the ac-/ tions of the masses. The great majority of a people/ are a law unto themselves. And wherever this fun- damental thought is lost sight of, legislation results in nothing but the production of dead letters, still- 6 THE UNWRITTEN CONSTITUTION. born laws, that never did and never could have become a living rule of conduct. For the life of a rule of law is derived from its habitual and spontaneous observance by the mass of the people. It is only when its enactment is called for by a popular sense of necessity, in order to compel a rebellious minority to conform to the moral habits and customs of the people, that a rule of conduct can become a living law. Although a moment's reflection is sufficient to satisfy one of the correctness of this position, it is surprising what false notions of legislation do pre- vail, even among scientific men. The tenets of a large and influential school of economists are based, confessedly or otherwise, upon the notion that the living power of the law is from an extra-human source ; for they are preaching the doctrine daily that the ills of life, which they admit to be the con- sequences of sin and ignorance, or, in other words, of the frailties of human nature, may be cured or, at least, lessened by legislation, even where the evil is not the result of a trespass. And the call is often made for fresh legislation, as a means of raising the standard of morality of the people. The. stream can never rise higher than its source, nor can it be ex- pected that legal rules, which are but a reflection of the moral habits of a people, can effect their moral elevation ; least of all, the moral elevation of a people living under a government " of the people, for the MUNICIPAL LA W IN GENERAL. ^ people, and by the people." One may just as well expect by taking thought to add one cubit unto his stature, as by legislative declaration to add one cubit to the moral stature of the people. The legal rule is, therefore, fashioned after the prevalent sense of right. The Germans call it Rechts- gefuehl. It is not so difficult for the novice to admit this doctrine in its application to judicial legislation, or judge-made law, as Bentham contemptuously calls it ; but it is more difficult to believe that the legislative will is bound down by this prevalent sense of right to a fixed line of conduct, from which it cannot success- fully swerve. I do not mean to say that the legisla- ture cannot make an enactment, which does not reflect the prevalent sense of right ; for there are too many deplorable instances of such misuse of power, to admit of denial. 1 But I do assert emphatically that the legislature cannot completely enslave the popular will by an enactment not endorsed by the prevalent sense of right. Popular opinion, for pru- dential reasons, requires of the individual obedience to the written .word, until the power which enacted 1 The expression ' ' deplorable misuse of power " is used in this connection, because the writer is convinced that the multiplication of laws which cannot be enforced tends to lessen the popular reverence or respect for law, and habituates the people to the repeated viola- tion, not only of those laws which do not reflect the prevalent sense of right, but also those which are so sanctioned. 8 THE UNWRITTEN CONSTITUTION. it can be induced or forced to repeal it. To this ex- tent can the legislative will, as a factor in the making of the law, influence its development in opposition ' to the popular desire. But when the law is brought before the courts for enforcement, its practical operation will be made by interpretation and con- struction to conform to the prevalent sense of right, as far as this is possible without nullifying the letter of the law. It frequently happens that the effect of the statute will in this manner be completely changed, and will, as it is enforced, produce an en- tirely different effect from what had been intended. A most notable example is the English Statute of Uses. This statute was enacted for the purpose of abolishing uses entirely, and preventing the creation of any equitable interest in lands, separate and apart from the legal title. But when this statute was brought before the courts, it met with the most de- termined opposition from the bench and bar. They reflected the prevalent sense of right in the middle English classes, and gave the statute a strict techni- cal construction, thus limiting its operation to such an extent that, instead of being abolished by the statute, the law of uses became all the more firmly settled. Upon this distorting, technical construction of the English Statute of Uses rests the entire law of modern trusts, except so far as there have been modifications by American statutes. Instances of this kind may be multipled indefinitely. MUNICIPAL LAW IN GENERAL. 9 It may, therefore, be laid down as a general'propo- sition that a legal rule is the product of social forces, / reflecting the prevalent sense of right. It is another question, what is the relative influence of individuals and of classes in moulding this popular sense of right. The state of the public mind may be such that it maybe sair of that people, quod principi placuit habet legis vigo-em; and even in the land of democratic rule and of universal suffrage, only a few persons really mould and fashion public opinion. The great body of private law is, by common consent, usually left to be developed by the legal profession. Still, in every country, it matters not how or by whom it is created, whatever is the prevalent sense of right is the norm by which legal rules are formulated. But the popular sense of right does not remain/ stationary. In its growth and evolution it follows an easily recognized law of development. The popu- lar sense of right rises with the increasing enlighten- ment of the ethical teachers. Although the legal rule reflects the popular sense of right, prevalent when it was formulated, it may not, and usually does not, conform altogether to the popular sense of right in its later stages of development, and very frequently there is so great a variance between them as to cause serious popular dissatisfaction. Philosophical enthusiasts sometimes claim that this variance is due to the imperfect formulation of the legal rule, and that but for this imperfect reflection io THE UNWRITTEN CONSTITUTION. of the prevalent sense of right by the formulated rule legal rules would never conflict with public sentiment in any stage of its development. Be this as it may, there is such a variance which increases with the ethical and spiritual development of the people. A very good example of this variance between the I existing rule of law and the popular sense of right is to be found in the law of fraud. The existing rules of law declare that a transaction is not tainted by fraud if one of the parties is induced to enter into it by a mistaken appreciation of the material facts, sim- ply because the other party knew of the first party's misapprehension and failed to give him the desired information. For example, if A. is offering to buy an article of value from B., and believing that the article is worth one thousand dollars, being led to that conclusion by the belief that the article has merits which it does not possess, when in fact it is not worth more than five hundred dollars ; if B. has said or done nothing to produce that wrong im- pression, he can take the excessive price, without be- ing guilty of legal fraud, although he knows at the time that the value of the subject-matter of the sale has been greatly over-estimated by A. When that rule was first formulated, I have no doubt that trades- men and others habitually practised the rule of tak- ing advantage of the ignorance pf others, whenever they had done nothing to create the ignorance or MUNICIPAL LAW IN GENERAL. n to prevent the acquisition of the necessary knowl- edge ; and it is, without doubt, still the general rule of conduct in the more subtle business transactions of the day. But in the balder and more transpa- rent cases of the kind described, the influence of the teaching of a higher morality is being felt so as to prevent a very large number, if not a majority, of the people from practising upon their weaker breth- ren what is certainly a moral, if not a legal, fraud. This deviation of a large part of the people from the directions of the existing rule of law is, however, not yet strong enough to require any material modifica- tion of it ; but it is sufficiently strong to involve in doubt the correctness of the enunciated rule. The people do not yet spontaneously and habitually fol- low the higher rule. Whenever this radical change in the habits of the people does come about, then, and not till then, may we expect the legal rule to con- form to the better teaching of morality. So far nothing has been said to accentuate the fact that this change in the prevalent sense of right is not the quiet, smooth, uneventful development, which is found to prevail in the growth of a language, and which is claimed by the jurists of the Savigny-Puchta school to prevail in the growth of a system of juris- prudence. On the contrary, the history of the law demon- strates conclusively, by a host of examples, that 12 THE UNWRITTEN CONSTITUTION. every material modification of an existing principle of law, as well as every new principle of law, is never firmly fixed in the jurisprudence of a country except after a vigorous contest between opposing forces. 1 As soon as a legal rule has been formulated, private interests begin to be built up in reliance upon the application of this formulated rule to all future simi- lar cases. Unless there were some fixity and certainty in the rules of law, there could be no material devel- opment, no inducement to individual activity. These private interests, thus developed, are concerned in the strict enforcement of the formulated rule, and re- sist all changes in word or in spirit. In obedience to this popular desire for fixity and certainty, the let- ter of the law, as formulated by the courts, receives by popular agreement the same binding authority, as is freely conceded to the statute. The rule of stare decisis prevents subsequent courts from completely repealing the rule of law previously formulated, even though, on account of a change in popular senti- ment, the law should cease to reflect the prevalent sense of right. If by means of fictional construction 1 " Das Ziel des Rechts ist der Friede, das Mittel dazu der Kampf. . . . Das Leben des Rechts ist Kampf, ein Kampf der Volker der Staatgewalt der Stande der Individuen. Alles Recht in der Welt ist erstritten worden, jeder Rechtssatz, der da gilt, hat erst denen, die sich ihm widersetzten, abgerungen werden mussen, und jedes Recht, das Recht eines Volkes, wie das eines Einzelnen, setzt die stetige Bereitschaft zu seiner Behauptung voraus." v. Ihering's Kampf urn's Recht, I. MUNICIPAL LAW IN GENERAL. 13 the letter of the law cannot be made to conform to the existing sense of right, and the variance is so great as to cause great discomfort or arouse the dis- approbation of the people, the only remedy is a change by legislative enactment. But this rule of stare decisis is absolutely binding, only as it also re- flects the prevalent sense of right. Cases have fre- quently occurred when the variance between the law and the prevalent sense of right was so distressing that the courts have been justified by public senti- ment in abrogating an established rule. In such cases the judges have sought refuge under the fiction that the prior decision was an erroneous statement of the pre-existing law; and hence in every law library are to be found collections of " overruled cases." But it not unfrequently happens that even this elastic fiction will not furnish any actual justifi- cation for the abrogation of the existing rule of law ; / and yet it is done in compliance with the demand of private interest or the popular sense of justice. Still the case must be an urgent one, in order to meet with popular approval. As a general rule, public senti- ment requires a rigid adherence to the rule " stare decisis." It must be further observed, that not every moral rule commonly practised by the mass of people, be- comes a legal rule, obedience to which is enforced by a legal sanction. Unless the violation of the i 4 THE UNWRITTEN CONSTITUTION. moral rule involves some injury to the public or to other persons, there is never any public demand for its enforcement by the imposition of a legal pen- alty. Those wrongful, immoral acts, which are prop- erly called crimes or trespasses upon the interests of / others, are generally regulated by law, but, except so far as they likewise have the character of trespasses, vices are left to the correction of the moral influence of public opinion. The world is moved and controlled by two fundamentally different forces, moral suasion and physical force. While different, they need not be antagonistic, and only are so when the physical force is employed to attain some unrighteous end. These forces are supplementary to each other, and one can- not take the place of the other. The effect of moral suasion is to build up or reform the character of the person or persons intended to be influenced. Physi- cal force can only be used successfully to suppress the desire and intention to do injury to others. You cannot expect to make a virtuous man out of a crimi- nal by sending him to the penitentiary or to the whipping-post. The only end attained by such I measures is the prevention of future crime by creat- ing the fear of punishment. Vice therefore cannot^ be successfully controlled by any measures of force ; the correction must be left to the moral suasion of the church, the home, and the social circle. But j when the peace and good order of society are threat- MUNICIPAL LA W IN GENERAL. 15 ened by attacks upon the personal security, personal liberty, and property of others there is nothing to do but to repel force by force. Of course this repressive force can, in an orderly community, be employed only by the government, except in the few cases of emergency where the right of self-defence is conceded to the individual. I believe I have succeeded in showing that the same social forces which create and develop the ethics of a nation create and develop its law ; that the substantive law is essentially nothing more than the moral rules, commonly and habitually obeyed by the masses, whose enforcement by the courts is re- quired for the public good, while ethics are the rules of morality set forth by our moral teachers, as their highest conceptions of moral development. The morality of the law is commonly and habitually prac- tised by the people ; the morality of ethics, if this expression be allowed me, is an idealistic conception, something to be striven for, and more and more ap- proximated, but perhaps never to be fully realized before the days of the millennium. CHAPTER II. THE ORIGIN AND DEVELOPMENT OF CONSTITU- TIONAL LAW. THE constitution of a state may be described as the definition of the order and structure of the body politic, while constitutional law consists of those fundamental principles and rules in accord- ance with which the government is constructed and its orderly administration is conducted. Constitu- tional law may be described as the anatomy and physiology of the body politic. If these definitions be accepted as true, the con- clusion is irresistible that the fundamental principles which form the constitution of a state cannot be created by any governmental or popular edict ; they are necessarily found imbedded in the national char- acter and are developed in accordance with the national growth. This doctrine is admitted in its application to the so-called unwritten constitutions, like that of England, whose changes are effected by ordinary parliamentary action, and which cannot be found in any one written instrument, but whose prin- 16 CONSTITUTIONAL LAW. 17 ciples are to be found scattered along the pathway of the nation's history, and serving more or less as land- marks to indicate its political growth. The English Constitution is to be found in the Magna Chart a, the Petition of Right, the Habeas Corpus act, and the Bill of Rights. It is plain to the most superficial observer that the English Constitution was not the conscious and voluntary creation of the English peo- ple ; that it was an evolution from the simple politi- cal principles and formulae of the Teutonic race, finding its beginning in the tribal government of the German barbarians, so graphically described by Taci- tus. But when, the so-called written constitutions of America and Europe, which are promulgated by the supreme power of the respective countries in the form of a single instrument, and which become operative from the time of their publication, come under consideration, the impulse of all, and the con- viction of the many, ascribe to them a very different origin. Even one of the most distinguished states- men, if not the most distinguished statesman, of modern times, Mr. Gladstone, falls into the grave error of claiming for these two kinds of constitutions a different origin and a different rule of develop- ment, when he says that "just as the British Consti- tution is the most subtle organism which has pro ceeded from progressive history, so the Americar Constitution is the most wonderful work ever struck i8 THE UNWRITTEN CONSTITUTION. off at a given time by the brain and purpose of man." It is very true that the attempts to create constitutions off-hand, and to establish them over a people to whom the fundamental principles of the proposed constitutions are an unknown tongue, have been frequent ; but it will be impossible to point out a single instance where such a constitution became a permanent and living rule of conduct. Constitutions \ are effective only so far as their principles have their \ roots imbedded in the national character, and conse- quently constitute a faithful reflection of the na- tional will. The Japanese nation has lately adopted a written constitution, after a study of the various constitutional governments of Europe and America ; very many principles of the constitutions of the Ger- - man and English empires, as well as of the American Constitution, have been incorporated into it. But notwithstanding the wonderful adaptiveness of the Japanese character to political and economic innova- tions, it remains to be seen how much of their new constitution will prove effective, and how much will become inoperative. So far as the principles of their constitution are an outcome of the existing Japanese civilization, and consequently strike a responsive chord in the national heart, will the constitution prove a permanent and living rule of conduct. It is, of course, to be remembered that the Japanese rever- ence for the authority of the Mikado, and the long- CONSTITUTIONAL LAW. 19 established national habit of unquestioning obedience to the imperial commands, will go far towards stifling popular discontent, or dissipating any want of har- mony with the principles and rules of the new constitution, which many will consider and receive as the commands of the august Mikado. But as soon as the people become conscious of their own power, and their reverence for imperial decrees be- comes lessened by a more intimate acquaintance with the principles of self-government and democratic rule, the untrammelled political sentiment of the nation will mould the existing constitution into harmonious correspondence, or demand its complete abolition or revision. History furnishes numerous examples of fruitless attempts to impose constitutions upon people whose principles are not in harmony with the popular po- litical sentiment. ^ Locke prepared a written consti- tution for the Carolinas, whose principles were not in harmony with the popular instinct ;3Napoleon Bona- parte prepared paper constitutions for the nations whom he conquered, and unhappy France, refusing to believe that " constitutions are not made, they grow," has had one constitution after another, in her effort to secure an orderly and permanent establishment for a republican government. And it is not difficult to comprehend that the failure or success of a form of constitution and government in the experience of one 20 THE UNWRITTEN CONSTITUTION. people does not indicate any inherent and universal demerits or excellences, or assure a similar experi- ence if they are adopted by some other people. Englishmen and Americans are so infatuated with the superior qualities of their constitutions that in their canonization of them they are led to believe hat their principles are of universal application, and are surprised if a foreigner criticises them from the standpoint of foreign needs and experience. The English and American constitutions work well, and challenge the admiration of political students, not because of their inherent and abstract excellences for it would be no arduous or insuperable task to point out several glaring defects, 1 but because they are in complete correspondence with the political sen- timent of the respective nations, and are themselves the natural products of Anglo-American civiliza- tion. It is not so much what is found in the written constitution, as the conservative, law-abiding, and yet liberty-loving character of the Anglo-Saxon, which guarantees a permanent free government to England and to the United States of America. What gives color to the notion that the American constitutions, both State and Federal, are the volun- tary creation of man, is the fact that they are written (so-called), and that these writings have been formu- lated, enacted, and promulgated by representative conventions. This opinion has been so prevalent, 1 See many passages in Bryce's "American Commonwealths." CONSTITUTIONAL L4W. 21 that the national habit is to look upon the members I of the convention of 1787 as demigods, giant heroes, / far surpassing the foremost men of to-day, while the Constitution itself has been placed upon a pedestal and worshipped as a popular idol. It is very far from my purpose to deny to the heroes of the Revolution their just meed of praise, or to subject the Federal Constitution to any hostile or carping criticism. It is, without doubt, the best political constitution that the world has ever seen, and some of its fundamen- tal principles are worthy of universal adoption. But by making a popular idol of it, we are apt to lose the very benefits which its excellences insure. It is the complete harmony of its principles with the political evolution of the nation, which justly chal- lenges our admiration, and not the political acumen of the convention which promulgated it. Instead, therefore, of being the voluntary creation of the American people of the eighteenth century, the Fed- eral and State constitutions of the United States are but natural sequential developments of the British Constitution, modified as to detail and as to a few fundamental principles by the new environment. This claim is easily substantiated by the most super- ficial comparison of the British and American con- stitutions. Without making minute reference to the close similarity of the town and county organizations un- der these constitutions, the lineal descent of the 22 THE UNWRITTEN CONSTITUTION. American constitutional law from the British finds proof in the fact that in both nations the attachment to the principles of local government challenges the attention and admiration of the critic. Under both systems of constitutional law we find an unvarying de- termination to confine the exercise of governmental power to the local authorities in every thing affect- ing only the local interests ; and if there is any mate- rial difference in respect to the scope of local powers, it is to be found to consist of a greater localization of power under the British Constitution, in this, that the taxation for local purposes is in Great Britain invariably within the control of the county, while in the United States the taxes for the same purposes, outside of corporate towns and cities, although ex- pended in the county in which they are collected, are imposed by the legislature, -Unless the power of taxa- tion is expressly conferred upon the local authorities. 1 1 " From time immemorial the counties, parishes, towns, and terri- torial subdivisions of the country have been allowed in England, and, indeed, required to lay rates on themselves for local purposes. . . . From the foundation of our government, colonial and republican, the necessary sums for local purposes have been raised by the people or authorities at home. Court-houses, prisons, bridges, poorhouses, and the like, are thus built and kept up, and the expenses of maintaining the poor, and of prosecutions and jurors, are thus defrayed, and of late (in North Carolina) a portion of the common school fund and a provision for the indigent insane are thus raised, while the highways are altogether constructed and repaired by local labor, distributed under the orders of the county magistrates." Ruffin, J., in Caldwell v. Justices, etc., 4 Jones (N. C.), Eq., 323. CONSTITUTIONAL LAW. 23 While the spirit of local government is so far obeyed, in the matter of taxation for local purposes, that one county or other corporate district cannot be taxed for the local purposes of another county or district, and the money collected on a local tax must be expended in the same county or district, yet in the absence of express legislative authority, the American constitutional law denies to such local authorities the power to impose the tax. 1 But with this exception which is accountable only on the theory advanced by Mr. Taylor, 3 that this doctrine of local government was lost sight of in the general prevalence and application of the political notion that all legislative power was limited to an express grant of powers, except the power of the State Gen- eral Assembly it is manifest that local government in the United States is a reproduction of the local government of Great Britain. And there has been so little change in the character and powers of the local government officers, that one can obtain a very 1 Cooley's Const. Lim. (230), 283 (488), 605 ; Litchfield v. Vernon, 41 N. Y., 132 ; Mobile & S. H. R. Co., v. Kennerly, 74 Ala., 574; Booth -v. Woodbury, 32 Conn., 118 ; Speer v. School Dist., 50 Pa. St. , 150. And the levy for local purposes may be ordered by the legis- lature, not only without the consent, but against the wishes, of the people concerned. Cheaney v. Hooser, 9 B. Mon., 330; Slack v. Maysville, etc., R. R. Co., 1-36. Mon., I ; Cypress Pond Draining Co. v. Hooper, 2 Met. (Ky.), 350. * "Origin and Growth of the English Constitution," by Hannis Taylor, p. 43. 24 THE UNWRITTEN CONSTITUTION. reliable account of the powers and duties of the American sheriff, coroner, constable, justice of the peace, etc., by reading Mr. Blackstone's chapter on inferior administrative officers. I The fundamental division of governmental powers 'into executive, legislative, and judicial, and their ex- ercise by separate and independent departments of the government, form a striking characteristic of both the English and American constitutions. Even be- fore they had emerged from the colonial state, the Americans had adopted this doctrine, and divided their local governments into executive, legislative, and judicial departments, conceding to each depart- ment the powers exercised by the corresponding de- partment of the English government. The executive, for many reasons other than the existence of an anti- monarchical spirit, could only obtain the essential powers of the English executive, without its form and tenure of office. But the legislature was fashioned in close imitation of Parliament, with its two co- ordinate chambers, with the single variation that in the upper house the elective principle was substituted for the hereditary principle ; while the judiciary not only exercised the same powers as the English judi- ciary, but administered justice under the same forms of procedure, and in courts established on the English itinerant system, viz. : the holding of court in each county by a judge, to whom was assigned CONSTITUTIONAL LAW. 25 a particular circuit, composed of one or more counties. When the present Federal Constitution was adop- ted, the same salient features were given to the Federal Government, so that one is justified in saying, that a detailed review of the powers of the various depart- ments of the government both Federal and State, forces one to the conclusion that the American consti- tutions are, in the main, an evolutionary development of the British Constitution 1 ; and a closer study of) the two systems reveals the fact that every principle,/ brought into play by the American constitutions/ that has ensured, and proved effectual in the attain- ment of the ends aimed at, was either of English origin, or was the direct product of the social forces then at play in American life. Nor is it surprising that the American constitutions should be fashioned in imitation of the British Con- stitution. Not only were the men who led and formed public opinion in the colonies thoroughly ac- quainted with English constitutional law, many of them having been born or educated in the United 1 " When all of these elements of likeness are considered, who can fail to perceive that the typical English state in America is, in a con- stitutional sense, simply the English kingdom transferred to a new theatre, where it has entered upon a wider destiny, with its political horizon unclouded by the waning shadows of nobility, feudality, and kingship." Taylor's "Origin and Growth of the English Constitu- tion," p. 48. 26 THE UNWRITTEN CONSTITUTION. Kingdom, 1 but the universal political sentiment, under the influence of Montesquieu, also pronounced the British Constitution, if not absolutely perfect, at least the best the world ever knew. 2 Blackstone's Commentaries and Montesquieu's " Esprit des Lois " were the two books which the students of political science of that day consulted in the handling of social problems. The American constitutions could not, 1 " The Virginia delegation (to the constitutional convention of 1787) was simply a brilliant group of English country gentlemen who had been reared on the right side of the Atlantic. Alexander Hamilton and Robert Morris were born English subjects ; the father of Franklin was an English emigrant from Northamptonshire ; Charles Cotes- worth Pinckney had been educated at Oxford and the Middle Temple ; Rutledge had studied law at the Temple ; and James Wilson, the most far-sighted man perhaps in the whole convention, was born near St. Andrews, in Scotland. As to political training, they had all been reared under the English system of local self-government which had grown up alongside of the English customary law in the several States which they represented. These States they had helped to transform from English provinces into independent commonwealths whose con- stitutions were substantial reproductions of that of the English king- dom. In fine, the only practical conception of the State which they possessed was that embodied in the constitution of the old land, modi- fied as it had been in the new by the abolition of nobility, feudality, and kingship." Taylor's " Origin and Growth of the English Consti- tution," p. 62. 2 ' ' The British Constitution was to Montesquieu what Homer had been to the didactic writers on epic poetry. As the latter have con- sidered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged ; so this great political critic ap- pears to have viewed the Constitution of England as the standard, or, to use his own expression, as the mirror, of political liberty." Feder- alist, No. xlvii, p. 300. CONSTITUTIONAL LAW. 27 therefore, be any thing else but adaptations of the British Constitution. In the formation of the Federal Constitution other forces were at work, which compelled some slight and some radical departures from the English forms. In the struggles of the colonies against the unjust encroachments of the mother-country on their right of self-government, they had united in congresses called for the consideration of their common welfare ; but until the actual outbreak of hostilities, the Con- gress had not attempted the assertion or exercise of any superior or superintending control of the colo- nies. All the actions of the congresses were recom- mendatory in form and fact. But with the publication of the Declaration of Independence, Congress did assume many of the powers of a superior government, especially the general conduct of the war with Eng- land and of intercourse with the foreign powers. The government, thus established, was of course revolutionary, and remained so until the Articles of Confederation were adopted by the States and put into operation. The fact that there had been no legal union of the colonies, except through their common subjection to England, coupled with the dread and hatred of all external or superior govern- ments, which had been engendered by England's tyrannical exercise of her power, had accustomed the popular mind to the thought that each State was 28 THE UNWRITTEN CONSTITUTION. supreme, and that their liberty depended upon the retention of this state supremacy, combining with each other in the capacity of sovereign states, only as far as this was necessary for the common defence or promotive of the general welfare. The educated men of that day were classical scholars, and were acquainted with the previous attempts made to establish federal government; but, according to the knowledge then had of these attempts, all of them had resulted in the establish- ment of nothing more than a league, while the several members of the league retained their supreme powers. Under these circumstances it was but natu- ral that their ignorance of the great possibilities of federal government should combine, with their dread of foreign or external governments, to create a league, instead of a centralized state. Hence the Articles of Confederation contained very meagre grants of powers to the general government ; and in no instance was the general government permitted to exercise any control over the individual citizen, every decree of Congress being a requisition upon the States, which Congress had not the power to enforce, and which the States complied with or ignored, as they pleased. A government, so weak that it did not even com- mand the respect of the people, much less their obedience, could not last long. Every thoughtful CONSTITUTIONAL LAW. 29 man of the day was impressed with the gravity of the situation, and looked forward to the future with the most anxious forebodings. Internal dissen- sions and local prejudices, intense love of local government, and an implacable hatred of any su- perior power, co-operated to make anarchy appar- ently inevitable, and justify the claim "that the most critical period of the country's history embraced the time between 1783 and the adoption of the Constitution in I/88." 1 The forces of disintegra- tion were so strong that any more perfect union was despaired of. It was only by a gradual and diplomatic approach to the end in view that the adoption of the present Constitution was secured. The first step taken was the cession to the general government of the lands in the limitless and un- explored West, to be held and administered as a common fund for the benefit of all the States. From the necessity of the case, the general govern- ment thus acquired a dignity and respectability of character which it did not possess before, and the necessary assumption of supreme power over this vast territory, however small the practical exercise of authority was, accustomed the people somewhat to 1 Trescot's ' ' Diplomatic History of the Administrations of Wash- ington and Adams," p. 9. See also, to the same effect, John Fiske's "Critical Period of American History, 1783-1789," which gives a brilliant exposition of American struggle for national unity. 3 o THE UNWRITTEN CONSTITUTION. the possession by the general government of the powers of sovereignty; while the existence of this large territory as a common fund served in itself, through the promptings of self-interest, to strengthen the tie that bound the States together. The credit of this initial step towards the establishment of a permanent union of the States is due to Maryland, who persistently refused to sign the Articles of Confederation until she was assured of the cession of these lands to the Union. The next step was the formation by Virginia and Maryland, under the inspiration of Washington, of a joint commission for the mutual control of the navi- gation of the Potomac River. Inasmuch as the control of this river would involve more or less the control of the Ohio, whose head-waters joined with those of the Potomac, Pennsylvania was invited to join with the other two States in this commission. Other matters of common concern, such as the regu- lation of the currency and other commercial regula- tions, were suggested for consideration by this commission. After some delay, and as a result of these efforts of union for commercial and economical purposes, the Virginia legislature passed a motion, inviting all the States to appoint commissioners to meet at Annapolis for the consideration of the best method of securing a uniform regulation of com- merce. The attendance at the Annapolis convention CONSTITUTIONAL LAW. 31 was not large enough to enable any effective action to be taken, and, after much discussion, the commis- sioners adopted a resolution urging the appointment of commissioners, to convene in Philadelphia in the following May, " to devise such further provisions as shall appear to them necessary to render the Consti- tution of the federal government adequate to the exigencies of the Union, and to rep'ort to Congress such an act as, when agreed to by them, and con- firmed by the legislatures of every State, would effectually provide the same." Congress did not immediately agree to this propo- sition for a convention, but the suffering of the peo- ple, and their growing discontent, followed by fre- quent riotous outbreaks of the most serious sort, finally compelled Congress to take the necessary action, and a resolution was adopted, recommending a convention in Philadelphia, in May, 1787, of dele- gates from the States " for the purpose of revising the Articles of Confederation, and reporting to Con- gress and the several legislatures such alterations and provisions therein as shall, when agreed to in Con- gress and confirmed by the States, under the Federal Constitution, be adequate to the exigencies of gov- ernment and the preservation of the Union." : 1 See Chapter V. of Mr. Fiske's " Crifical Period of American History," entitled " Germs of National Sovereignty," for a very inter- esting and graphic account of the growth of the demand for a more effective national government. 32 THE UNWRITTEN CONSTITUTION. But the local pride and prejudices of the people were not the only serious obstacles in the way of an increase of the powers of the Federal Government, which fell short of a complete extinction of the States as independent bodies politic. It was idle to advo- cate the absorption of the States into one composite state. The people would have rejected such a proposition with vehemence and indignation. And yet history had never produced a federal govern- ment which was not a league. The Federal Union, under the Articles of Confederation, was only a league, and neither claimed nor exercised any au- thority over the individual citizen. The experience of the people under these Articles of Confederation, had demonstrated the futility of the attempt of thsr Federal Government to assume the powers of govern ment, without the ability and right to compel the obedience of the individual to its commands ; and yet the past experience of the world suggested no relief or remedy. It was reserved for an American to create an absolutely new political idea of the most transcendent importance, and which has ulti- mately solved the problem of combining a strong central government with an independent local gov- ernment. In February, 17^, Pelatial Webster published "A Dissertation on the Political Union and Constitution of the Thirteen United States of North America," CONSTITUTIONAL LA W. 33 which was a year later followed by another of the same tenor, by Noah Webster, in both of which was proposed " a new system of government which should act, not on the States, but directly on individuals, and vest in Congress full power to carry its laws into effect." When we consider for a moment the won- derfulness of two separate and in many respects in- dependent governmental agencies exerting their pow- ers over the same territory, and each within its own sphere commanding the obedience of the same peo- ple, there is no occasion for surprise that it required a century of experience under the new government to fully appreciate its significance and effect. The successful maintenance of the separate autonomy of the Federal and State governments for a century, through all the vicissitudes of political fortune which fell to the lot of the people of the United States, furnished an enigmatical contradiction of the preva- lent notions of an indivisible sovereignty. 1 If there be such a thing in politics as sovereignty, it is necessarily indivisible, and hence it is impossible to subject a territory and people to two separate and independent governments without one of them becom- ing subordinate to, and the instrument of, the other. And I am satisfied that the political leaders of the 1 As to the absurdities taught under the doctrine of political sov- ereignty, see/w/. Chapter IX. on " State Sovereignty and the Right of Secession." 3 34 THE UNWRITTEN CONSTITUTION. day, such as Hamilton, Madison, and Randolph, who made such strenuous efforts to establish a strong federal government, put no faith in the feasibility of a dual government of this sort. For, upon the assembling of the constitutional convention, these statesmen advocated the establishment of a supreme federal government, which would reduce the States to subordinate provinces ; and they did not yield to the demands of the advocates of State rights until it was demonstrated that the convention would not adopt a centralized government. They feared, and the struggles of seventy-five years justified their fears, that the two governmental agencies could not maintain their independent autonomy. But against their will and in spite of their fears this became the fundamental principle of the American governmental agencies, about which the pplitical forces played with more or less vehemence for three quarters of a century, until, as a declaration of the results of the mighty crisis, the Supreme Court of the United States pronounced this country to be " an indestruc- tible Union composed of indestructible States." * 1 " But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Without the States in union there could be no such political body as the United States. (Lane County v. Oregon, 7 Wall., 71, 76.) Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may not unreasonably be said that the preservation of the States and the maintenance of their CONSTITUTIONAL LA W. 35 It was the adoption of this principle which changed the Federal Union from a league to a composite state ; or, to go to the German for apt expressions, from a Staatenbund to a Bundestaat, from a union of States to a state founded by the union of States. 1 In the constitutional convention of 1787, every complexion of political thought was represented ; and while, with the exception of a few irreconcilables, the entire convention felt the need of some radical change in the form or powers of the Federal Govern- ment, they were by no means agreed as to the proper measures for reform. They had assembled under instructions from Congress for the purpose of revising the Articles of Confederation, and hence they were not authorized to make any organic change in the character of the National Government. But having assembled in convention, and placed themselves under a pledge to keep the deliberations of the convention secret, until the new government had become firmly established, the Virginia delega- tion, aided by Hamilton, Wilson, and others, declared themselves boldly in favor of the revolutionary step of proposing an organic change in the form of gov- governments are as much within the design and care of the Constitu- tion as the preservation of the Union and the maintenance of the national government. The Constitution in all its provisions looks to an indestructible Union composed of indestructible States." Chase, Ch.-J., in Texas v. White, 7 Wall. 700, 725. *See/v/., Chapter VII., The Constitution in the War of Secession. : CONSTITUTIONAL LA W. 45 of the past. No, the great body of American con- stitutional law cannot be found in the written in- struments, which we call our constitutions ; it is unwritten, in the constitutional and legal acceptation of the term, and is to be found in the decisions of the courts and the acts of the National and State legisla- tures, constantly changing with the demands of the popular will. These mutations are not so notable or so striking in the constitutional law of the States, as in that of the United States, nor are they so fre- quent ; but the difference is only in degree, and is to be accounted for on the ground, that the State con- stitutions are not so elementary as the Federal Constitution, and are therefore more inflexible, and hence require frequent revisions by constitutional convention. In the succeeding pages, I will give striking exam- ples of the mutations of constitutional law, which will, I think, incontestably prove the correctness of my thesis ; and, after proving that the changes do occur, I will attempt to give a logical and ethical justification of the fact. CHAPTER III. THE ELECTORAL COLLEGE. \]As a consequence of the struggles of the State- rights and National parties, in the convention of 1 787, the selection of a President was provided for on a very unique plan. In order to keep the executive separate from and independent of the other depart- ments of the government, some method had to be adopted, whereby his election could be had without the instrumentality of Congress. In order to satisfy the National party, the principle of popular represen- tation had to be recognized, while State lines could not be ignored without causing dissatisfaction among the adherents of State sovereignty ; and there was entire unanimity among the delegates of all shades of political thought that the President and Vice- President should be selected free from party strife, so that they could faithfully represent the people, irrespective of party ties and party policies. ,/To meet every demand, the convention devised the plan of election by electors chosen by the States, each State to choose as many electors as it had senators 46 THE ELECTORAL COLLEGE. 47 ^ and representatives in Congress. These electors were required to meet in their respective States to cast their votes for the men whom they considered best fitted to assume the responsible duties of these offices. These votes, sealed up, were to be trans- mitted to Congress, and to be opened by the Presi- dent of the Senate and counted in the presence of the two Houses assembled in joint session. Provision was made for election by the Houses of Congress, the President by the House of Representatives, and the Vice-President by the Senate, in case no one received a majority of all the votes cast. One great object, held in view in the adoption of \ this artificial system of election, was to remove the j selection of the President as far away from the people as it was possible. Not only was that object mani- fest by the adoption of the plan itself, but it was to be observed by the manner of selecting the electors, viz., by the State legislatures, which at first generally prevailed. In the first two elections, there was no party strife, for no one appeared as a candidate for the Presidency in opposition to the man who was facile princeps among his countrymen. But even in the second election, in respect to the Vice-Presi- dency, party influence began to be felt in the actions of the electoral college. The electors who leaned to the Federal party were expected to vote for John Adams, while the anti-Federalists were expected 48 THE UNWRITTEN CONSTITUTION. to vote for George Clinton. But in the third elec- tion, party strife was fully developed ; and although no pledge was exacted of the electors, party influ- ence was sufficiently strong to compel most of the electors to vote for the leaders of their respective parties, John Adams and Thomas Jefferson. By the time that the fourth election was held, party organi- zations were perfected ; each party put up its candi- dates for President and Vice-President before the selection of the electors, and the contest was not over the electors so much as it was over the respec- tive candidates for President and Vice-President, which the two parties had nominated. Quietly and as a matter of course, apparently, the discretion ot the electors, in the performance of their duty, van- ished in the air, and ever since, the electors, who, according to the spirit of the constitutional provision, were expected to exercise a wise discretion in the selection of a President and Vice-President, and who were first selected, and were intended by the framers of the Constitution to be selected, for their superior wisdom and knowledge of the merits and qualifica- tions of our public men, are called on to simply register the decree of the nominating convention of the party which was successful at the polls. The contest is at an end, when the election for electors is over. It is not necessary to wait for the meeting of the electors in order to learn who would be the next THE ELECTORAL COLLEGE. 49 President and Vice-President. Public opinion is so strong against the exercise of discretion by an elec- tor, that if one should be rash enough to exercise the discretion, which the spirit of the written Constitu- tion requires him to exercise, he would be buried under a public obloquy, that would be without limit, for he would be considered guilty of a treachery to his party, that would find condonation nowhere. Now what is the real, living constitutional rule as to the selection of a President and Vice-President ? that they are to be selected after deliberation by the electors, as being the men whom the electors consid- ered best fitted to fill the positions ; or that they must be nominated by parties, and selected by a popular election, indirectly through the choice of the electors of one party or of the other ? There can be no hesitation in coming to the conclusion that the latter is the real, living constitutional rule. But it must not be supposed that the written constitutional rule has been altogether deprived of its influence upon popular action. Following the fundamental rule, which requires obedience to the written word, until the power which enacted it has repealed it, the popular selection of President and Vice-President is still required to be made indirectly through the election of presidential electors. And there is no better illustration of the doctrine that constitutional law is the resultant of all the forces 3 50 THE UNWRITTEN CONSTITUTION. at play in society than to point out some of the surprising and unforeseen consequences of the existing system of election of these officers. The method of selecting the electors was soon changed to the popular election at the polls, and the entire number of electors, to which a State is entitled, are now voted for by the State at large. Consequently, when the popular decree in any State is delivered in favor of one party or of the other, all the chosen electors of that State will be cast for the presiden- tial nominees of the succcessful party, it matters not how large or how small the majority may have been. In consequence of the variance in the size of the majorities of the different States, it has very frequently happened that the candidates who are elected received only a minority of the votes cast in the popular election. Thus has been prevented a full realization of the demand for a popular election of presidential candidates. CHAPTER IV. THE RE-ELIGIBILITY OF THE PRESIDENT. THE written Constitution of the United States .-i6Wall., 37, 57- 104 THE UNWRITTEN CONSTITUTION. compose this Union, from the time of their becoming free, independent, and sovereign. What these funda- mental principles are it would be more tedious than difficult to enumerate. 1 They may all, however, be comprehended under the following general heads : protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole/' 2 After stating that "it would be the vainest show of learning," to show that up to the adoption of the post-bellum amendments these privileges were not under the protection of the United States govern- ment, the court say " Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal Government ? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights, heretofore belonging exclusively to the States ? "All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the 1 See Tiedeman's " Limitations of Police Power," for a detailed discussion and application of them to the daily experiences of the individual. a Washington, J., in Corfield v. Coryell, 4 Wash. C. C., 371 ; and adopted by the Supreme Court of the United States, in Ward v, State of Maryland, 12 Wall., 430. CITIZENSHIP. 105 control of Congress, whenever in its discretion any of them are sup- posed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as, in its judgment, it may think proper on all such subjects. And still further, such a construction, followed by the reversal of the judgment of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights as they existed at the time of the adoption of the amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instru- ment. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions, when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character ; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other, and of both these governments to the people, the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt." l The court then proceed to eumerate what are to be considered as the privileges and immunities of the United States which the States cannot abridge, and which are as follows : " To come to the seat of government to assert any claim upon that government, to transact any business with it, to seek its protection, to share its offices, to engage in administering its functions. ' ' Free access to its seaports, through which all operations of foreign commerce are conducted ; to the sub-treasuries, land-offices, and courts of justice in the several States. " To demand the care and protection of the Federal Government over life, liberty, and property, when on the high seas or within the jurisdiction of a foreign government. 1 Pp. 77, 78. io6 THE UNWRITTEN CONSTITUTION. " To peaceably assemble and petition for redress of grievances. " The writ of habeas corpus. " To use the navigable waters of the United States, however they may penetrate the territory of the several States. ' ' To become a citizen of any one of the several States by a bona- Jide residence therein." The judgment of the court was that these were the only privileges and immunities whose protection is provided for in this amendment, and that the ordi- nary and relatively more important privileges and immunities of citizenship " are not privileges and im- munities of citizens of the United States within the meaning of the clause of the fourteenth amendment under consideration." The noble fundamental purpose of the court in checking the literal operation of the fourteenth amendment is to be found 'expressed in the closing paragraphs of the opinion. " But however pervading this sentiment [the desire for a strong national government] and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the States, with powers for domestic and local government, including the regulation of civil rights the rights of person and of property was essential to the complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the nation. " But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions re- quired, has always held with a steady and an even hand the balance CITIZENSHIP. 107 between State and Federal power, and we trust that such may con- tinue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Con- stitution or of any of its parts." This instance furnishes one of the most striking proofs of the thesis, that political constitutions are a growth, evolved from all the forces of society, both material and spiritual. We find first a novel principle of politics, />., that of a dual government, with separate autonomies, proposed and adopted by a nation, but its conse- quences yet unknown. There is a faint recognition at once even in the written Constitution of one con- sequence, viz., a dual citizenship, but the relative strength and obligation of the two separate citizen- ships are not referred to. After remaining in doubt for many years, it is claimed by the State Rights' party and the claim is indorsed and pronounced to be the supreme law of the land by the Supreme Court of the United States that the citizenship of7 the United States is an incident of, and depends forf* existence upon, the citizenship of the States. This decision of the Supreme Court was practically over- ruled by the findings of the court of war, but in order to provide a technical repeal, an amendment to the Federal Constitution was adopted, declaring the federal citizenship to be the primary and all- important thing, while the citizenship of the States was subordinate and incidental to it. While it is io8 THE UNWRITTEN CONSTITUTION. very likely that the people did not wish to do more, except possibly in the South, than to establish the perpetual supremacy of the National Government and of national citizenship over State governments and State citizenship, the literal scope was such, that a strict enforcement of the amendment would have resulted in a complete reduction of the States to the condition of provinces, and a grant to the United States Government of a supervisory control over the smallest concerns of life. Alarmed at the peril in which the people stood, and deeply impressed with the necessity of providing a remedy, the Supreme Court of the United States averted the evil consequences by keeping the opera- tion of the amendment within the limits which they felt assured would have been imposed by the people, if their judgment had not been blinded with passion, and which in their cooler moments they would ratify. The so-called strict-constructionists may assert that this was an unwarranted exercise of the judicial power, and one that could become the effective in- strument of tyranny; this may be so. But if by constitutional law we mean those rules which serve to define and limit the powers of government, we must pronounce the decision of the court in the Slaughter-house cases to be a successful modifica- tion of the rule found in the fourteenth amendment. That this reflected the prevalent, but perhaps then CITIZENSHIP. 109 unexpressed, sense of right, is proven by the fact that no attempt was made to overrule it by additional legislation ; nor was there any outcry against it, after the people had recovered from their surprise at this bold limitation of their written commands. Although there have been some material but minor modifica- tions of the rule in subsequent decisions, the ruling of the court in these cases is still a part of the con- stitutional law of the United States, serving as a bulwark to the States in their struggle for autonomy and self-government. CHAPTER IX. STATE SOVEREIGNTY AND RIGHT OF SECESSION. FROM the adoption of the Kentucky resolutions of 1798, until the hard logic of war placed the stamp of illegality upon the doctrine, there had always been a strong and influential party, whose fundamental tenets were that the Union was a confederation of sovereign States, which are bound by the laws and the Constitution of the United States, as long as they remain in the Union ; but which may, separately and at their own discretion, withdraw or secede from the Union, whenever they consider the confederation detrimental to themselves. Each State, as a sover- eign, was conceded this power. There were, of course, parties which asserted the sovereignty of the United States, and denied to the States this right of secession. This contest of principle was another consequence of the failure of the constitutional convention to settle definitely the true relation of the States to each other and to the Federal State. I do not believe that the arguments for and against the right no STATE SOVEREIGNTY. in of secession, which are to be found in the speeches of Webster and Calhoun, and of Clay and Hayne, and in histories and other books without number, present the matter in its true light. It is not incon- sistent with the highest respect for the great men, who participated with so much effect and power in these political debates of the Senate, for the claim to be made that there was a failure on both sides to appreciate and bring to light the real scientific facts of the situation, which justify logically the ultimate settlement of the question. It is with some hesita- tion that I proceed to present what I consider the true view ; but if there is no defect in my major premise, as explained and developed in the first and second chapters, the conclusion, to which I come in the discussion of the doctrine of State sovereignty and the right of secession, is irresistible. In this contest, the South was the aggressive party, while the North only resisted the extreme conclusion of the South in respect to the right of a single State to secede, whenever it was to its interest to do so. The Southern claim was that this Union was a confederation of independent, sovereign States ; that the Federal Government was the creature of the States, having only that power which the States del- egated to it, and that it may be shorn of its power over any single State, whenever that State, in conse- quence of the violation of the constitutional limita- H2 THE UNWRITTEN CONSTITUTION. tions by the United States Government, of which the State is to be the final judge, decides to secede from the Union, and establish itself as an independ- ent nation. Without undertaking to present any lengthy statement of the arguments pro and con, it may be pithily stated that the Southern claim of secession rested upon two fundamental principles. One was that of the Declaration of Independence, that " all governments derive their just powers from the con- sent of the governed " ; the general conclusion being that the governed may legally withdraw that consent, whenever the powers have been tyrannically em- ployed for the oppression of the people. The second principle was that sovereignty was reposed under our constitutional system in the States ; and that, in consequence of this fundamental fact, the Union was, under this Constitution as under the Articles of Confederation, only a league or confed- eration of sovereign States, which combined for purposes of mutual protection, and which consented to a grant to their general agent or government of those powers which were necessary to the promotion of their general welfare ; but that any one of these sovereign States, under an application of the first principle (i.e., government by consent of the gov- erned), may withdraw from the Union, whenever it considers itself wronged by the General Government STATE SOVEREIGNTY. 113 or its interests prejudiced by remaining in the Union. The opponents of the Southern theory have uni- formly admitted the correctness of the principle, that the just powers of government are derived from the consent of the governed ; but claim that this Consti- tution changed the Union from a league into a nation, and vested the sovereignty in the people of the United States. Both principles are so far false as to be misleading, and the general prevalence of these misconceptions^ has, in my judgment, been the chief cause of the greatest civil war history has ever recorded. I do not wish to be understood as losing sight of the de- mand for the abolition of slavery as a cause of the war. On the contrary, I recognize it as the imme- diate occasion of the war ; but I claim that the war might have been averted if the entire Southern peo- ple had not been educated in the political faith which rested upon these two misleading principles. The natural and uncontrollable impulse of the human mind is to demand a satisfactory basis for the exercise of governmental authority. The funda- mental query of political philosophy is, By what right do those in authority command your and my obedience ? This query has at all times required an answer, but it has never been so difficult to give a satisfying answer as now. In the days when the belief in the divine right of kings was general, and ii 4 THE UNWRITTEN CONSTITUTION. perhaps universal, a satisfactory answer to the ques* tion was readily obtained. No one questioned the right of the Creator of all things to command our obedience ; and if the kings were the vicegerents of God upon earth, their authority was derived from God. But when faith in the divine right of kings weakened, and was finally repudiated by the leaders, and perhaps also by the mass, of the civilized people of the world as a fundamental basis for governmen- tal authority, the philosophical minds of the world, under the lead of the English Hobbes and the French Rousseau, developed as a substitute the doc- trine of a social contract. If governmental power was not derived from God, it must be derived from the people, who by common agreement established the societies in which we live. This social contract involved, when the people entered into the social organization, the surrender of rights which were enjoyed by individuals in a state of nature, so far as such a surrender may be necessary to the common weal. None of these dreamers actually believed that while the people, in prehistoric times, were living without social organization of any kind, they suddenly came to the conclusion that it was good for them to organize into political bodies and to sub- ject themselves to certain rules for the common good. They did not believe any such marvellous tale. Starting out with the declaration of the mutual STATE SOVEREIGNTY. 115 equality of all men, they could not justify in reason the acquisition by the few of a control of the many, except upon the hypothesis that this subjection of the mass to the few was voluntary. But that hypothesis is not consistent with any other theory than that all governments are founded upon a social contract. They knew that the contract was a fiction, but they had become so accustomed, as we still are, to the use of fictions in the administration of the law, that they were not conscious of the violence done to the facts of the case. The only way of solving the metaphysical difficulty that confronted them was in the use of this fiction, and if the facts did not fit and support the hypothesis, they were in a frame of mind to pronounce it all the worse for the facts. 1 This doctrine was in the air everywhere when the Government and Constitution of the United States were established, and although political scien- tists have generally repudiated it, it still has a hold upon the popular mind, and dominates the legal thought of this country. 8 1 " All men have one common original : they participate in one common nature, and have one common right. No reason can be advanced why one man should exercise any power or pre-eminence over his fellow-creatures more than another, unless they have volun- tarily vested him with it. Since, then, Americans have not, by any act of theirs, empowered the British Parliament to make laws for them, it follows they can have no just authority to do it." " Hamil- ton's Works," I., 6 (Lodge's edition). 'Not many months ago (1890) the Senate of the United States adopted a resolution congratulating the people of Brazil on the estab- u6 THE UNWRITTEN CONSTITUTION. The form which the theory generally assumes in the United States is that " governments are insti- tuted among men, deriving their just powers from the consent of the governed " (Declaration of Inde- pendence). While that doctrine is true in the sense that all governments rest upon the acquiescence in their decrees of the great mass of the people whom they rule, it is not true that the power is derived from the consent of all the governed. Confessedly, the power to control the actions of women and children is not derived from their consent, not even in the land of so-called universal suffrage. And where the suffrage of male adults is limited to those who possess an educational and property qualification, the fallacy of the doctrine becomes still more manifest. It is absurd to say that the thieves and thugs who infest society ever subscribed their consent to the criminal laws of the land. They have not even acquiesced in their establishment, except so far as an over- powering force has compelled them to yield partial obedience. But it may be urged that by this doctrine is meant not that the consent of each and every individual to lishment by them of a government depending for its powers upon the consent of the governed ; and the decisions of the courts and the practical treatises on constitutional law still teem with references to the natural rights of man, and a surrender of a part of them upon entry into organized society. See ante Ch. VI. STATE SOVEREIGNTY. 117 the laws of the country must be obtained before they can be rightfully enforced, but that the govern- ment derives its just powers from the consent of the majority of the people whom it rules. But, granting that this is a proper limitation upon the meaning of the postulate, and forbearing to do more than make the claim that the limitation is a fatal admission of the insufficiency of the theory, since it would not then furnish any justification for the control of the minority by the majority, even then the theory will not fit in with the facts. It is to be supposed that no one would question the truth of the proposition that only those rule who have the right to exercise the electoral franchise. If one cannot vote in the elections of the country, he cannot be said to have given his consent to the enactment and enforcement of the laws. Now the population of the United States was in 1880 fifty millions, and it would not be too liberal an estimate to put the population in 1888 at sixty millions. I believe the census of 1890 will show a still greater increase. It will without doubt be con- ceded that the presidential canvass of 1888 was a very warm contest, and brought out the full strength of both parties ; and that almost every one voted in that election who had a right to vote. The total number of votes cast at that election for all the pres- idential candidates was 1 1,388,038. The eleven mil- n8 THE UNWRITTEN CONSTITUTION. lions, therefore, determined among themselves who shall exercise governmental authority over the sixty millions. On what theory of consent can it be ex- plained that the eleven millions had a right to com- mand the obedience of the forty-nine millions ? The authority of the eleven millions and of their govern- mental representatives, to control the actions of the silent, non-participating forty-nine millions, rests upon no other legal basis than that which supports the right of the law-makers to compel the thieves and thugs of society to render obedience to their edicts. It is because the eleven millions have the power to compel the obedience of any one of the forty-nine millions, that he renders obedience to the laws of the country. The moral influence of the eleven millions over the mass of the forty-nine mil- lions, rather than the possession of the superior physical force, is what secures the subjection of the many to the commands of the few. But still the proposition remains true, that the exercise of political power by the few does not rest upon the consent of the subject and silent majority, but upon the posses- / sion by the few of the superior strength, both moral and material. And the commands of these few con- stitute the law, whatever may be their inherent viciousness or inequity. Moral reasons may be assigned for pronouncing a particular exercise of authority by the ruling power to be unrighteous or STA TE SO VEREIGNTY. 1 19 unjust ; but no exercise of authority by the ruling power in the land can ever be called illegal. Not only is it true as a fact, that governments do not derive their just powers from the consent of the governed, but it is not even believed in by the peo- ple, except as a part of their philosophy. It is not a part of their practical politics, as the following clipping from a current number of a leading journal will show : ' ' We shall never go back to the crude attempt of the Puritans to secure the purity of the ballot by confining the suffrage to church members ; but we may well question whether we have not gone quite too far in the opposite direction, in giving the suffrage to everybody regardless of either moral or intellectual qualifications, and whether it is not high time we took some measures to make conscience more powerful at the polling-booth." l Who is meant by " we " in this extract ? Until our attention is directly called to it, it does not ap- pear strange to us that the distinguished editor should refer to some aggregation of tlie people, as having in them the totality of governmental power, by the personal pronoun " we," without any other descrip- tion. And it is very likely that the great majority of the readers of this editorial, if they had been ques- tioned, would have stated that the writer was refer- ring to the power of the people to regulate their con- cerns for the general welfare. But that could not have been the thought of the writer; nor did the 1 Christian Union, editorial, " Political Puritanism," Jan. i, 1890. 120 THE UNWRITTEN CONSTITUTION. readers, whether they indorsed or disapproved the proposition, base their conclusion upon the funda- mental principle that the people en masse were referred to under the personal pronoun "we." For it is manifestly absurd to urge that the mass of the people, in whom it is claimed is reposed all political power, should confine the exercise of suffrage to the few. Whether consciously or unconsciously, the writer must have had in mind the antagonism of good and evil in politics, and under the personal pro- noun " we " he was referring to those individual units of the political world, which constituted the good elements, and which had the power to control the evil elements. And it does not need to go to any length to show that the good elements in the body politic are not always in a numerical majority, eveix when they effectively control the actions of the vicious and evil. We have in this casual instance, taken from a journal noted for its carefully prepared and well-digested editorials and news-matter, a striking proof of the practical want of faith in the people in the doctrine of universal or popular suf- frage. They do not really believe that political power resides in the mass of the people. When we lay aside our political dreaming, and come down to a consideration of the plain facts of political science, we are forced to the conclusion that there is no com- munity in the world whose inhabitants stand on an STATE SOVEREIGNTY. 121 absolute equality before the law, and hence no com- munity in whose entire population the supreme power may be said to be vested. All governments are either monarchies or oligarchies. 1 The fallacy of the doctrine that the government "derives its just powers from the consent of the governed," is still further exposed when it is remem- bered that most of the laws now in force were enacted before the present generations were born. They acquiesce in their enforcement, or rather the laws are enforced against the rebellious, because the present generations in the mass have acquired the habit of voluntarily obeying them, and desire their enforcement against others, in order to prevent injury to themselves. And it is also true that the laws will cease to be enforced as soon as public opinion, under the operation of the social forces, undergoes a change, and those who form public opinion generally justify the doing of the things for- bidden by the pre-existing rules of law. But it can- not be said that the enactment of any law rests for 1 " Nor, again, can sovereignty be said to reside in the entire com- munity an error to which French writers on public law seem especially liable. Their meaning may perhaps be that no body of individuals except the entirety of the people ought to be recognized as superior ; but a dogma like this is something very different from the statement of a fact ; and the truth is that no government correspond- ing with the description exists in the world. All politics are either monarchies or oligarchies, since even in the most popular women and minors are excluded from political functions." Sir Henry Maine, in " Papers," etc. (1855), vol. i., pt. i. f p. 30. 122 THE UNWRITTEN CONSTITUTION. its authority upon the consent of the governed. The living part of municipal law having no reference to the dead letters consists of those rules of human conduct which the great mass of people habitually and spontaneously obey, and which they compel the rebellious minority to obey, in order to prevent injury to the law-abiding individual or to the com- monwealth. If that be the true definition of the law, then all governmental authority rests upon the commands, not of a dead generation, but of a living generation. And even the treaties and other com- pacts which a past generation makes, leaving the ethical element out of consideration, are legally binding upon the present generation only so far as they acquiesce in their observance, or are required by a superior force to observe them. The binding authority of law, therefore, does not rest upon any edict of the people in the past ; it rests upon the present will of those who possess the politi- cal power. The other political fallacy is wrapped up in the notion of sovereignty. Political writers of all shades of opinion speak of the sovereignty of the state, the sovereignty of the king, the sovereignty of the people ; and our own history is filled with the discussions con- cerning the location of sovereignty in a federal state. The advocates of the State Rights' theory maintain that, since the Federal Government was the creation STATE SOVEREIGNTY. 123 of the States, sovereignty must reside in the States as separate bodies-politic, while the National parties claim that sovereignty resides in the people of the United States as one body-politic. Notwithstanding the looseness which characterizes the use of the term " sovereignty " in these discussions, the elements of personality and of omnipotence are always present, more or less, in the meaning attached to the term, showing a close adherence to its original meaning, when there was one individual who claimed to be the omnipotent ruler of the people by divine right. Hence the claim is made that sovereignty is indivisi- ble and subject to no legal limitation. As long as this definition of sovereignty is applied to an abso- lute monarchy for example, like the Empire of Russia no serious difficulties are experienced in making use of* the notion of sovereignty in the prac- tical explanations of the phenomena of political life. But when the notion is applied to a popular govern- ment, a government which, whatever its form, is founded upon a recognition of the repose of the ultimate political power in some part of the people, the most painful sort of confusion results. I will not attempt to give in this connection a summary of the views entertained by the political writers of Europe and America concerning the location and character of the sovereignty in a country ruled by a popular government. Such explanations are to be found in 124 THE UNWRITTEN CONSTITUTION. many books and need not be repeated. For it seems to me that if the reader has up to this point con- ceded the correctness of my propositions concerning the origin and development of law, both public and private, he will have no need for these political ab- stractions. To him sovereignty has no practical meaning which does not make it synonymous with supreme power ; and the sovereign or sovereigns are the individual or individuals who together constitute the repository of the supreme power of the land ; not the aggregation of individuals which have been declared by a past generation to be the repository of the supreme power of the land, but that aggregation of individuals which do now possess the supreme power of the land. Hence the written Constitution cannot locate the sovereignty of this country. It may be claimed, without the fear of successful contradiction, that prior to the present Constitution sovereignty resided in the States ; because we know that the Federal Government had not the power to compel the obedience of the States, and was under the Articles of Confederation denied all control over the individ- ual citizens. And it may also be claimed that the present written Constitution contains nothing which might serve as a transfer of sovereignty from the States to the people of the United States. But that Constitution did make a transfer possible by giving to the Federal Government direct control of the indi- STATE SOVEREIGNTY. 125 vidual. Then began a contest for the supremacy between these two forces, the forces of disintegration and the forces of centralization. According to the definition of sovereignty here given, its location re- mained doubtful and could not be settled until the result of the civil war demonstrated the superiority of the forces of centralization. It would seem plain, therefore, that the right of secession cannot be proved or disproved by reference to the written words of the Constitution, or to the opinions and intentions of those who helped to frame the Constitution and found the government. For, since all law derives its binding authority from the present commands of those who now control and mould public opinion, and not from any original compact or consent of the governed, the supreme power is in that aggregation of individuals, which now has the ability to enforce obedience to its com- mands. The people of the United States exercised supreme power over the State of South Carolina and prohibited its secession from the Union for the same reason and on the same ground as they exercised supreme power over the Mexicans, who became American citizens, in consequence of a cession by Mexico to the United States of the territory in which they lived. It was because in both cases the United States had the ability to assert supreme power over the objecting individuals. The fact that the United 126 THE UNWRITTEN CONSTITUTION. States hold these peoples in subjection makes the people of the United States the depositary of sovereign power ; and whenever that fact ceases to exist, and the supreme power has in fact been trans- ferred to some other aggregation of individuals, sovereignty will no longer be in the people of the United States. But if that be the case, one might ask what be- comes of that clause of the Declaration of Indepen- dence, in which it is claimed " that, whenever any form of government becomes destructive of these ends (z.^, the guaranty of the inalienable rights of man), it is the right of the people to alter or abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness " ? What is the meaning of this declaration, if it be true that that aggregation of individuals is sovereign, which has the actual ability to enforce obedience? The difficulty is occasioned only by a confusion of abstract moral and actual legal claims. A claim is abstractly moral or immoral, rightful or wrongful, according to its inherent character and its good or bad effect upon the general welfare, independent of the ability to assert and compel its recognition ; but it is legal or illegal, right or wrong legally, as it accords with, or opposes, the commands of those who pos- STATE SOVEREIGNTY. 127 sess the political power of the country. It is evident, therefore, that the exercise of the right, claimed in the American Declaration of Independence, to alter or abolish any government which fails to secure to the individual protection to life, liberty, and the pur- suit of happiness, however justifiable in morals it might be at times, is never legal, always illegal ; for the aim of those who exercise this right is to over- throw those who are the existing sovereigns, and whose commands are the law. Revolutions are nothing more than successful rebellions, while rebellions differ from revolutions only in the fact that the former are unsuccessful. Both have their beginning in unlawful acts, even though the cause be righteous. But just as soon as the rebellion becomes a revolution, the former sovereign power is overthrown, and another power, represented by the revolutionists, takes its place. With this shifting of the supreme power, a radical change is effected in the character of the actions of the opposing parties. The acts of the \ revolutionists then become legal, while the acts of the \ supporters of the old government become illegal. We are now prepared to state the conclusion of the argument. If the powers of government are derived from the ability of those who command to enforce obedience, and the sovereignty of a nation resides in those who for the time being possess the political power, the right of secession is nothing more than 128 THE UNWRITTEN CONSTITUTION. the right of revolution, morally justifiable or unjus- tifiable, according to the character of the causes which induced its exercise, but never legal, until its successful exercise has wrought a transfer of the political power from one aggregation of individuals o another. CHAPTER X. THE UNITED STATES GOVERNMENT ONE OF ENU- MERATED POWERS. FREQUENTLY, during the first century of our national existence, the government of the United States has assumed powers, which were highly essen- tial to the promotion of the general welfare, but which were not expressly delegated to the Federal Government. The exercise of such powers has always met with the vehement objection of the party in opposition although each of the great national parties has in turn exercised such questionable pow- ers, whenever public necessities or party interests seemed to require it the objection being that the Constitution did not authorize the exercise of the power, since there was no delegation of it by the Constitution. Popular opinion, concerning the fun- damental character of the Federal Government, which had been lately established, was formulated in the adoption of the tenth amendment to the Constitu- tion, which provides that " the powers, not delegated to the United States by the Constitution, nor pro- 9 129 1 3 o THE UNWRITTEN CONSTITUTION. hibited by it to the States, are reserved to the States, respectively or to the people." Relying upon this amendment as the authority for it, it has become the generally recognized rule of constitutional construc- tion, that, adopting the language of an eminent writer on constitutional law, " the government of the United States is one of enumerated powers, the National Constitution the^instrumGnt which specifies, and in which the authority should be found for the exercise of, any power which the national government assumes to possess. In this respect it differs from the constitutions of the several States, which are not grants of powers to the States, but which apportion and impose restrictions upon the powers which the States inherently possess." 1 The so-called " strict constructionists " have main- tained that the United States can exercise no power but what is expressly granted by the Constitution. But this rule was at times applied so rigidly by the party in opposition, whenever it was proposed to prevent the enactment of a law which was obnoxious to them, that the right was denied to the United States Government to exercise even those rights 1 Cooley, Const. Lim., 10, n. See, also, to the same effect, Mar- shall, Ch.-J., in Gibbons v. Ogden, 9 Wheat., i ; Story, J., in Martin v. Hunter's Lessee, I Wheat., 304, 326 ; Waite, Ch.-J., in United States v. Cruikshanks, 92 U. S., 542 ; Calder v. Bull, 3 Dall., 386; Trade Mark Cases, loo U. S., 82 ; Briscoe v. Bank of Kentucky, n Pet., 257; Oilman v. Philadelphia, 3 Wall., 713; and numerous judicial utterances of the same import in the State reports. UNITED STATES GOVERNMENT. 131 which, although not expressly delegated, were so necessary to the effectuation of the express powers, that it cannot be supposed that the framers of the Constitution did not intend to grant them. In numerous instances this question, of constitutional construction has been brought for settlement before the Supreme Court of the United States ; and it is now firmly settled that the Federal Government can exercise, not only the powers which are expressly granted, but also those powers, the grant of which can be fairly implied from the necessity of assuming them, in order to give effect to the express grant of powers. " The government of the United States can claim no powers which are not granted to it by the Constitution ; and the powers actually granted must be such as are expressly granted, or given by neces- sary implication." ' Although the United States Supreme Court has never, in its numerous decisions on constitutional construction, departed from the doctrine that the United States Government may exercise powers which are implied from the express grant of powers, it is worthy of note that for nineteen years one justice Mr. Justice Daniel of Virginia consistently dissented from every judgment of the court which was based upon the recognition of any implied 1 Story, J., in Martin v. Hunter's Lessee, I Wheat., 304, 326; Marshall, Ch.-J., in Gibbons v. Ogden, 9 Wheat., I, 187, etc. See preceding note. i 3 2 THE UNWRITTEN CONSTITUTION. power. His persistent claim was that " the Consti- tution itself is nothing more than an enumeration of general abstract rules, promulged by the several States for the guidance or control of their creature or agent, the federal government, which for their ex- clusive benefit they were about to call into being. Apart from these abstract rules, the Federal Govern- ment can have no functions and no existence." 1 This doctrine of implied powers gave to the Fed- eral Constitution that elasticity of application without which the permanency of the Federal Government would have been seriously endangered. 9 But at the same time it produced the very effect, in a greater or less degree, the fear of which urged the strict con- structionists to oppose its adoption, viz. : that it would open the way to the most strained construc- tion of express grants of power, in order to justify the exercise of powers that could not be fairly im- plied from the express grants. Indeed, the country Opinion of Justice Daniel in Marshall v. B. & O. R. R. Co., 16 How., 346. 3 ' ' While the principles of the Constitution should be preserved with a most guarded caution, it is at once the dictate of wisdom and enlightened patriotism to avoid that narrowness of interpretation which would dry up all its vital powers, or compel the government-^ as was done under the Confederation to break down all constitu- tional barriers, and trust for its vindication to the people, upon the dangerous political maxim that the safety of the people is the supreme law (sains populi suprema lex), a maxim which might be used to justify the appointment of a dictator, or any other usurpation." Story on Constitution, 1,292. See Chapter VII. on The Suspension of the Writ of Habeas Corpus during the Civil War. UNITED STATES GOVERNMENT. 133 has often been presented with the spectacle of United States, as well as State, judges and legisla, tors engaged in justifying questionable but necessary assumptions of power by the general government, by laboriously twisting, turning, and straining the plain literal meaning of the constitutional provisions, seek- ing to bring the powers in question within the opera- tion of some express grant of powers. For illustra- tion I will refer only to two extreme cases the Louisiana purchase, and the issue of treasury notes with the character of legal tender. In the case of the Louisiana purchase, the exercise of the questionable power was so plainly beneficial to the whole country that it was generally acquiesced in. But the claim of an express or implied power to make the purchase was so palpably untenable that the transaction has been tacitly admitted to have been an actual but necessary violation of the Consti- tution. Even Mr. Jefferson, to whom the credit of effecting the purchase of Louisiana was justly and chiefly due, was of the opinion that there was no warrant in the Constitution, for the exercise of such a power, and recommended the adoption of an amendment to the Constitution ratifying that pur- chase. In speaking of the objections which were urged against the project Judge Story says : " The friends of the measure were driven to the adoption of the doctrine that the right to acquire territory was incident to national sovereignty ; that it was a resulting power, growing necessarily out i 34 THE UNWRITTEN CONSTITUTION. of the aggregate power confided by the Federal Constitution, that the appropriation might justly be vindicated upon this ground, and also upon the ground that it was for the defence and general welfare." 1 An equally remarkable case of a strained construc- tion of constitutional provisions is the exercise by Congress of the power to make the United States treasury notes legal tender, in payment of all debts, public and private. The exercise of this power is not so plainly bene- ficial ; on the contrary, it has been considered by many able publicists to be both an injurious and a wrongful interference with the private rights of the individual. For this reason, the assumption of this power by the National Government has not met with a general acquiescence ; and the constitutionality of the acts of Congress, which declared the treasury notes to be legal tender, has been questioned in numerous cases, most of which have found the way to the Supreme Court of the United States. In Hepburn v. Griswold, 8 the acts of Congress of 1862 and 1863 were declared to be unconstitutional, so far as they make the treasury notes of the United States legal tender in the payment of pre-existing debts. 1 Story on Constitution, 1,286. I do not wish it to be inferred that I am unaware of the opinion of Chief-Justice Marshall, that the power to purchase foreign territory is to be implied from the power to make treaties with foreign nations. See Am. Ins. Co. v. Canter, I Pet., 511, 542. But the claim is made that this is one of the cases in which the doctrine of implied powers has been improperly applied. 9 8 Wall. ,603, UNITED STATES GOVERNMENT. 135 In the Legal-tender cases, 1 the opinion of the court in Hepburn v. Griswold was overruled, and the acts of 1862 and 1863 were declared to be con- stitutional in making treasury notes legal tender, whether they applied to existing or subsequent debts, the burden of the opinion being that Con- gress has the right, as a war measure, to give to these notes the character of legal tender. In 1878 Congress passed an act providing for the reissue of the treasury notes, and declared them to be legal tender in payment of all debts. In a case arising under the act of 1878, the Supreme Court of the United States has finally affirmed the opinion an- nounced in 12 Wallace, and held further that the power of the government to make its treasury notes legal tender, whenever the public exigencies require it, being admitted, it becomes a question of legisla- tive discretion when the public welfare requires the exercise of the power. 8 A perusal of these cases will disclose the fact that the members of the court and the attorneys in the causes have not always referred to the same constitutional provisions for the authority to make the treasury notes legal tender. Some have claimed it to be a power im- plied from the power to levy and carry on war ; some refer it to the power to borrow money, while others claim it may be implied from the grant of 1 12 Wall., 457. 9 Juillard v. Greenman, no, U. S., 421. 136 THE UNWRITTEN CONSTITUTION. power to coin money and regulate the value of it. It will not be necessary for the present purpose to demonstrate that this power is not a fair implication from the express powers mentioned. A careful read- ing of all the opinions in the cases referred to will at least throw the matter into hopeless doubt and uncertainty, if it does not convince the reader that in assuming this position violence has been done by the court to the plain literal meaning of the words. The cases are not rare in which forced construc- tion has been resorted to, in order to justify the exercise of powers which are deemed necessary by public opinion. 'Nor can we expect to prevent alto- gether this tendency to strain and force the literal meaning of the written Constitution, in order to bring it into conformity with that unwritten consti- tution, which is the real constitution, and which embodies the living rules of conduct ; for this un- written constitution is steadily but slowly changing under the pressure of popular opinion and public necessities, checked only by the popular reverence for the written word, f But it is wise to eliminate every thing which is calculated to increase this strain ; and if the strain is increased in any case by an erroneous interpretation of the grammatical meaning of the written Constitution, it is a public benefit to point this error out, even though it be- UNITED STATES GOVERNMENT. 137 comes necessary to claim that the framers of the Constitution did not understand the literal meaning of their own enactment. The attempt will be made to show that this was the case with the accepted in- terpretation of the Tenth Amendment to the Federal Constitution. A stable and enduring government cannot be so constructed that no branch of it cannot exercise a given power unless it is granted by the Constitu- tion, expressly or by necessary implication, unless one escapes from the dilemma by claiming any valuable power as implied from the power to pro- mote the general welfare. A government, as a totality, may properly be compared to a general agent, who does not require any specific delegation of power to do an act, provided it falls within the scope of the agent's general authority. A govern- ment, like a general agent, may have express restric- tions or limitations upon its general powers. But in ^ the absence of a prohibition, the right to exercise a given power, which falls within the legitimate scope of governmental authority, must be vested in some branch of the government. 'As a general proposi- tion, I believe the foregoing statement that all gov- ernments can exercise any governmental power, which is not prohibited, as of necessity, would pass without question. Criticism is to be expected only when the attempt is made to apply the doctrine to 138 THE UNWRITTEN CONSTITUTION. the composite federal state. Undertaking the proof of the correctness of this rule, in its application to the federal state, in order to put the whole matter clearly before the reader, I wish, with the aid of a diagram, to classify and distinguish the powers of government in the division of them between the two great parts of the federal state. It is as follows : Outer circle represents totality of governmental powers. Circle A = powers delegated to the United States. B = powers reserved to the States. Segment C = concurrent powers. " D = powers prohibited to both branches of government. " E = " " the States, but neither pro- hibited nor delegated to the United States. v/ The question for discussion is whether the United States Government may exercise a power which is prohibited to the States, but which is neither pro- hibited nor delegated to the General Government. The claim is made, on the general principle enunci- ated above, that from the necessity of the case the UNITED STATES GOVERNMENT. 139 United States Government can exercise such a power, for it would be impossible to construct a government, no branch of which can exercise a necessary power, unless it has been granted. As a proposition of fact, I need only refer to the two cases of governmental ac- tion without express authority, heretofore explained, in order to establish its truth. Whatever the writ- ten Constitution may provide on this question, the fact is that the United States Government does exer- cise powers which are not delegated to it by the written . Constitution. I do not mean to say that constitu- tional conventions never attempt to lay down a dif- ferent rule. On the contrary, if the great men who have contributed to the building up of the American constitutional law have been free from error in their construction of the tenth amendment of the Federal Constitution, the adoption of that amendment was an attempt to do this impossible thing, and the at- tempt has resulted in repeated violations of the Constitution, as construed by them, by the assump- tion by Congress of powers which were not expressly delegated nor fairly inplied. The Louisiana pur- chase and the Legal-tender cases, already referred to, furnish sufficient illustration of the truth of the statement. Cases of the same character will surely arise from time to time, and each repetition will diminish the popular reverence for the written Con- stitution, an evil to be deprecated by every earnest i 4 o THE UNWRITTEN CONSTITUTION. jurist. The difficulty in many of the cases lies in the accepted interpretation of the tenth amend- ment. According to the prevailing interpretation of that amendment, in order that the United States may by treaty make a purchase of foreign territory, or de- clare by act of Congress that the treasury notes shall be legal tender in payment of all public and private debts, the power must be granted by the Constitu- tion. It is clear that the State governments cannot exercise these powers, for the exercise of them is expressly prohibited to the States. But if it can be shown that this interpretation of the tenth amend- ment does not bring out the true grammatical mean- ing ; that the tenth amendment does not apply to such cases, it must be conceded that the United States may exercise these and other like powers, al- though they are not expressly or impliedly granted. 1 There is no reason why the real meaning of that amendment should not be given effect in construing the constitutionality of such acts. For no rule of construction is binding upon the courts and other departments of the government which does not rest for its authority upon some provision of the written Constitution. The intentions of the framers of the 1 It is claimed, however, by the author elsewhere, that the power to make treasury notes legal tender is prohibited by the Constitution to both the United States and the States. See Tiedeman's " Limita- tions of Police Power," 90. UNITED STATES GOVERNMENT. 141 Constitution are not at all binding upon the present generation, except so far as they have been em- bodied in the written word. 1 The tenth amendment reads as follows : " The powers, not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the peo- ple." It is clear that, if a given power is not prohib- " ited to the States, the General Government cannot exercise it, unless there is an express delegation of the power. The amendment declares that such powers are reserved to the States or to the people. But if a given power is prohibited to the States, but not delegated to the United States the right to purchase foreign territory, for example, can it be said that under this amendment the exercise of this power is reserved to the States ? The very prohibi- tion to the States forbids this construction. It may be claimed that in such a case the power would be 6 reserved "to the people." But that claim cannot be sustained. The reservation of the powers (re- ferred to in the amendment) in the alternative " to the States respectively or to the people," evidently involves a consideration of the possibility that the 1 " As men whose intentions require no concealment generally em- ploy the words which most directly and aptly express the idea they * intend to convey, the enlightened patriots who framed our Constitu- tion, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said." Marshall, C.-J., in Gibbons v. Ogden, 9 Wheat., I. 142 THE UNWRITTEN CONSTITUTION. State constitutions may prohibit to the States the exercise of a power which is reserved to them under the Federal Constitution, and in that case the power would be reserved to the people. What powers " are reserved to the States respectively, or to the people"? The answer is, those powers which are " not (neither) delegated to the United States by the Constitution, nor prohibited by it to the States." These two clauses, which contain the exceptions to the operation of the amendment, are not in the alternative. In order that it may be claimed under this amendment that a power is " reserved to the States respectively or to the people," it must avoid both exceptions, />., it must be a power, which is neither delegated to the United States nor pro- hibited to the States. It cannot be successfully claimed that a power is reserved, which is pro- hibited to the States, but which is not delegated to the United States. The conclusion, therefore, is that the United States Government is one of enumerated powers, so far that it cannot exercise any power which is not prohibited by the Constitu- tion to the States, unless it is expressly or impliedly delegated to the United States. But those powers, which are prohibited to the States, and which fall legitimately within the scope of governmental authority, may be exercised by the United States, unless they are also prohibited to the United States. UNITED STATES GOVERNMENT. 143 There need not be any express or implied grant of such powers to the United States. It is not claimed or implied that the interpreta- tion of the tenth amendment here advocated con- forms more nearly to the intentions of the framers of the Constitution than that which has been gen- erally accepted by writers upon the constitutional law of the country. Indeed, the revelation of the presence in the early history of the United States, of forces of disintegration in the politics of the coun- try, equal or almost equal to the forces of consolida- tion, would incline one to suppose that the inten- tions of the law-makers in the formation of the Constitution were properly reflected in that con- struction of constitutional limitations which would most effectively hamper and curtail the powers of the national government. The great struggle of the wise men of those days was to secure for the Fed- eral Government the delegation of sufficient power to establish an independent government ; and it may be said with equal truth and force that the Federal Constitution was wrested from an unwilling people. It would therefore be impossible to show that this construction of the tenth amendment was in conformity with the intentions and/ expectations of those whose votes enacted it. -It is freely ad- mitted that the prevailing interpretation is without doubt what the framers of the amendment intended. i 4 4 THE UNWRITTEN CONSTITUTION. But the intentions of our ancestors cannot be per- mitted to control the present activity of the govern- ment, where they have not been embodied in the habits of thought of the people we have seen that the interpretation has been practically ignored in the two illustrative cases or in the written word of the Constitution. Where the written word is equally susceptible of two constructions, one of which re- flects more accurately the intentions of the power that speaks through the word, that construction must prevail. Now the living power, whose will is given expression in the written word, is not the men who framed or voted for the written word, but the present possessors of political power. The present popular will must indicate which shade of meaning must be given to the written word. And that inter- pretation becomes the only possible one, when it may be shown by the experience of a century, that the alternative construction, which reflects the in- tentions of the original enactors of the written word, is pernicious to the stability of the govern- ment, and in violation of the soundest principles of political science. CHAPTER XI. CARDINAL RULE OF INTERPRETATION AND CON- STRUCTION OF WRITTEN CONSTITUTIONS. ' IT is a noteworthy fact, that in the earlier stages of development of a system of jurisprudence, when the knowledge of the meaning of words is crudest and least certain, greater stress is laid in interpreta- tion upon the letter of the law than in the more advanced judicial age. The written word is held in reverential awe, and is treated as containing every element of the law. 1 This tendency, in the inquiry into the operation and meaning of writings, to con- fine one's attention to the written word, is without doubt caused by a popular ignorance of the real 1 " A close adherence to the letter is a mark of unripeness every- where, and especially so in law. The history of law might write over its first chapter, as a motto, ' In the beginning was the word.' To all rude peoples the word appears something mysterious, whether it be written or solemnly uttered as a formula, and their simple faith fills it with supernatural power." v. Ihering, " Geist des R. Rechts," Bd. II., Theil 2, p. 441. In the subsequent pages Prof. v. Ihering undertakes an elaborate explanation of the metaphysical origin of the two kinds of interpretation, which is not only attractive for its beauty, but also for its value to the jurist. 10 145 146 THE UNWRITTEN CONSTITUTION. character of words as " vehicles of thought." The object of all communications is to enable one mind to learn the thoughts of the other; and the popular notion is that the spoken or written word is literally the " vehicle of thought " ; that the thought is actu- ally conveyed by the word from one mind to an- other. Of course this is altogether false. Thought is a mental operation, and the intended effect of words is to reproduce the same operation in the brain of another. But the word does not impart or transmit the movement from one brain to the other. It is also true that words are not the only means of communication of thought. Smiles, frowns, nods of the head, winks, and all kinds of gesturing, serve to communicate thought often as well as words ; and where the words are accom- panied by such gestures, their meaning is often materially modified, and sometimes completely changed. To take note under such circumstances simply of the spoken word would give to the mind of the hearer a very wrong impression of the thought of the speaker, and hence the actual thought would not have been communicated. In other words, the movements in the brain of the writer or speaker would not be accurately reproduced in the brain of the reader or hearer. Words, therefore, when considered separate from surrounding circumstances, do not always act as reliable vehicles of thought. RULE OF INTERPRETATION. 147 To secure at all times a correct appreciation of the meaning of the writer or speaker, one must take into consideration every fact, external and internal, which exerted an influence upon him at the time of writing or speaking his characteristics as well as his environment, for a word used by one man does not necessarily have the same shade of meaning which it might have when used by another. But every word must be understood roughly to have a certain and common meaning ; else it would be impossible for one mind to communicate with another. But within the limits of the general mean- ing of a word, there may be, and usually are, various shades of meaning, which the word alone cannot un- fold, and which must be learned from other sources. Now the literal or grammatical interpretation can only disclose this rough general meaning ; while the finer shades of meaning are only brought out by a liberal or logical interpretation, i.e., by a considera- tion of every fact, having more or less connection with, and influence over, the writer. It is needless to add that the latter interpretation is alone relied upon by educated peoples. Applying these fundamental principles to the interpretation of constitutional and statutory law, it may be stated that in the pursuit of the meaning of the law, every fact or circumstance, surrounding the lawgiver, when the law was promulgated, is required 148 THE UNWRITTEN CONSTITUTION. by our rules of interpretation to be inquired into; so that the cardinal rule of interpretation of laws may be said to be, that the intention of the law- giver, when the law was enacted, must prevail. The same rule of interpretation is made to apply to statutes and constitutions, as is applied to private contracts. In recognition of the soundness of this rule, as ex- plained by our books upon constitutional and statu- tory construction, we expect a law to be enforced in the sense in which the legislators intended, whether the legislators be members of a constitu- tional convention or of an ordinary legislature ; and the student is directed, in his effort to ascertain the meaning of a statute or clause of a constitution, to read the history of the times, the journal of the convention or legislature, and the speeches of its members. From these extraneous sources one ex- pects to learn every thing necessary to an under- standing of the exact meaning of the lawgiver. But would a strict observance of this rule enable a student to get an accurate knowledge of what the law is now? If the illustrations heretofore given in support of my thesis teach any one thing with pre- cision, it is that the intention of the legislator, whether he be Congressman or a member of a con- stitutional convention, is only effectuated, so far as it has found lodgment in the written word. The writ- RULE OF INTERPRETATION. 149 ten word stands alone as the embodiment of his in- tention ; and if it is possible for the court, in the enforcement of the law, to find in the written word two or more shades of meaning, it does not enforce that shade of meaning which was intended by the lawgiver, but that shade which best reflects the prevalent sense of right. And, in securing that con- cordance of the written law and the prevalent sense of right, all these rules of interpretation as generally understood are thrown to the winds. 1 Even the ordinary and plain meanings are twisted out of the words ; and, although public opinion usually com- mands an adherence to the word, if the case should be distressing, and the necessity for a repudiation of the written word be great, in obedience to popular demands, it is done by governmental authority. Still, as explained in the first chapter, the cases are rare in which a court safely disregards the written word of the legislature, for the prevalent sense of 1 " No statute ever resisted, in the end, the unfavorable opinion of the profession. Whether he intends it or not, the judge's hand grows weak, the arm of justice loses its power, acute interpretation lends all its means to evade and undermine such a statute, to introduce condi- tions not found in the text or to contract its language, and, as it were, by a silent conspiracy, to invent and recommend the most forced constructions, till even the rules of logic bend to the claims of inter- est. This silent war of the profession against the positive law is re- peated wherever that law becomes out of date without being formally repealed. It is in this manner that our instincts of right naturally react against the legislator's disregard of them." Lieber's " Herme- neutics," Appendix, by Dr. Hammond, pp. 272, 273. 150 THE UNWRITTEN CONSTITUTION. right usually requires a strict observance of the written word, however much violence is done by interpretation to the plain intention of the legislator. Is it a sufficient explanation of the common disre- gard of legislative intention to say that it is due to the influence of the imperfections of human nature on the administration of the law ? To my mind the fault lies in the cardinal rule of interpretation, as given by all our writers. It is true that a true inter- pretation of the law must disclose the real and full meaning of the lawgiver ; but in countries in which popular governments are established the real law- giver is not the man or body of men which first enacted the law ages ago ; it is the people of the present day who possess the political power, and whose commands give life to what otherwise is a dead letter. No people are ruled by dead men, or by the utterances of dead men. Those utterances are only law so far as they are voiced by some living power. Hence, since under a popular government govern- mental authority rests upon the voice of the people, or the voice of that part of the people which moulds public opinion, that interpretation, in strict con- formity with the fundamental rule of interpretation, must prevail which best reflects the prevalent sense of right. For the present possessors of political power, and not their predecessors, are the lawgivers for the present generation. While, therefore, as a RULE OF INTERPRETA TION. 151 general rule, the written word remains unchanged and confines the operations of the popular will to a choice of the shades of meaning, of which the written word is capable until the written word has been repealed or modified by the proper authority, the practical operation of the law will vary with each change in the prevalent sense of right ; and the judge or practitioner of the law, who would interpret the law rightly, i.e., ascertain with precision the rule of conduct in any case, need not concern himself so much with the intentions of the framers of the Con- stitution or statute, as with the modifications of the written word by the influence of the present will of the people. Or, in other words, he must find out what the possessors of political power now mean by the written word. This is not a philosophical speculation, having no foundation in fact. Notwithstanding its apparently radical contradiction of the commonly accepted rules of interpretation, it is acted upon and recognized by all the leading American authorities. Dr. Lieber re- cognizes this factor unconsciously, it is true, when, in distinguishing between the interpretation and con- struction of constitutional provisions, he says that a constitutional " sentence, then, must be interpreted, if we are desirous to ascertain what precise meaning the framers of our Constitution attached to it, and construed, if we are desirous of knowing how they 152 THE UNWRITTEN CONSTITUTION. would have understood it respecting new relations, which they could not have known at the time, and which, nevertheless, fall decidedly within the province of this provision." ' And the same may be said of Chief-Justice Marshall, where, in his opinion in the Dartmouth College case, he claims that a case may come within the operation of a constitutional pro- vision, even though the framers of the Constitution did not anticipate it, provided there is nothing in the written word to indicate that they would have ex- cluded it if it had been anticipated. 3 If a law or constitutional provision can by con- struction be made to cover a case, which the enacter 1 " Hermeneutics," p. 168. 2 " It is more than possible that the preservation of rights of this description was not particularly in the view of the framers of the Constitution, when the clause under consideration (the provision against impairment of obligation of contracts) was introduced into that instrument. It is probable that interferences of more frequent occurrence, to which the temptation was stronger, and of which the mischief was more extensive, constituted the great motive for impos- ing this restriction on the State legislatures. But although a particu- lar and rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it may be governed by the rule when established, unless some plain and strong reason for excluding it can be given. It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go further and to say that had this particular case been suggested the language would have been so varied as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operations likewise, unless there be something in its literal construction so obviously absurd or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expounded the Constitution in making it an exception." 4 Wheat., pp. 644, 645. R ULE OF INTERPRETA TION. 153 of the law or provision did not and could not antici- pate, and which he consequently cannot be said to have intended to include within the operation of the rule, then by what will power is the law or constitu- tional provision made to apply to that case? Is it not the present will of the people? And is not, then, in accordance with the rules laid down by Marshall and Lieber, a law or constitutional rule made to mean what the popular will intends by the written word ? The real character of the rule cannot be changed by giving it the name of construction. Construction, as defined by the authorities and dis- tinguished from interpretation, is nothing more than that logical interpretation, whereby the real meaning of the living lawgiver, i.e., the present possessors of political power, is ascertained. This fallacy in interpretation of laws is the result of holding on to a rule, after a change of circum- stances has confused its meaning or made its appli- cation misleading; and its retention, after it has ceased to be true, is due to the general acceptation of the groundless doctrine of the social contract. Under this doctrine, as well as under the doctrine of the divine right of kings, the popular conception of law was, as indicated in Blackstone's definition, that it emanated from some power above and beyond us, from God in the one case, and from our ancestors in the other case. That being the source of the law, in 154 THE UNWRITTEN CONSTITUTION. order to ascertain what the law is, we must discover what the governmental representatives of God, or of our ancestors, meant by the words used in their enactments ; in the same manner as we endeavor to ascertain the intentions of parties to a private con- tract, in order to determine their contractual rights. But as soon as we recognize the present will of the people as the living source of law, we are obliged, in construing the law, to follow, and give effect to, the present intentions and meaning of the people. CHAPTER XII. THE REAL VALUE OF WRITTEN CONSTITUTIONS. / IF it be true, as the .foregoing pages indicate, that all political constitutions undergo a constant and gradual evolution, keeping pace with the develop- ment of civilization, whether there be a written constitution or not ; that these changes generally take place without formal amendments to the writ- ten constitution, the question would naturally arise : Of what value then is a written constitution which demonstrates its superiority over an unwritten con- stitution ? The student who has been in the habit which is still very common, if not universal, with practical lawyers and judges of beginning his in- quiry injx^ Constitutional law with the fundamental postulate that all constitutional rules have their root in the written declarations of the sovereign power, and that these declarations must be observed and obeyed in the spirit and meaning with which they were first promulgated, such a student is apt, if he concedes the truth of the present thesis, to conclude that the superiority of written over purely unwritten constitutions has been dissipated altogether. X55 156 THE UNWRITTEN- CONSTITUTION. Not so. There is still room for the claim that the written constitution has in it elements which funda- mentally change the character of the government, and which the unwritten constitution cannot possi- bly claim. Not only this, but the further claim may be substantiated that, with a full understanding of the real value of written constitutions, and a differ- entiation of that real value from its supposed but fictitious value, the superiority of written over purely unwritten constitutions is enhanced rather than diminished. In the pursuit of this inquiry, it is necessary, as elsewhere, to take cognizance of the existence and effect of the two opposing social forces, which are present everywhere in bodies-politic, and which were prominently distinguishable at the time when the present Federal Constitution was adopted, viz. : the force of consolidation or centralization, and the force of disintegration. In every body-politic, in the effort to reconcile the claims of legal order and personal freedom from restraint, there are those who, on the one hand, are willing to sacrifice personal lib- erty to the cause of law and order, only as far as this sacrifice is absolutely necessary to the public safety ; while, on the other hand, there are those who place so high a value upon law and order, that they are willing and are clamorous for the sacrifice of personal liberty, whenever that sacrifice promotes the public WRITTEN CONSTITUTIONS. 157 welfare. The first class of political units translate the Latin maxim, salus populi suprema lex, the safety of the people is the highest law ; while the second class understand by that maxim that the welfare of the people is the highest law. The first class are therefore always afraid of the tyranny of officials ; while the second class dread the power of the demos. The first class are anxious to impose restraints upon the power of the officials ; while the second class are anxious to dimmish as far as possible the influence of the people on legislation. The first class are thor- oughly democratic in spirit ; the second class, thor- oughly aristocratic. It is needless to state that both of these political classes were present in full force during the first years of our national existence. In the sense in which the terms have here been explained, George Washington, Alexander Hamilton, James Madison, John Randolph, and others, who took the same view of politics, were Aristocrats ; while Samuel Adams, George Clinton, Thomas Jefferson, Patrick Henry, etc., were Democrats. The Aristocrats, dreading the absolutism of a democratic majority, sought to establish a government, which, although representa- tive and popular in character, could be conducted and controlled by the better elements of society, and whose actual administration would be as free as possible from the influence of the masses. Hence, 158 THE UNWRITTEN CONSTITUTION. in the constitutional convention, they proposed the establishment of a strong national government, with such checks and safeguards thrown around the exercise of the power of amendment, as to give permanency to the form and character of the govern- ment, and to prevent radical changes in response to every popular clamor. The Democrats were, on the other hand, in constant fear of the establishment in this country of another George III., under the guise of a popular executive. They fought for their liberties step by step, the result of the contest being that the Federal Constitution became a collection of compromises. But, in order that the opposing ele- ment may not easily or inadvertently secure any increase of power for the Federal Government, the Democrats were likewise anxious to impose restraints upon the power of amendment. Both parties then concurred in the same conclusion, proceeding from opposite standpoints, and resting the conclusions upon different reasons. But in their desire to impose restraints upon the exercise of official and popular power, respectively, they did not stop with making it difficult to amend the Constitution. Legislation was also made difficult by dividing the legislative power between three dif- ferent independent bodies or departments of the gov- ernment, the President, the Senate, and the House of Representatives, and requiring the concurrence of WRITTEN CONSTITUTIONS. 159 all, in order to make new laws, or to change existing ones, except that the two houses of Congress were permitted, by a two-thirds vote in each house, to pass a law over the veto of the President. The further provision is made, in the procurement of the same ends, that the President, the members of the Senate, and of the House of Representatives, shall not all be elected at the same time. Taken as a whole, it was the most ingenious device for the pre- vention of legislation that the world has ever known ; and after the adoption of the Constitution, both par- ties, from their respective standpoints, extolled these features of the Constitution, perhaps beyond their true value, losing sight of the great loss which en- sues from unwise legislation, because of the supreme difficulty to secure its repeal or modification. 1 But all these checks and balances, set down in a written constitution, would be unavailing, if the 1 John Adams has enumerated these checks and balances as fol- lows : "First, the States are balanced against the general government. Second, the House of Representatives is balanced against the Senate, and the Senate against the House. Third, the executive authority is in some degree balanced against the legislature. Fourth, the judici- ary is balanced against the legislature, the executive, and the State governments. Fifth, the Senate is balanced against the President in all appointments to office, and in all treaties. Sixth, the people hold in their own hands the balance agajnst their own representatives by periodical elections. Seventh, the legislatures of the several States are balanced against the Senate by sexennial elections. Eighth, the electors are balanced against the people in their choice of President and Vice-President." Letter of John Adams to John Taylor, "Works," vi., 467. 160 THE UNWRITTEN CONSTITUTION. means of securing their observance were not likewise provided in the exalted and extraordinary power of the courts to declare when a law, passed by Congress, or an act, committed by an official, is in contradic- tion of some provision of the Constitution. There is no express grant to the courts of such a power ; it is simply deduced from the necessity of determining when there is a conflict which law they must apply to the cause of action, the law of Congress or the rule of the Constitution. Hence the courts have no authority to pass upon the constitutionality of legis- lation, except when the settlement of this question is necessary in deciding the issue of a bona-fide cause of action, brought before the court by bona-fide liti- gants. But whenever it becomes in this way neces- sary to pass upon the constitutionality of national and State legislation, the decision of the court is binding upon all the parties to the suit, and upon all others whose rights are in any way affected by the judgment of the court. The same dread of the possession of absolute power by any department of the government is to be observed in the limitations of this extraordinary judicial power. The Supreme Court of the United States is not placed by the Constitution above the other departments of the government, with the power to prohibit any unconstitutional exercise of power by them. Not at all. This power to pass WRITTEN CONSTITUTIONS. 161 upon the constitutionality of a law or official act is only acquired by the court as an incident of its duty to enforce the law between parties litigant. The judgment of the United States Supreme Court on a constitutional question is not binding upon the President or upon Congress. Each department is required to obey the Constitution, according to the light in which the question under discussion is viewed by it. Andrew Jackson vetoed the bill pro- viding for the maintenance of a system of banks by the Federal Government, on the ground that the bill was unconstitutional, although the Supreme Court had pronounced a similar bill to be within the con- stitutional power of Congress. Furthermore, Mr. Jefferson refused to obey the order of the court in Marbury v. Madison (i Cranch, 137'), while Mr. Lincoln ignored the opinion of Chief-Justice Taney,* that the presidential proclamation of the suspension of the writ of habeas corpus was an unconstitutional exercise of authority. This is not all. The Supreme Court is still further shorn of its power by giving 1 In this case, Mr. Madison, as Secretary of State under President Jefferson, had refused to issue the commission of one Marbury, who had been appointed to a judicial position by President Adams on the last day of his term of office, but who had not received his commis- sion of the retiring President. The Supreme Court undertook to compel the new Secretary of State to issue the commission, but the mandamus was ignored by the President and his Secretary. 6 In Ex parte Merryman, Taney's Circuit Decisions, Campbell's Rep., 246. II 162 THE UNWRITTEN CONSTITUTION. to Congress the power to increase the number of the Supreme Court judges, and thus, with the aid of the President, to change the composition and ten- dencies of the court. If at any time the Supreme Court should too persistently withstand any popular demand in a case in which the people will not sub- mit to the judicial negative, by an increase in the number of the judges and the appointment to the newly created judgeships of men who will do the people's bidding, the popular will may be realized. I do not think there can be much doubt that the danger of official tyranny has been successfully dis- sipated in the American constitutional system, except so far as such tyranny may be demanded by a popular majority, by the frequency of the elec- tions and the short terms of service. Officials of all classes are too anxious to secure popular approval to make the administration of their offices a popular menace. They have their fingers constantly upon the public pulse, and every expression of popular approval and disapproval is noted. Indeed, the direct and constant responsibility of almost all classes of officials to public opinion, through frequent popu- lar elections, goes very far towards nullifying any superior merit which the written constitution pos- sesses over an unwritten constitution. For these officials, instead of attempting to throttle the popu- lar will, are too ready to obey every popular caprice, WRITTEN CONSTITUTIONS. 163 it matters not how grievously the written Constitu- tion may be thereby violated. And were the judges of the federal bench elected for short terms of ser- vice, and by popular election, as is the case in many of the States with respect to the State judiciary, the written Constitution would serve very little purpose. It is not needed for the protection of the people against the tyranny of the officials ; its only value is to serve as a check upon the popular will in the interest of the minority. By making the federal judiciary hold office during good behavior, and by providing in the Constitution for one Supreme Court, which cannot be abolished by congressional action, the means have been provided, in ordinary times of peace, of protecting the minority against the abso- lutism of a democratic majority. It enables a small body of distinguished men, whose life-long career is calculated to produce in them an exalted love of justice and an intelligent appreciation of the conflicting rights of individuals, and the life-tenure of whose offices serves to withdraw them from all fear of popular disapproval ; it enables these inde- pendent, right-minded men, in accordance with the highest law, to plant themselves upon the provisions of the written Constitution, and deny to popular legislation the binding force of law, whenever such legislation infringes a constitutional provision. This is the real value of the written Constitution. It 164 THE UNWRITTEN CONSTITUTION. legalizes, and therefore makes possible and success- ful, the opposition to the popular will. But this opposition, when most successful, does not serve as a complete barrier to the popular will. Not only do the judges themselves fall under the influence of the prevalent sense of right, and ordi- narily give in their decisions an accurate expression of it, but the various checks upon this veto power of the courts also serve to make their action only a dilatory proceeding ; or, to adopt the happy expression of James Russell Lowell, 1 this over- ruling power of the Supreme Court of the United States is but an obstacle " in the way of the people's whim, not of their will." But with this limitation, extensive as it is, the written Constitution serves a most beneficent purpose. If one professes any faith at all in popular government, he must confess to a desire that the popular will shall prevail, and that the danger to the commonwealth lies not in the people's will but in their whims and ill-con- sidered wishes. And even if the student does not have any faith in popular government, he must admit that, with an enlightened and spirited peo- ple, who know their strength, and who know that the living power in all municipal law proceeds from them, it is an absolute impossibility to suppress the popular will. Happy is that country whose consti- 1 "Democracy, and Other Addresses" (1887), p. 24. WRITTEN CONSTITUTIONS. 165 tutional system enables it to enjoy the blessings of popular government, while at the same time it is protected from the evils of hasty and passionate legislation. And while, perhaps, the constitutional system of this country has not developed exactly in accordance with the wishes and expectations of Washington, Hamilton, Madison, and their co-work- ers, yet if it were possible for them to know the results actually achieved, they would be satisfied with the knowledge that they had in a measure succeeded in establishing, what exists nowhere else, a popular government without democratic absolutism. THE END. 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN DEPT. This book is due on the last date stamped below, or on the date to which renewed. Renewed books are subject to immediate recall. FE B ? 1968 5 ft L DEC 23 '65 -KM L OAN DEPT. SEP 9 - 1966 8 7 RECEIVED AUG27'66-2PM LOAN DEPT. -21 1967 RECEIVED DEC 10 '67 -10 AM LOAN DEPT. REC'D LD J IN 2 ^'68 -10 AM ^Mte' 5 Uo^Sggagn* Du??7?965 6l LD 21-50m-I,' 1 o UNIVERSITY OF CALIFORNIA LIBRARY