LECTURES ON LAW FOR WOMEN.
By
Isaac Franklin Russell

CLASS
THE LIBRARY
OF THE
NIVERSIT
OF
COMMUNE VINCULUM
OMNIBUS ARTIBUS]}
MINNESOT
340
BOOK R914
+

LECTURES
ON

LAW FOR WOMEN.
DELIVERED AT THE
University of the City of New York
BY
ISAAC FRANKLIN RUSSELL, D. C. L.
CHAIR ENDOWED BY THE
WOMAN'S LEGAL EDUCATION SOCIETY.
کیرا
1892-93.
NEW YORK Economical Printing Company, 24 VESEY STREET.
1892.
Copyright, 1892, by
ISAAC FRANKLIN RUSsell.
340
R914
INTRODUCTORY LECTURE.
POPULAR FALLACIES REGARDING
LAW AND LAWYERS.
F all the words in common use, law is, perhaps, the most
susceptible to vague and elastic definition.
OF
What is law? No one seems to know. Or, rather, every-
body seems to know; and each defines the term to suit him-
self, and then wonders why others do not agree with him.
To the physicist, law appears simply as the definition of a
constant relation. By this he means that certain sequences
and relations have been observed in the phenomena of nature;
and the rule expressing those sequences or relations he styles
a law. Given certain facts of force and environment, the
formula which states the invariable consequence is a law.
So the physicist knows no exception to the rule of con-
tinuity. He discovers no wandering from the beaten path.
In an innumerable mass of incidents, brought under scientific
observation, he finds a sure and unvarying rule. He formu-
lates it and calls it a law. To the physicist, law is inexorable.
It excludes all moral elements. It admits of no exceptions.
To the philosopher, whose field is all knowledge, law pre-
sents itself under an aspect still different. Not dealing with
definite and ascertainable phenomena, but ranging through
the fields of empty abstraction, the philosopher suits himself
and indulges his own caprices and fancies while he discourses
and dogmatizes about nature and her laws. So the literature
of the law of nature presents a mass of muddy speculation.
759018
4
In different bodies of literature we find law variously
conceived as:
1. A rule of action.
2. An expression of a constant relation in the inorganic
world.
3. A rule of right conduct.
4. A rule addressed to all mankind by nature.
5. A regulation of civil conduct imposed by political
authority.
6. Further, law is conceived by some thinkers vaguely as
force and energy; and
7. By others yet as the "Infinite and Eternal Energy
from which all things proceed," or God himself.
Hardly is any other word or conception confounded in the
speculations of philosophers with the personality of the
Creator.
Whatever in national customs and institutions could not.
be referred to any other source, the Romans ascribed to Rom-
ulus, and the English to King Alfred. The Wall Street
gambler refers whatever mystifies him to the dark and malign
policy of Jay Gould; and our modern philosophers save
themselves the fatigue of clear thinking and exact writing
by referring every puzzling phenomenon to the vague in-
fluence of what they call law. Law, they tell us, is a rule of
action: it is the principle of life: it is force: it is God.
The uncritical public does not, it is to be feared, properly
locate the sources of the law.
Whence comes the law? The crude and simple notion of
the superficial observer is that it emanates from some legis-
lative hall. It is created, a perfect and finished product, and
imposed on man by some external authority.
A little study in historical jurisprudence is all that is
necessary to show that law is the product of development-of
evolution. It results from the slow and gradual unfolding of
5
national life. It has its origin in the necessities of mankind:
it first manifests itself in rude neighborhood customs; its first
promulgation is by some kind of judicial authority; sanction
is given to it by a court of justice; and, when its change and
development have ceased, it takes on the final form of a statu-
tory enactment.
Much of the misconception on this point comes from the
strange fancies generally prevalent regarding the world's
great legislators. The Mosaic, Solonian and Decemviral
codes are crudely supposed to be the products of single legis-
lative acts. The Corpus Juris Civilis and the French codes
are vainly imagined to be the original works of Tribonian
and Napoleon. Study, however, discloses the fact that national
bodies of law have never been constructed out of entirely new
materials, but have been invariably formed out of the tissue of
pre-existing rules and institutions. And so it happens that,
not only in democracies, but under every form of govern-
ment, each individual citizen is a law-maker, and is respon-
sible with his fellows for the existing state of legislation.
Law, as viewed by the jurist, is "a rule of civil conduct
prescribed by the supreme power in the state, commanding
what is right and prohibiting what is wrong."
Positive law, which is the province of jurisprudence, is a
rule addressed to an intelligent human being by an intelligent
human being in a relation of authority in an independent
political society. Law must have coercive power or sanction
to secure its enforcement. It must, therefore, reflect the
moral judgment of the bulk of the people in the sovereign
state where it is promulgated.
This sanction, or coercive power, is of the very essence
of law. Law without a sanction is a misnomer. The jurist
recognizes the moral element in law. Of this the physicist
takes no account. Physical law is self-enforcing. It carries
its sanction with it.
6
The sovereign body enacting law must, therefore, have the
power to compel obedience by visiting punishment on trans-
gressors. And not only must it have the power thus to vindi-
cate its commands, but it must have the disposition to do so.
Otherwise, the so-called law will be a dead letter, of which
there are many examples on the statute-book of nearly every
religious and ecclesiastical organization.
A candidate for membership in the Church agrees to be
governed by rules which he knows there is no disposition to
enforce. To him they are not law; they lack sanction. They
are as nothing, and do not act as a stumbling-block to the
practically wise man. The law, then, is in a condition of con-
stant flux and change, in accordance with the development
and dislodgment of those convictions which prompt to the en-
forcement or the ignoring of written rules.
The practicing lawyer is held by some superficial thinkers
to be responsible for the crime and maladministration in the
community. With equal propriety, we suppose, the clergy
might be held accountable for the infidelity of the age, and
physicians for the epidemics which occasionally appear.
It is seriously urged that no lawyer has a right to represent
a client or a cause that may happen to be in the wrong. But
how is the lawyer to know that his client is a scoundrel or
that his suit is hopeless? Who can tell the end from the
beginning? Shall he reach his conclusion from a one-sided
inquiry?
Audi alteram partem is the rule which limits the proce-
dure of the court. Shall the attorney be less impartial in
his investigation?
But he ought to know his client is a liar! True, so far as
it goes. But, after seeing and hearing his opponent, he may,
perhaps, conclude that the latter is a more confirmed liar than
his own client.
But he should know the law so as not to undertake a case
7
that is bound to fail. True; but who does know the law?
Not all the judges of the United States Supreme Court. For
dissenting opinions appear in about one-third of the reported
cases.
Truth can only be ascertained by sincere and fearless
inquiry. It cannot suffer from the honest zeal of the advo-
cate. And these propositions apply as well to questions of
fact as to questions of law.
Why ask an attorney to prejudge a case and decide his
own client to be in the wrong without hearing the other side?
Why hold him responsible for a miscarriage of justice, as
if he were the only officer of the court, and as if there were
no judge and no jury? Shall he usurp their functions? The
public has called him to no such responsibility.
The whole body of the people is responsible for the state
of the law and its administration; the people which elects
judges and prosecuting attorneys; which supplies the grand
and petit jurors and chooses the officers who select these
jurors. The whole body of citizens can force a reform in
judicial methods, in answer to the demand of public senti-
ment expressed at the ballot-box.
There is also much prevalent misconception on the subject
of legislation as a remedy.
Enthusiastic moral reformers, in blissful ignorance of the
origin, development and application of law, and in calm re-
liance on the almighty arm of the state, solve all social ques-
tions by providing what seems to them to be suitable statutory
enactments. Extending the domain of written legislation is
all they deem necessary in order to cure the ills of humanity.
The unsoundness of these ideas, so far as the United States is
concerned, becomes manifest at once to any careful student
of our practical politics. For some great purposes, such as
diplomacy and coining money, the United States is one
nation-one sovereign body politic: for other purposes, such
8
as the regulation of marriage and divorce, each individual
State may legislate independently of the Federal authority and
of the sister States.
In general, it is true that one uniform rule of municipal
law prevails over the whole territory of a single State. One
central authority in the commonwealth is charged with the
responsibility of enacting law; but, for the purposes of en-
forcing law, the territorial unit is not the State, but the county.
And this feature is characteristic of Anglo-Saxon civilization.
In New England the town, in Louisiana the parish, and in
New York the county, has an autonomy in administering jus-
tice, which is of the very essence of local self-government, or
home-rule. The people of the county elect their own judicial
and executive officers-the district attorney or other public
prosecutor, the sheriff, county clerk and county judge. These
officers select, summon and advise the jurors, both grand and
petit, in criminal as well as in civil procedure. And this au-
tonomy of the county is one of the most fondly-cherished of
all our American institutions. Nor do the signs of the times
indicate any popular distrust of these agencies, or any purpose
on the part of our people to substitute for them a system of
State or Federal superintendence.
While jurors continue to come from the body of the
county, while public prosecutors are elected by the citizens of
each district locality, while the constabulary force is appointed
on the principle of home-rule, just so long will the enforce-
ment of written statutes be as rigid or as loose as the discre-
tion of each district body politic demands and approves.
Our space permits reference to but one more of these
popular fallacies. Proof in courts of justice is often conceived
as demonstration. Now, demonstration can be reached only
in mathematics and physics. In ordinary judicial investiga-
tions we can get no nearer to truth than a moral probability.
This is the necessary result of the available means of proof,
9
viz.: documents which may be forged and witnesses whose
memories are always infirm, and who have been known to lie
on great occasions.
We note, then, the following misconceptions of law quite
generally entertained:-
That it is an expression of ultimate right; that it has its
origin in a legislative enactment; that it can be enforced in a
community notwithstanding public sentiment may be against
it; that it can create capital, fix the rate of wages, limit the
hours of toil, and suspend the operation of the law of supply
and demand; that it is the antecedent and cause of public
opinion, instead of being the last thing to yield to the pressure
of advancing civilization.
As against these mistaken notions, we sum up the results
of our present studies, as follows:-
Law is a rule of civil action defined and enforced by pub-
lic authority. It is a product of the gradual unfolding of
national life and character; first appearing in mercantile and
neighborhood customs; first announced by judicial authority;
and taking on its final form in statutory enactment. Without
the power and the disposition to enforce it, law loses its char-
acter as such and becomes a mere moral precept or a dead
letter. Legislation is ordinarily powerless as a cure for social
ills. The practical lawyer is necessarily a partisan, and for-
tunately so for the cause of justice. Maladministration in
public affairs is not solely attributable to the rascality of
attorneys, but is necessarily incidental to the whole mass of
social corruption to which all classes contribute. Courts of
justice have to deal with the weakness and wickedness of
humanity, and hence judicial proof never attains to mathe-
matical demonstration, nor reaches a higher degree of certainty
than moral probability.
LECTURE II.
THE NATURE OF LAW IN GENERAL.
THE
HE origin of law, like the origin of language, is a subject
that it is hardly profitable to discuss. Still, no service
can be more valuable than dispelling the illusion that law
proceeds directly from the creative hand of the parliamentary
legislator.
The masterly analysis of Austin cannot safely be applied
to the crude systems of archaic jurisprudence, while its sub-
stantial accuracy may be at once admitted as regards the
politer nations of the Western World. To Austin, law is of
the nature of a command enforced by a sanction or penalty
directed by the force of public authority. In the far East, as
Sir Henry Maine shows, the law's only sanction in many cases
is a general public judgment which condemns the transgressor.
The Austinian philosophy has no word of explanation for the
adoption of one rule of law as against another by any given
community: What is law? is a question of fact rather than
of reason, a question more of history than of ethics.
The problem of legal classification is one not readily
solved in a satisfactory way. The ideal distribution and co-
ordination of the various topics of legal doctrine are yet to
appear.
Law can be classified with great simplicity with regard to
historical origin; and with equal clearness as respects external
form; but with considerable difficulty in the more practical
point of its subject-matter.
11
For useful purposes the alphabetical method of classifica-
tion admits of little improvement: dictionaries and digests
make profitable employment of it.
Blackstone's famous work treats the whole body of English
law under four heads: rights of persons, rights of things,
private wrongs and public wrongs. The absurd title, rights of
things, resulted from a mistranslation of the Latin word jura,
which Hale and other predecessors of the great commentator
rendered rights instead of laws. The distinction between
public wrongs and private wrongs, however simple it may
seem on first examination, becomes more difficult after careful
study. No breach of private contract is without its influence
on parties not privy to it. Every repudiation of an honest
debt, every failure to meet an obligation to one's neighbor
fairly and squarely, is a blow at the system of credit which
underlies our modern society and business world; and its
bad effect, in an infinitesimal degree, perhaps, reaches to every
member of that society. In like manner it can be shown that
no crime is so far a wrong against the public as not to fall
with crushing weight on some one particular individual.
New offenses are being added yearly to the catalogue of
crimes which it is not pretended are any more distinctly
public now than they were formerly.
That useful distinction between the substantive and the
adjective law recalls about the only instance where the pon-
derous and uncouth nomenclature of Bentham has been adopt-
ed or even tolerated by later jurists. By substantive law we
mean the law of primary rights; while by adjective law we
understand the law of remedial justice. The right of private
property shall be respected, is a rule of the substantive law;
the law that convicts the thief and throws him into a dungeon
is the adjective law, the law which defines sanctioning rights.
When we come to consider the form of the law we are
confronted with the great question of codification, a question
12
on which both jurists and practical lawyers are hopelessly
divided. What advantage has the statute over the law of
judicial decision? It may be admitted that the statute is
plain, distinct and certain; that it acts prospectively; and,
when in the form of a code, is easily promulgated. In all
these respects it is obviously superior to judge-made law, which
is vague and uncertain, acts retrospectively, and, owing to the
prolixity of judicial opinions and the great number of books
of reports, must always remain a dead letter to the public at
large.
On the other hand, it is claimed that in a progressive com-
munity law must always take on the form of adjudged cases.
Law is really created by adjudication. Judges deliberately
legislate and enact new rules. Constitutions cannot restrain
them, for those very constitutions are subject to judicial
examination and construction. So, in an exact sense, the Con-
stitution of the United States is as really unwritten as is the
English Constitution. Continuity in the development of a
legal system necessitates a reliance on the power of judicial
legislation. Codes cannot sepersede the necessity of frequent
appeals to the courts. All history shows that comprehensive
enactments of statute law are apt to be followed by a flood of
judicial decisions expounding and limiting them.
We are living in an era of code-making. The New York
Code of Procedure has practically been adopted in a majority
of the States and territories of the Union. The Revised
Statutes of this State have also been extensively copied in the
West. Civil codes are in force in several Southern and West-
ern States. The English have commenced to revise their
statutes and to test the value of codes by trying them first on
their Indian subjects.
The most historic of ancient codes, if we except the pen-
tateuchal jurisprudence, are the Twelve Tables of Rome (about
450 B. C.) and the Corpus Juris Civilis (about 530 A. D.).
13
Of modern codes the most famous are the Code Napoleon,
dating from the first years of this century, and the Code of
Louisiana, which is practically a republication of that cele-
brated work. In our own day the labors of Mr. Justice
Stephen, author of the Indian Evidence Act, deserves mention;
and the name of our fellow-townsman, Mr. David Dudley
Field, is justly celebrated the world over for his valuable
work in codifying the law of New York and in reducing the
whole body of international law to statutory form.
It is to be regretted that there is no substantial agreement
between writers as to the scope of certain departments of legal
science, such, for example, as the law of contracts. We find
no authoritative nomenclature, and the most frequently re-
curring words and phrases are used in an almost infinite variety
of signification. This makes classification under the head of
subject-matter a very difficult task.
Law can well be classed as political and private. Political
law treats of the structure and function of government and
governing agents, and private law includes the rest of muni-
cipal jurisprudence, which may be subdivided into the law of
persons (status) and the law of property, obligations and pro-
cedure.
Particular care should be used to discriminate between the
different uses of the phrase civil law. This term is used in
contradistinction to ecclesiastical law; it also signifies the
non-military law, and the non-criminal law; and, lastly, it
is the classic designation of old Roman law.
Select sentences from well-recognized authorities in defini-
tion and characterization of law are collected in the appended
note.
NOTE.
LAW.—“Her seat is the bosom of God; her voice is the harmony of the
world; all things in heaven and earth do her homage, the very least as feel-
ing her care, and the greatest as not exempt from her power."-Hooker.
"Juris præcepta sunt haec: honeste vivere, alterum non lædere, suum
cuique tribuere."—Inst. I., i. 3.
14
Nam quod quisque populus ipse sibi jus constituit, id ipsius proprium
civitatis est vocaturque jus civile, quasi jus proprium ipsius civitatis."—Inst.
I., ii. 1.
Jurisprudentia est divinarum atque humanarum rerum notitia, justi
atque injusti scientia."—Inst. I., i. 1.
"
Municipal law is properly defined to be "a rule of civil conduct pre-
scribed by the supreme power in a state, commanding what is right and pro-
hibiting what is wrong.”—Blackstone's Commentaries, Introduction, p. 44.
“The matter of jurisprudence is positive law: law strictly so called—that
is, law set by political superiors to political inferiors."
"A law, in the literal and proper sense of the word, may be defined as
a rule laid down for the guidance of an intelligent being by an intelligent
being having power over him.”
Every positive law, or every law strictly so called, is set by a sover-
eign person, or a sovereign body of persons, to a member or members of the
independent political society wherein that person or body is sovereign or
supreme.”—Austin.
“Les lois, dans la signification la plus étendue, sont les rapports néces-
saires qui dérivent de la nature des choses; et dans ce sens tous les êtres ont
leur lois; la Divinité a ses lois; le monde matériel a ses lois; les intelligences
supérieures a l'homme ont leurs lois; les bêtes ont leurs lois; l'homme a ses
lois."-Montesquieu, L'Esprit des Lois I.,
·
Municipal law is "the body of rules by which the supreme power in a
state is guided in its governing action."-Pomeroy, Municipal Law, § 17.
LECTURE III.
THE PUBLIC LAW OF NATIONS.
THE
HE public law of nations is not older than the De Jure
Belli ac Pacis of Hugo Grotius. Since that time it
has received a wonderful development and expansion. It is
even now in process of change. The forces that have effected
this evolution have been variously conceived and stated by
publicists. Most assuredly the leading influence has been the
Christian spirit of our age. For more exactly, perhaps, than
any other department of legal doctrine, international law is a
truly Christian code. Second only to Christianity as a force
modifying the existing body of doctrine affecting the rights
and obligations of independent sovereign states we would
place influences of a politico-economical character. A careful
survey of the reforms in international law that have been
wrought during the last two generations will reveal the fact
that they have all been planned and executed in the interest
of trade, and we may safely say in the interest of a greater
freedom of international trade.
Exclusive dominion of the high seas, so long asserted by
England and other great states, has been universally relin-
quished. Tidal streams and navigable rivers have been opened
up to the commerce of the world. Points of strategic inter-
est, like the Danish Straits and the Bosphorus, have been sub-
jected to the united regulation of the great powers. Diplo-
matic and consular stations have been set up among all the
mercantile nations. International congresses have sought to
bring about the most accommodating adjustments of the dif-
16
ferent currencies. And the conscience of mankind has been
aroused to the necessity of finding a solvent of international
disputes elsewhere than in the appeal to brute force.
Considered in the light of John Austin's analysis, this body
of doctrine is not law, and principally because it has no sanc-
tion. If we look carefully for some sanction we may find it
in war.
But war as a penalty is not inflicted on a trans-
gressor as a judgment of an impartial tribunal: it is rather a
means of self-redress. Our pious ancestors may have regarded
it as an appeal to the God of battles. In these days of un-
faith, however, the greatest nations of the world seem to agree
with Napoleon, that God is on the side of the heaviest artil-
lery. Some philosophers may see in the moral judgment of
mankind, and the self-respect of individual states, a sufficient
sanction to the rules of international law. But all history
goes to prove the essential accuracy of the truth illustrated at
such length by Mr. Herbert Spencer, that the moral sense of
an organized society is not more acute than that of the average
of its citizenship. In fact, it is impossible to read the his-
tory of diplomatic intrigue, bluster and finesse and not to note
the fact that the greatest of states often manifest the petty
jealousies and indignation that distinguish a school-girl's
treatment of her first love adventure.
If the lack of sanction degrades this body of doctrine be-
neath the level of jurisprudence, it at the same time exalts it
to the plane of ethics. Ethics, then, it is; and Christian ethics
too; for heathen nations are strangers to this enlightened
code, whose domain is the Western World.
By a state or nation we signify an independent, sovereign
political society. Some writers add that the society must be
organized to establish justice—a definition which would ex-
clude the Barbary and other piratical states from the privileges
of sovereignty. Such a limitation would necessitate our
ignoring de facto political conditions and withdrawing our
17
recognition of equal sovereignty as residing in states whose
politics we could not approve.
Other authorities qualify the definition of a state or nation
by confining it to some limited territory. No inconvenience re-
sults in the study of modern politics from this qualification, for
men now unite in political action under the bond of local conti-
guity. But ancient law knows nothing of territorial sovereignty,
a doctrine which did not fully appear till the times of feudalism.
The bond of early societies was not territorial propinquity, but
kinship in the flesh. This kinship was real in many cases, or
was simulated when it was deemed wise to extend the body
politic by including new recruits. Thus the nomadic Abraham,
with his household and kinsmen, making treaties and levying
war on kings, presents a picture of Oriental sovereignty with-
out definite geographical bounds. And in our own country the
aboriginal red men, with whom we make treaties and against
whom we wage war, illustrate nationality under the bond of
blood-relationship and without the territorial tie.
The attributes of statehood may be summed up in the
word sovereignty, which includes independence and equality.
Sovereignty may be defined in the harsh phrase of Austin as
follows: "If a determinate human superior, not in the habit
of obedience to a like superior, receive habitual obedience
from the bulk of a given society, that determinate superior is
sovereign in that society, and the society (including the
superior) is a society political and independent" (Province
of Jurisprudence, Lecture VI.). In any such sense as this
sovereignty is incapable of legal limitation. Wherever, then,
we find legal limitation on the exercise of political powers
there cannot be sovereignty. The most prominent and com-
manding characteristics of an independent political society are
the power to make war and conclude treaties. The different
States in the American Union, never having had and never
having exercised the power, are not sovereign in an exact
18
sense of the word. The people of the United States, enacting
constitutions, securing independence and equality by the
sword, and negotiating international conventions, are thus
shown to be the depositaries of sovereign power.
Even under the much despised Articles of Confederation
the distribution of the powers of government was such as to
negative the idea of State sovereignty. The single redeeming
feature of that form of government was that, in terms of law, at
least, the whole business of diplomatic and foreign relations
was given over to the central authority, and the several com-
monwealths were expressly excluded from membership in the
sisterhood of States.
In an ethnological sense the United States is not one people,
is not a nation. For we lack homogeneity in language, in re-
ligion, manners and institutions. We have no common race
origin, and have had no continuity of race life.
When we consider a sovereign state as a moral agent, and
international law as a code of usage voluntarily adopted by
civilized communities to govern them in their mutual inter-
course, we can well understand that no more important study
in political science can well engage the attention and thought
of man.
The incalculable sacrifice of life and treasure in
war, and the general acceptance in the Western World of the
Christian doctrine of the Fatherhood of God and the Brother-
hood of Man, have led many to contemplate the possibility of
perpetual peace, the condition of which the late laureate sang
in the greater "Locksley Hall":-
“Till the war-drum throbbed no longer, and the battle-flags were furled
In the Parliament of man, the Federation of the world.”
Perpetual peace has not been simply a poet's dream. States-
men and philosophers have endeavored to secure it through
arbitration and international congresses and courts. Henry
IV., St. Pierre, Jeremy Bentham and David Dudley Field
have all labored with this end in view. The successful appeal
!
19
to arbitration for the settlement of disputes between Great
Britain and the United States has wonderfully stimulated
thought in this direction. Of the various plans proposed for
obviating an appeal to arms, it may be remarked that they all
proceed without interruption to one point, the point of adjudi-
cation. The defect in international law resulting from the
lack of an authoritative exponent of its principles is overcome
by special agreement and common consent in a given case.
All the different constitutions of international tribunals are
lacking in the enforcing power. If a state that has submitted
a controversy to such a court will not accept its judgment the
only recourse is war. True, no one nation is powerful enough
to withstand the world; but universal war looks like a poor
start towards perpetual peace. Not all issues between states
are susceptible of solution through arbitration. So in private
law, a dispute over accounts or a boundary line might well be
referred to the arbitrament of a third party, while the justice
of an assault or a libel would admit of no such adjudication.
Both nations and individuals must vindicate their own claim
to dignity and respectability. Otherwise they will be with-
out influence for good, and will soon become the victims of
the violence and greed of powerful rivals. Admit all we
hear said in these days about the horror of war and its awful cost,
the truths remain that in the evolution of human societies
great empires have issued from sanguinary conflicts; that
political subordination is an indispensable condition of material
and economic progress; that centralized national authority
always results from both civil and international strife; and
that war stimulates the cultivation of personal bravery and
contempt for bodily pain which make a hero of a gladiator
and a popular idol of the champion of the prize-ring. In the
words of the Rev. Dr. Theo. D. Woolsey: "War has some-
times been the restorer of national virtue, which had nearly
perished under the influence of selfish, luxurious peace
(International Law, § 116).
""
LECTURE IV.
INTERNATIONAL LAW IN TIME OF
PEACE.
THE
HE law of nations may be considered as public and as
private. Public international law treats of the relation
of state to state in peaceful negotiation, and in armed dispute.
The legal relations of a private individual, as determined by
different bodies of national law, form the subject-matter of
private international law. This title of the subject seems as
poorly selected as two others, which have also acquired recog-
nition—namely, intermunicipal law, and the conflict of laws.
This interesting body of rules is of special value to an
American, for two reasons. First, our unique political con-
stitution, with dual sovereignty lodged in Federal and State
authorities, presents to us commonwealths foreign to one
another for many purposes. Secondly, the tide of immigra-
tion, set so strongly towards our shores, brings to us annually
hundreds of thousands of foreigners who are strangers to our
law, and the protection of whose interests demands an
acquaintance on the part of some members of the profession
with the English and Continental codes.
The law of place concerns itself with such questions as this:
Which of two or more conflicting systems of national legisla-
tion is to be applied to the determination of a pending issue?
Thus we have to deal with the law of the place of the con-
tract, the law of the domicile, the law of the forum, and the
law of the place where the property under consideration is
situated.
21
The law of the domicile settles all questions of status.
By status we mean the aggregate of all the rights and duties
of an individual. Questions of legitimate birth, of lawful
wedlock, of full age, of legal capacity, are questions of status,
or of the rights of persons. The devolution of the personal
effects of a decedent is determined by the law of decedent's
domicile. Savigny defines domicile as the centre of one's
jural relations, a definition that has the merit of elasticity.
Hardly any single test will determine domicile in all cases.
The most generally received rule demands actual residence,
animo manendi. An American minister, resident abroad, does
not lose his domicile by accepting a post in the diplomatic
service. Nor does a private citizen by traveling abroad. Nor
does the President of the United States by taking up his abode
in the White House.
The law of the place of the contract, in general, deter-
mines the construction to be put upon it by the courts. In
some States it is held that the place where a contract is made
is the locus contractus. In New York the better rule is that
it is the place where the contract is to be enforced.
The lex fori controls as to all matters of legal remedy and
practice. All such questions as the issue of attachment, in-
junction, or other provisional remedy; the term of court at
which trial can be had; the limitation of time for the com-
mencement of a civil action, are determined by the law of the
place where the court sits.
Personal property has no situs, but follows the person of
its owner. Debts on contract, loans, etc., are available to the
creditor wherever he can find the debtor. But real property
is governed, as to alienation, by deed or will, and as to descent,
under the laws of intestate succession, by the laws of the
place where the real property is situated. The Supreme Court
of the United States often asserts a rule of general commer-
cial law which is in sharp contrast with the decisions of State
22
courts in the place where the contract was made, or the obli-
gation incurred. But as to realty it defers to the law of the
place where the property in litigation is situated.
Agreements between nations are called treaties or conven-
tions. The earliest of modern treaties were written in Latin,
the common tongue of Christendom. French is now the lan-
guage of diplomacy. Treaties may regulate permanent con-
ditions, such as international boundaries, or may treat of
specific interests, such as trade-reciprocity, for a brief
period. The Constitution of the United States gives
the treaty-making power to the President, who is to act
by and with the advice and consent of two-thirds of the
Senate (Art. II., § 2).
The latter body, not having any
organs of communication with foreign powers, cannot take
the initiative in negotiating an international compact. It
can only act on the finished work of the President, by con-
firming or rejecting it. It should be noted that there is no
limitation of the treaty-making power, or restriction of it, to
any class or classes of treaties. The reasonable inference is
that all treaties known to diplomatic history are within the
range of this power, including reciprocity treaties, of which
we have now several illustrations. Not long ago the constitu-
tionality of a reciprocity treaty was gravely questioned, on the
ground that it necessarily limits the powers of the House of
Representatives to find ways and means of providing revenue.
Under the treaty-making power Florida was purchased of
Spain in a manner the constitutionality of which has been
sustained by the Supreme Court (American Insurance Co. v.
Canter, 1 Pet., 511).
A most interesting question for speculation arises from a
consideration of the unlimited range of the treaty-making
power. It relates to a possible wide expansion of the domain
of Federal jurisprudence through the exercise of this power.
The field of national legislation is limited by the grant of
23
power to Congress, which is quite specific and confined to
certain subjects mentioned in the Constitution. The extent
of the judicial authority is also determined by the consti-
tutional grant of jurisdiction in certain cases named. But in
the matter of concluding binding treaties, which become the
supreme law of the land, we find no qualification of the
authority of the President and the Senate.
The agents of diplomatic intercourse are styled ambassa-
dors or ministers. The United States does not send an am-
bassador, the diplomatic officer of highest rank, inasmuch as
the ambassador represents the person of his sovereign, and no
person is sovereign in this country. The style and title of
our representative at the Court of St. James is envoy extra-
ordinary and minister plenipotentiary. However, European
countries cheerfully concede to our republic equal rank with
the most powerful monarchies. Diplomatic officers enjoy
many privileges which may be summed up under the heads
of inviolability and exterritoriality. The mission of the
foreign minister is to maintain the peace and happiness of
nations. To qualify him for this high duty he must be free
from all fear and constraint. He is, therefore, not subject to
the civil or criminal law of the place where he resides. This
immunity extends to his family and his official staff, his secre-
tary, chaplain and other servants. Exterritoriality is a fiction
of law under which a minister's official residence is regarded
as the very soil and territory of his fatherland.
The literary style of diplomatic dispatches should be polite
and deferential. Diplomatic language, according to Talley-
rand, is often designed to conceal thought. But not always.
It is interesting to recall the advice of the Bourbon King to
his ambassadors: "If they lie to you, lie still more to them."
In the United States the authority to receive and send
ambassadors and other public ministers and consuls is lodged
with the President.
24
Consuls represent not the sovereignty of the nation by
whom they are commissioned, but rather its commercial in-
terests. Their business is with the affairs of individuals, ship-
masters, and traders. They need not be citizens of the
country that they represent. A consul's authority to act
comes from the government of the country where he resides,
and is called an exequatur. A recent extension has been given
to consular authority through treaties establishing courts in
heathen and Mohammedan countries for the cognizance of
suits to which Christians may be parties.
The diplomacy of to-day is much concerned about the
balance of power. All the great powers are interested in
maintaining the present equilibrium and repose of European
governments. Non-European communities, except Turkey
in Asia, are not affected by this principle. It is immaterial
in what way the dangerous aggrandizement of a state is
brought about, whether by conquest in arms, success in diplo-
macy, or by legitimate inheritance under legal rules; in all
cases the peace of Europe is threatened, and demands a
restoration of the pre-existing condition. It is not proposed to
restrict that growing influence which is the necessary result
of commercial supremacy. The rule is rather aimed at ter-
ritorial dismemberments and acquisitions, and at dynastic
intrigues which may unsettle the established equipoise of
European powers.
We can here find a convenient place for the discussion of
the Monroe Doctrine. The law of the balance of power, we
have seen, is restricted in its application to European coun-
tries. It aims at securing the independence of existing states
by humbling the arrogant and defeating the designs of the
ambitious and the self-asserting. It is really an illustration of
the universal right of self-preservation. So on this continent
Americans, having established popular government at great
cost, are prepared to assert that this country is the home of
25
civil liberty, and self-protection demands that any further
attempts of European powers to colonize here, or to introduce
monarchical and aristocratic absolutism, will be regarded as
acts hostile and unfriendly to the United States. Although
this doctrine, first formulated by Mr. Adams, the Secretary of
State under President Monroe, has never been officially adopted
as the avowed policy of our government, it has, nevertheless,
been in accord with the spirit that nourished our sympathy
with the rebels against Spanish despotism, and rebuked the
insolence of Louis Napoleon in setting up a Hapsburg prince
as Emperor of Mexico.
LECTURE V.
INTERNATIONAL LAW IN TIME OF
WAR.
EACE is the normal state of society and war is a dis-
PEACE is the nonmed .
turbance of that condition. Such is the useful assump-
tion of the publicist. But war has been so far the main staple
of popular history, which consists of hardly anything but the
dates of battles and the succession of kings. The sociologist,
too, finds militant activities persistent in the development of
dominant races, and industrialism only as the very latest out-
come of high civilization. From the earliest recorded history
of the race to our own day, in all nations and communities,
war has been the one pursuit which most dignifies man, and
the avenue of approach to the most exalted station among
one's fellows.
Will
Will the nations of the earth learn war no more?
reason ever take the place of the sword in the solution of
national disputes? What are the present indications and
tendencies?
The nations of Europe are maintaining armies and build-
ing navies on a larger scale than ever before. The customs
and usages of war are undergoing change, so that its hardships
are being mitigated, its asperities softened, and its spirit
Christianized. War is being ennobled as the politest art that
can engage the attention of man. Old barbarities are being
abolished, and we have reached the point where opposing
generals in the field display the utmost extravagance of
chivalry and all the elegance of manner that distinguishes a
1
27
Parisian salon. Hospitals and ambulances are exempted from
hostile attack; libraries, museums and cathedrals are preserved
from bombardment; chain-shot, bar-shot, and all missiles and
explosives which cut, bruise and disfigure without doing
more effective execution, are discarded.
Now, what is the certain issue of all this effort in the
direction of ameliorating warlike conditions? Is it not to
make war a still more dignified and truly Christian means of
determining international differences? Was not war less con-
genial to the taste of man when it was waged with all its
barbaric horrors?
Two theories have been propounded with reference to
war and its conditions, viz.: first, that war is merely a state
of non-intercourse commercially; and, secondly, that war sets
the hand of every subject of each belligerent against the hand
of every subject of the other belligerent. It is hard to recon-
cile existing usages of the most civilized people with either of
these theories. Unquestionably, the better view is that war
is a condition of non-intercourse between the citizens of one
state and the citizens of the other belligerent; that the actual
conduct of hostilities in the field is limited to combatants, and
that non-combatants (with certain exceptions) are exempted
from the stress of arms. But the levée en masse, where the
whole population turns out in self-defense; and the rule which
subjects the merchandise of a non-combatant trader to seizure
and sale, seem reconcilable with the second theory only.
The rule of strict neutrality commands non-intervention
in the quarrels and internal revolutions of other states. Still
there are exceptions to this rule, and interference may be
justified to protect the balance of power or to suppress bar-
barous practices on Christian subjects. Considering the con-
dition of chronic revolution in the Latin-American states, and
the struggle there for larger liberty which necessarily enlists
our sympathy, it is interesting to note the law that limits our
28
intervention in such cases. Belligerent rights of revolted
subjects can lawfully be recognized when the movements
against the government reach the proportions of actual war.
Absolute independence and political sovereignty should not
be conceded till the mother country has ceased all efforts to
subdue her rebellious subjects.
While on land private property, not contraband of war,
belonging to a non-combatant citizen of a belligerent country
is free from hostile attack, on the sea all the merchandise of
peaceful commerce is lawful prize. This is because the profits
of trade provide the sinews of war. Another reason for the
rule is sometimes urged-namely, that while on land the visit
of a hostile army might strip a citizen of his every means
of subsistence, the confiscation of his ship simply deprives him
of his luxuries. Since wheat, petroleum, dressed meats and
live stock are the objects of foreign commerce, there seems to
be less force in this suggestion now than formerly. The long
prevalence of piratical practices, dating from the beginning of
shipping and continuing till our own times, may explain the
difference of view taken by publicists on the subject of larceny
on land and larceny by sea.
The development of international law has followed out the
course of economic necessity. Public law, as well as private
law, imposes on disputants the obligation of conducting their
quarrels so as not to damage innocent third parties. "So use
your own as not to injure another," says the old common law
maxim. In like manner the law of nations seeks to give to
belligerents as large a freedom as possible in destroying the
property of one another, but requires that the commerce of an
innocent third party, a neutral, shall be protected as well as
may be. The extent and limit of this immunity of neutral
property from hostile invasion have been the subject of much
learned disputation for many generations. From the begin-
ning, two conflicting principles have contended for recognition:
29
First, the fiction of exterritoriality which fastens on a ship and
cargo the nationality of the vessel's flag: if the flag be neutral,
the ship and cargo are free. Without further qualification, this
fiction would lead us to free ships, free goods, and permit
belligerents to carry their goods in neutral bottoms in order to
evade capture. The second principle is that, third parties
being out of the conflict, each belligerent may prey upon the
commerce of the other belligerent and capture his property
whatsoever and wheresoever. This rule would not protect a
neutral vessel from search for hostile goods. In process of
time both these principles have received important modifica-
tion. The tendencies of our day are towards a universal
acceptance of the maxim, free ships, free goods. Dr.
Woolsey characterizes this as "a gain for humanity and a
waiver of justice" (International Law, § 187).
At the close of the Crimean War, the great powers, at the
Peace of Paris in 1856, issued declarations in substance as
follows:-
1. Privateering is abolished.
2. The neutral flag covers enemies' goods, with the ex-
ception of contraband.
3. Neutral goods, except contraband, are not liable to
capture under an enemy's flag.
4. Blockades in order to be binding must be effective.
The United States did not accede to these declarations.
When asked to do so, we declined to surrender the right of
privateering, but expressed our willingness to join the great
powers in their declaration of principles if they would exempt
all peaceful commerce of non-combatants from capture at sea.
Our true policy is, doubtless, not to relinquish the right of
privateering. A privateer is a vessel owned by a private
citizen who secures from his government in time of war letters
of marque and reprisal by which he is commissioned to prey
upon the merchantmen of the other belligerent, to capture
心
​30
them upon the high seas, and to have them condemned by the
courts as lawful prize for his own profit. It is objectionable
as stimulating the passion for plunder and as not conducive
to effective discipline. The true American foreign policy is
to avoid entangling alliances and diplomatic complications
with European states, thereby rendering unnecessary the
maintenance of large armies and navies. A standing army is
justly regarded by republicans as a menace to civil liberty.
The meagre proportions of our Federal military and naval
establishments ought rather to be a source of pride than of
humiliation to every patriotic American. With a sea-coast
of thousands of miles to police in time of war, the navies of
the world would be wholly insufficient.
in war.
Contraband signifies any objects of wealth suitable for use
Neutrals have no right to convey contraband in their
ships. Their merchant vessels are, therefore, liable to search
in time of war to ascertain whether there has been any wrong
of this kind done.
A blockade signifies an interruption of maritime commerce
in certain ports. During the Napoleonic wars Europe had
an era of paper blockades, which were merely declarations
of cabinets to the effect that a blockade had been established.
The Berlin and Milan decrees of the Emperor, answered by
the English orders in council, affected to put all Europe in a
state of blockade. Such abuses of power in war led up to
the later doctrine that only effective blockades should be
regarded as lawful. An effective blockade is one sustained
by the presence of a navy sufficiently powerful to prevent
entrance to and exit from the blockaded port.
During the late war for the Union, certain Confederate
officers, Mason and Slidell, took passage on an English packet
vessel, the Trent, on their way to Europe to negotiate a loan.
They were forcibly removed from the Trent by the com-
mander of a United States gun-boat. This was defended on
31
the ground that the men were dispatches-living dispatches.
International law recognizes no such doctrine. The United
States was entirely in the wrong; but the affair was useful in
committing England to the advocacy of neutral rights.
All mankind is interested in the establishment of justice
and in the punishment of crime. The territoriality of crime is
now recognized in the codes of all modern nations. In ancient
law crime was a corporate or family act, and its punishment
involved not only the principal offender, but his wife and
household. No body of law prevails, otherwise than by
courtesy, outside the territorial limits of the sovereign power
that enacted such law. The extradition of criminals rests, then,
entirely on international comity, or on the stipulations of
treaties. The United States has made many such treaties.
Political offenses are not included among crimes for which
extradition is allowed. Only the more heinous wrongs, recog-
nized as such by the universal conscience of man, admit of
this remedy, such as murder, rape, forgery, arson, and the more
malignant type of felonies.
The Treaty of Washington, in 1871, between Great Britain
and the United States marks an epoch in diplomatic history,
and in the history of the world as well. Three questions were
disputed between the two countries. The Alabama Claims
were referred to the Geneva Tribunal, which made an award
of $15,500,000 in gold to the United States. These claims
arose out of England's disregard of the obligations of a neutral
during the war for the Union in allowing gun-boats for the
Confederate service to be built, equipped, and provided with
excessive hospitalities in British ports. The Halifax Com-
mission decided the fisheries dispute against the United States
and awarded England $5,500,000. Emperor William of Ger-
many determined the San Juan boundary controversy in favor
of the United States. Anglo-Saxons have thus set a precedent
in favor of referring international disputes to the arbitrament
of reason rather than resorting to an appeal to the sword.
2
LECTURE VI.
EQUALITY BEFORE THE LAW.
THE
HE Constitution of the United States is a fetich; so is
the Declaration of Independence. Both have been
idealized by a loving people. Much good has come from this
and but little harm. They are the great charters of American
liberty. They are the symbols of the spirit of liberty which
still pervades all institutions truly American, whatever cynical
philosophers may say to the contrary.
They are not alike, but in some respects are radically differ-
ent. The Constitution contains little sentiment, and the
Declaration contains much. The Constitution is a business-like
document, and herein is its great merit. It makes no mention
of God. Neither does a promissory note nor a bank draft.
Some good Christians refuse to vote till this omission has been
supplied, and verbal mention is made of the Deity in the
fundamental law. How this is to be accomplished, unless vot-
ing is done by somebody, is too profound a problem for their
simple minds. God is practically recognized in the preamble,
which states that the Constitution was ordained to establish
justice and to secure the blessings of liberty.
It was not mere literature that saved this continent from
English misrule and wrought out the liberties of a free people;
else we would give the glory to Jefferson and Morris. The
letter was but the formal expression of a mighty and universal
purpose. Liberty cannot be achieved by a paper constitution.
Law, unsustained by public sentiment, is a misnomer: it is a
literary curiosity, that is all. Hence the powerlessness of law
33
as a remedy for social ills, and the disheartening spectacle of
law defied and nullified by local sentiment.
America is supposed, by the average schoolboy, to have
been settled by fugitives from religious persecution, by those
who sought the inhospitable shores of New England for the
purpose of worshiping God according to the dictates of
conscience. Little allowance is made for the convicts trans-
ported to America as a penal colony, and for adventurers
coming from the lower orders of European society.
In like manner the fathers of the republic have been
idealized by posterity. This is particularly true of Washington,
whose record as soldier, statesman and political writer is not
critically studied by the masses. The public will not be
content with an honest picture of the Father of his Country.
The Washington of popular fancy is a pure myth.
It is a simple thing for us, who are Christians and who
approve the work of our Revolutionary ancestors, to think of
them too as Christians; and Christians, perhaps, they were, in
the largest and best sense of the word; but many of them were
Christians outside the church. Such a man was Franklin; such
a man was Jefferson; such a man was Thomas Paine. All
were profound believers in God: all were skeptics as to
Christianity.
The theories of Jefferson as to natural and inalienable
rights—the right to life, liberty and the pursuit of happiness
-are French in their origin. Jefferson and Paine found
these ideas in the writings of Rousseau. Rousseau had taken
them from the speculations of the Greek stoics, who contem-
plated the state of nature as that best adapted to human
society. This state of nature was conceived as having existed
at the dawn of civilization, and was regarded as the starting-
point rather than the goal of humanity. Perfection, then,
was to be reached, not by evolution, but by revolution.
This theory of society can never stand the light of histor-
34
1
ical investigation. What are natural rights? Who gives
them? Who enforces them? Who defines them? Against
whom are they asserted? Are duties correlative with rights?
If
so, are not the natural rights of others important limitations
of our own liberty? If the world owes a man a living, who
is the world? Are not we-that is, all of us-the people?
And must we not, after working hard to support our own
families, continue on in our fatigue and work for our neighbor
and his family? But the state should guarantee every man a
living. Well, who is the state? Simply all of us.
The pub-
lic treasury may pay the cost. But whence come these funds?
Every cent comes out of our own pockets, and at heavy cost
too, for the tax-gatherer has to be paid for his services. Say,
if you will, that every man has a God-given right to life, liberty
and the pursuit of happiness: but understand well that the
world owes no man a living, and that God's law prescribing
a struggle for existence and the survival of the fittest is still
unrepealed.
It is also said that all men are created free and equal.
Aristocratic rank and kingly authority by right of birth alone
are as clearly a departure from God's revealed law of pure
equality as ever slavery was. What is this equality? Simply
equality before the law. Shall we divide universal wealth
among the units of the human race? Equality would not
subsist during the minute of time devoted to the division.
Before midnight some Esau would have sold his birthright
for a mess of pottage, and some gambler would have staked
his last dollar on the turn of a wheel or the cast of a die. On
the morrow the new tenant of the cradle would grasp for his
brother's share and the silent occupant of the grave would
have left his wealth to his kindred.
Equality can never be secured by human law, for human
nature presents every shade and variety of intellectual and
moral character. Political equality simply means the equality
35
of all before the law-that is, in theory of law, but not
necessarily in a court of justice. In the court of justice
the poor man issues a summons to his rich neighbor to
answer for a wrong done. The poor man, in simple ig-
norance, pleads his own cause; the rich defendant retains
the leader of the bar as his representative. The poor man
cannot secure expert witnesses; the man of wealth knows
well that such testimony can be had in the market under the
law of demand and supply. The man of poverty looks upon
a jury-box filled with his creditors. His rich opponent finds
those same men, and the judge, too, perhaps, his dependents,
his pensioners, his debtors. What are the chances?
is justice? What a mockery is the angel-figure, blindfolded
and holding the scales at even balance! While the great
Creator may have made all men equal, it is incontestable that
in this evil world, wealth and intelligence have a legal and
moral power of which no dogma of political philosophy can
strip them.
Where
Americans believe in progress in most things. But, some-
what singularly, in the domain of politics they seem to think
they have struck out a perfect thing. The rule of the people
has been established, they think, forever. Representative
government, based on more or less frequent elections, they
regard as the summum bonum. No American questions the
perpetuity of our constitutional institutions. The English,
he thinks, are bound to come to them in another generation;
and monarchy will surely vanish, as it did in Brazil, without a
struggle.
The Czar will stop persecuting the Jews, the Kaiser will
disband his army, the English Church will be disestablished,
the Irish will have home rule. All this is sure to come, but
not now. Nor will it come because some politician writes the
law in a book, but because the voice of the people will some
day demand it. For all government rests on the consent of
36
the governed, and the majority wield the brute force of the
nation. There is no such thing as absolute monarchy. When
Ahab wanted to secure Naboth's vineyard he had to resort to
subterfuge and chicane. When David coveted Uriah's wife
he was put to much pains to get rid of his rival. Then there
is the dread of assassination. How many Czars have died a
natural death during the last two hundred years? In the
meantime those who know not liberty will despise it, and kings
and emperors will continue to reign over supine and down-
trodden peoples.
sense.
We are not one people in an ethnological or historical
We have no common race origin, although the founda-
tions of our government were laid by Anglo-Saxons. We
have as yet no common tongue, although the Seven Years'
War secured the dominance of the English language on this
continent.
We are one people because we are a liberty-loving people.
Love of liberty is the centripetal force in this land. And if
danger threatens our republic it will be because of a decline
in this sentiment.
It is fashionable, nowadays, to find in the immense immi-
gration of foreigners to this country a menace to our free
institutions. Is there not a greater danger in the ignorance
of law and the contempt for law too often displayed by native
Americans? They are ignorant of law, its source, definition
and sanction who ascribe all public iniquity to the derelictions
of courts and legislatures. They have a contempt for law and
a disregard of civil liberty who commit crimes against the
ballot by suppressing the votes of lawful citizens, or by
falsifying the returns of elections. They have a contempt for
law who place Judge Lynch in the seat of the constitutionally
appointed magistrate, or who expedite the determinations of
lawful tribunals by the bullet of the assassin in open court.
Not to philosophers, then, do we look for the constitution
37
of an ideal state, for the republics of the Grecian dreamers
were full of slaves and destitute of homes, and More's Utopia
and the pretentious Constitutions of Carolina only exhibit the
folly of mankind for the instruction of posterity; nor yet to
the givers of law and the draftsmen of constitutions, for law,
without a sanction based on the sense of right prevalent in the
community, becomes a by-word and a reproach; but to a
liberty-loving people, a people who are not the creatures but
the creators of constitutions and laws, not servants in a despo-
tism, but masters in a constitutional republic.
+
LECTURE VII.
LEADING DOCTRINES OF CIVIL
POLITY
HE science of politics is not an exact science: it is a
THE
moral science. It deals with subtle and variable phe-
nomena not always obvious to a superficial view. Some en-
thusiastic students of political philosophy claim that the struct-
ure of an ideal commonwealth can be reared by the learned
and patriotic. Doctrinarianism in politics stands for the
principle of an ultimate philosophy of government which may
guide us to the best possible regulation of public affairs.
These advanced thinkers would at once drive all tyrants from
their thrones, scatter all lords of parliament, disendow all
state churches, liberalize the elective franchise to the point of
a universal and unfettered suffrage, and inaugurate the era
of popular government among all the nations of the earth.
The opportunist, as distinguished from the abstractionist,
deals with the problems of his own day, leaving the constitu-
tion of an ideal republic to the dawn of the millennium. Is
there a benignant monarch, and a contented, prosperous and
progressive people? Opportunism leaves the king upon his
throne. Are there classes in society, brutalized by centuries
of serfdom, ignorant and vicious? The opportunist hands
them no ballot.
The abstractionist aims at ideal conditions: the opportu-
nist at the best possible now. The abstractionist will not listen
to compromise, while the opportunist recognizes in compro-
mise the key to most all political problems not solved by rev-
39
olution. The history of American politics is the story of
compromise. The Constitution is a standing monument of
the most historic compromises. It was framed by statesmen,
acting for all time because they lived for their own day and
generation. A strong Federal government could never have
been established except by the spirit of compromise which
induced the States that had western lands to cede them to the
Union to pay the debt of the war; which induced the greater
States to concede to the smaller States equal suffrage in the
Senate; and which induced the North to bear with the slave-
trade for twenty years, to provide for the return of fugitives
from labor, and for a representation based in part on servile
population. Whatever occasion there may be now to deplore
the tendencies towards centralization of power, there was
none in 1788, when treaties were ignored, the public creditor
unpaid, currency degraded so as to become a by-word, the
Congress without a quorum, the treasury without a dollar,
trade without life, law without a sanction.
Elementary school-books classify governments as monarch-
ies, oligarchies and democracies. This is simple but worthless,
inasmuch as the only test of discrimination employed is the
number of those who rule, whether one, a few, or all. Another
and a more important question is, How are the people ruled?
John Stuart Mill, answering his own question, says that
the best kind of government is a representative government.
Assuming that he speaks of the most highly developed and
freest people of the Western World, who can appreciate good
government and can sustain the burdens and responsibilities
of citizenship, we must all agree with Mill. Such a represent-
ative government may be a constitutional monarchy like
England, or a democratic republic like the United States.
Constitutions are limitations on the power of the majority;
they are enacted for the protection and security of minority
rights, for the majority are often heedless of constitutional
40
:
restrictions. Our government is not a pure democracy, where
nothing can prevent the immediate realization of the will of
the popular majority. And well it is for us that it is not
such a democracy, for a more intolerable despotism can hardly
be conceived than the despotism of a mob. With us consti-
tutional institutions stand out against a fickle populace and
thwart its purposes. Among such institutions we may men-
tion the Senate, the Presidential veto, and the United States
Supreme Court, all of them being essentially non-democratic.
Constitutionalism may not be sententiously defined, but it may
be accurately described as a form of government which rests
ultimately on the will of the people expressed at frequent
intervals through elections. The scholar in politics, or rather
the student of political books, would introduce constitution-
alism into Russia and other despotically-governed countries—
and this without sufficient inquiry as to whether recently
emancipated slaves can appreciate the rights of citizenship or
meet its responsibilities. A ballot in the hands of a man who
cannot read it is a menace to civil liberty.
Modern constitutional governments recognize the import-
ance of the tripartite division of political power, and the exclu-
sive exercise of legislative, judicial and executive functions by
distinct and independent departments. This distribution of
governmental powers was noted in the political works of
Aristotle, but it attracted no large degree of attention until
expounded and illustrated with great fullness by Montesquieu
in the Spirit of the Laws. This work, while a collection of
valuable sociological facts gathered with great industry from
all portions of the world, and a most important contribution
to the literature of comparative and historical jurisprudence,
was practically written in eulogy of the English Constitution.
The distinguishing feature of the Roman imperial system was
that the emperor had himself elected to all the republican
offices, and under the title of princeps had all political powers
41
concentered in his own person. Oriental despotisms are simi-
larly characterized. Free political conditions are approximated
to the extent that the separation of legislative, judicial and
executive powers becomes more perfect and complete. Of
the three departments the legislative may be said to be the
most important, inasmuch as it holds the initiative, and law
must be enacted before it can be interpreted and enforced :
the executive is the most strikingly prominent, on account of
the unity in the office and the higher dignity associated with
it: while, in America, the judiciary enjoys the unique advan-
tage of a life-tenure, and exercises the transcendent power of
declaring legislative and executive acts null and void in case
they are unconstitutional.
The separation is more apparent than real. In England,
the Lord Chancellor has primarily judicial authority in equity;
but he presides in the Chamber of Peers, and is a member of
the cabinet, coming in and going out with the party to which
he belongs. The British ministry is brought to office by a
majority of the House of Commons, and is dismissed from
office by an adverse vote in that house; it has been character-
ized as an executive committee of the Commons. Every
member of the cabinet sits in Parliament, and the most im-
portant legislation debated every session is that proposed by
the government. The Crown, too, is a part of Parliament,
and has an absolute veto on all legislation: this power of royal
veto has not been exercised since the time of Queen Anne, and
inasmuch as the Queen rules by a responsible ministry that is
in favor with the House of Commons, whatever measure passes
that body has the royal assent. The House of Lords is, in
appearance, a legislative body. Three of their lordships, out
of a body of about six-hundred and fifty peers, constitute a
quorum. The lords spiritual (bishops and archbishops) have
seats in the upper house by virtue of their office, and form
about the most conservative element in English politics. Im-
42
peachments of civil officers made by the lower house are tried
by the Lords, sitting in a judicial capacity. The House of
Lords is also the court of last resort. In the United States
impeachments are also found by the lower and tried by the
upper house. In New York, prior to the Constitution of 1846,
the State Senate was a part of the old court of errors, the
tribunal of highest competence. The executive has quasi-
legislative functions in the authority to communicate to the
legislature from time to time and to recommend measures for
passage. It has judicial functions in the exercise of the
pardoning power. Then, in a large sense of the term, the
judiciary has the power of legislation. The larger part of our
law is judge-made law. This power of judicial legislation
was contemplated from the beginning. It is interesting to
note that the whole subject of maritime and admiralty law
was given over by the Constitution of the United States to
the Federal authority, as represented, not in the legislative de-
partment, but in the judicial department (Art. III., § 2).
In America the judiciary holds a higher rank than it does
in England or on the European continent. As England has
no written constitution, it is not always easy to distinguish an
act of Parliament which is a constitutional law from an
ordinary act of routine legislation. So the deliberate setting
aside of a statutory enactment by judicial authority is some-
thing foreign to European ideas. In Germany much of public
administration which we entrust to the judiciary is assigned
to the army. The judiciary is conceived by German jurists
as an adjunct to the executive. In fact, the distinction be-
tween executive and judicial duty seems bolder on superficial
view than it does on profound investigation.
Another institution of representative governments which
has found almost universal favor is the bicameral system, or
the organization of the legislature into two houses. This was
taken from the model of the English Parliament, and has been
43
introduced into every State in the American Union: even
some municipal councils are similarly organized. The upper
house is the more conservative and dignified; the members
are generally elected for longer terms, are of greater age,
represent larger constituencies, and are consequently fewer in
number. All bills are required to pass both houses. The
lower house holds the purse-strings of the nation, and bills
providing ways and means for raising revenue must originate
in that house. The American Senate is the monument of a
compromise between the great States and the small States.
Under the Articles of Confederation there was no Senate, no
President, no Supreme Court. Each State had one vote.
While representation in the lower house was based on popu-
lation, it was provided that each State should have two
senators, and that while the Constitution might be otherwise
amended, no State should be deprived of its equal suffrage
in the Senate without its own consent (Art. V., § 1).
Some judicious writers, such as John Stuart Mill, have
opposed the bicameral system. Benjamin Franklin also disliked
the idea of an upper house, and his ascendency in Pennsylvania
long maintained a legislature of but a single chamber in that
commonwealth. Historically, the upper house is the older,
the knights of the shire not appearing in Parliament till the
time of Simon de Montfort, and the present organization not
having been lawfully recognized till 1295. From the very
beginning of the king's council we find the barons and the
ecclesiastics in attendance.
The English House of Lords is doubtless a moribund body.
Had the Peerage Bill of two centuries ago been adopted by
the Commons, and the royal prerogative of creating new peers
been abolished, probably the upper chamber would have dis-
appeared as a factor in politics before this. Its only hope for
a long career of useful service lies in the power of the Crown
to recruit its members by new creations. It may temporarily
44
resist the will of the people; but it cannot do so permanently.
More than once, the Crown, on the advice of his minister, has
swamped the upper chamber with enough newly-created peers
to change the balance of power. If the Lords reject a bill
passed by the Commons, and Parliament is dissolved, and a
new House of Commons is elected on the issue of the rejected
measure, and the newly-elected House of Commons passes
substantially the same bill, it is no longer constitutional for
the peers to interrupt the passage of the act. But to the
barons of England, rather than to the lower orders, we are
indebted for Magna Charta, for the organization of the House
of Commons itself, and for a resolute assertion of English
liberties throughout the centuries. To the barons of England
we are indebted for the important limitations of royal preroga-
tive which have made England a free country. And to the
inactivity of aristocratical influence after the War of the Roses
may be attributed the subserviency of Parliament during the
period of the Tudor monarchy.
LECTURE VIII.
THE POLITICO-ECONOMICAL FORCE IN
CONSTITUTIONAL DEVELOPMENT.
THE
HERE are in the United States two opposed schools of
constitutional interpretation. Some of the Jeffersonian
Democrats have gone to the extreme point of denying any
proper national character to our Federal government and
exalting the individual State above the Union in every case of
conflict. State sovereignty, nullification and secession are the
logical outcome from such theories. The Hamiltonian Feder-
alists, on the other hand, assert the complete sovereignty of
the national government, urge a liberal instead of a strict
construction of the organic law, and favor national banks and
a protective tariff. The several States are regarded by them
as in a condition of permanent subordination to the authority
of the United States.
It is a trite remark that the capital difference between the
British Constitution and the Constitution of the United
States is, that the one is traditional and the other written.
There is an element of truth in this, as the Constitution of the
United States is a certain literary document, beginning with
the preamble and ending with the fifteenth amendment. But,
in a historical and sociological sense, the American Constitu-
tion is something more and something less than the written
instrument already referred to: it is a plan of government
distinctly the product of evolution, and even now in a process
of change.
Many forces have been instrumental in working out such
46
development, as, for example, foreign war and internal strife,
the decay of aristocratic sentiment, and the growth of indus-
trialism. It is impossible to overestimate the influence of the
politico-economical force in the evolution of political constitu-
tions. It is a force that acts on all men and in every condition
of political environment, in a manner not urgent merely, but
imperative.
The Articles of Confederation, however severely they may
be condemned as the groundwork of an established government
in time of peace, actually met the demands of war and carried
the country through the Revolution successfully. This may
not have been owing to any excellence in the Articles them-
selves; still, while they stood the strain of war, they could not
meet the exigencies of peace. The first step towards the
Constitution was taken in obedience to a call of economic
necessity. Trade languished under diverse fiscal regulations
and competing schedules of customs-taxes. The call to the
convention at Annapolis was specifically for the purpose of
taking into consideration the state of trade. And in the
Philadelphia convention, however hotly other points were
controverted, all agreed in the wisdom of a policy which gave
to the Federal authority the power to regulate foreign and
interstate commerce, and to lay and collect customs, duties,
imposts and excises.
The economic doctrine of protective taxation has been
attacked as unconstitutional. Certainly there is no word in
the organic law which seems to justify legislation in the in-
terest of one class as against another; of manufacturers, for
instance, as against agriculturists. All revenue raised by tax-
ation must be applied "to pay the debts, and provide for the
common defense and general welfare of the United States
(Art. I., §8, 1). But the power to lay and collect duties is
given in the most general and unrestricted language. Clearly,
it is a fair argument that the framers of the Constitution meant
""
47
to include in duties all systems of customs-taxation known to
the fiscal policy of the most enlightened nations of the world
at that time. While Hamilton, to whom the first tariff act is
to be credited, was a pronounced Federalist, the leaders of the
Democratic-Republican party for many years, including
Jefferson and Jackson, were avowed protectionists. The
Supreme Court of the United States has repeatedly sustained
the constitutionality of protective legislation.
The Constitution says nothing about a national bank; nor
does it in distinct terms grant any authority to Congress to
create a bank or other corporation. But Congress, in response
to the call of economic necessity, has chartered by special acts
two United States banks, and in these later years has provided
by general law for hundreds of national banking associations.
Banks have been found in England and elsewhere to be useful
fiscal agents, enabling governments to borrow money, pay debts,
and collect taxes. The constitutionality of such enactments
was sustained by the Supreme Court in McCulloch vs. Mary-
land, 4 Wheaton, 316.
The purchase of Louisiana was condemned as without war-
rant in the Constitution. Mr. Jefferson himself favored such
constitutional amendment as would validate his irregular
proceedings. The New England Federalists opposed the
President's policy, fearing lest the admission of new States
would threaten their ascendency in the national councils.
Hamilton was statesman and patriot enough to see that the
purchase of Louisiana was a matter of vital importance. The
favorable moment afforded by Bonaparte's distress might
never have returned if allowed to pass unimproved. The
Supreme Court has rested the legality of the purchase on the
unrestricted treaty-making power of the Federal government
(Insurance Co. vs. Canter, 1 Peters, 542).
Our present point is that, whether constitutional or not,
the acquisition of Louisiana was necessary to our progress, if
48
not to our continued existence as a nation, and this because of
economic forces that asserted themselves in an irresistible way.
In 1789 the United States was only a slender column of States
situated on the coast. Later discoveries attracted settlers to
the rich soil of the Mississippi valley. Agricultural produce
could not be carted over the mountains to the seaports. A
highway to the ocean was needed. The Mississippi River
system offered such an outlet to the sea. But a foreigner
held the mouth of the river. To the burden of customs-
exactions the danger of a blockade in time of war was added.
So the purchase of Louisiana was an act of statesmanship of
the highest order. In such a crisis, what is a paper consti-
tution? What is the national flag? What are traditions,
symbols, and sentimentalities when wealth, comfort, and
happiness are at stake? (See Draper's History of the Civil
War, Vol. I., p. 205).
The War for the Union unquestionably involved dogmas
of political philosophy: but the purely economic doctrines of
slavery and the perpetuation of slavery as a legally recognized
institution were also referred to the arbitrament of arms.
Vice-President Stephens saw this, and in his speech of March
21, 1861, labored to show that the Constitution of the United
States was built on sand, inasmuch as it assumes an equality
of races, and takes the ground that slavery is wrong. The
chief corner-stone in the new edifice of Southern Confederacy
was the great physical and moral truth that slave-subordination
of the negro was his natural and God-established condition
(McPherson's Political History of the United States, p. 103).
The Southern clergy fully sympathized with the slave
barons, and bent all their learning to justify slavery by means
of Scripture quotations. Our New England ancestors just as
easily found biblical authority for the burning of witches and
the hanging of Quakers: Mormon polygamy is even now
defended as an Abrahamic and divinely established institution.
49
In the famous case of Dred Scott vs. Sandford, 19 Howard,
393, the Supreme Court solemnly decided that slavery existed
under the recognition of the Constitution, and that property
in slaves was protected by the Bill of Rights.
That slave labor is inefficient and uneconomical is readily
proved. It is always reluctantly rendered, owing to the slave's
lack of economical impulse; slaves must, therefore, be watched
and worked in gangs in order to economize the expense of
supervision; labor in gangs is only possible in a few agricult-
ural industries; slave labor is hence lacking in versatility,
and consequently in skill; slave labor, not admitting of
rotation in crops, exhausts the soil; new virgin soil must be
continually added to the slave-cultivated area, or the system
itself must perish.
The Emancipation Proclamation, issued by President
Lincoln as a necessary and fit war measure, is an excellent
illustration of our present point, viz., that law yields with
everything else to the hard economic necessities of every
changing hour.
Hardly has a more serious question in economic science
ever been addressed to a legislative or judicial mind than that
presented by the legal-tender acts. Many think that the
greenbacks saved the country in time of war: others are con-
vinced that the legal-tender feature of the treasury notes
hurt the national credit and reduced the purchasing power of
the paper money. The United States Supreme Court in
Hepburn vs. Griswold, 8 Wallace, 603, decided that the legal-
tender acts were unconstitutional. Within the short space of
one year the same tribunal sustained the constitutionality of
these acts in Knox vs. Lee, 12 Wallace, 457. The vote was
four to three in Hepburn vs. Griswold, and five to four in
Knox vs. Lee. The composition of the court had in the
meantime been altered by the appointment of two new justices,
whose views regarding legal tender were known to the Presi-
50
dent and the Senate before the appointment was made. It
was deemed necessary to save the greenbacks at any sacrifice
of constitutional principle: and this is what was done. Pro-
fessional students of economic science generally agree that
the principle underlying the legal-tender acts is fallacious.
But we have here to deal, not with that economic fallacy, but
with the juristic truth, illustrated by the history of this
legislation, that the sense of right and necessity prevalent in
the whole community must always determine the direction of
legal development. (See also Juilliard vs. Greenman, 110
U. S., 421).
We have already seen that the whole subject of admiralty
and maritine law is reserved by the Constitution to the
Federal judiciary. This law is to receive a progressive de-
velopment, of course; but not at the hands of the legislature.
The courts alone have the power to direct and limit that
development. The maritime law is cosmopolitan, not English.
It is older than the common law, older than the major part of
the Roman civil law, many of its rules originating in the
Mediterranean ports centuries before the Christian era, and
remaining substantially unaltered to this day. In England
the jurisdiction of the admiralty is limited to tide waters.
This limitation was early recognized by our Supreme Court in
the case of the Thomas Jefferson; but in the later case of
The Genessee Chief, 12 Howard, 454, the former ruling was
reversed, and navigability rather than the tidal character of
water was accepted as the test of admiralty jurisdiction. Here
we have an illustration of both heredity and environment as
factors in the evolution of law. In England all navigable
waters are tidal: in America the great lakes and the extensive
river system of the Mississippi are not tidal, while they are
navigable. The English rule, thus unadapted to our territory,
was wisely broken down.
Another illustration of the progressive unfolding of public
¡
51
law, even under a written constitution, is afforded by that large
mass of adjudications by the Supreme Court on the subject of
the power of Congress to regulate commerce (Art. I., § 8, 3).
The commerce subject to such regulation is foreign, interstate,
or with the Indian tribes. The views of the court of last resort
have undergone many changes during the generations of its
existence. No one can reconcile all the deliverances of the
Supreme Court on this subject. The most liberal construction
has been given to the clause under consideration. Commerce
has been held to include all traffic and transportation, and to
comprehend persons as well as property among its objects.
In order to regulate commerce, Congress can lawfully build
light-houses, make a coast-survey, or equip an expedition to
view a transit of Venus or to explore the region of the Dead
Sea.
When we say that constitutional development is influenced
by economic forces, we do not mean that the text of the
written law is necessarily altered. Public law, in this country
no less than in England, is the product of steady develop-
ment. Congressional legislation, the principles and maxims
of executive policy, and judicial decision have all been
with us potent instrumentalities for effecting reforms in
political jurisprudence.
LECTURE IX.
STUDIES IN CONSTITUTIONAL AND
POLITICAL HISTORY.
HE constitutional and political history of the United
THE
States is continuous with that of Great Britain. It dates
back of the Declaration of Independence; back of the May-
flower; back of the English Revolution; back, even, of
Magna Charta. The United States as a nation is older than
the Constitution; older than the Articles of Confederation;
older than the Continental Congress. Our national existence
dates back to the first appeal to arms in the long series of
events which culminated in the treaty of 1783. The spirit
of liberty was unquestionably brought to American shores by
the Puritans, who represented the noblest and most patriotic
of the Englishmen of their day. The era of the great revolu-
tion in England is, perhaps, the most interesting period in the
world's history to the student of free political institutions. In
these movements the Puritans were leaders. Many remained
in England to solve the problem of free government there;
others came to this country to establish civil liberty on a new
continent. The regicides found a refuge in Judges' Cave,
near New Haven, the avenues of which city bear the names
of the men who slew Charles I. Even Cromwell actually
embarked for America, and only accident prevented his expa-
triation. The early law of colonial New England is pervaded
throughout with the puritanical spirit. Englishmen, then, set
up English government in America; a system of government
53
already highly developed, and even then in process of change
through revolution. The best in English politics we kept;
the useless we discarded. We were fortunate in having no
traditions and but little to forget. For kings and lords and
established church we had no place. The English parlia-
mentary system, like the English language and the common
law, was our just heritage. Our ancestors had lived under it,
had aided in its development, and were now appointed to give
it a new career under the most favorable circumstances.
The Revolutionary War resulted in political centralization.
All war, both foreign and internal, has that effect. In fact,
hardly anything but war could have kept the colonies together
under such a form of government as the Articles of Confeder
ation.
Our second war with Great Britain had a similar issue.
Prior to 1812, the right of secession, as a legitimate constitu-
tional proceeding, was universally recognized in the United
States. The Mexican War was waged by the Federal power
in the interest of the extension of slavery, and resulted in the
consolidation of the power of the slaveocracy at Washington.
The story of this war forms the darkest chapter in American
history. In brief, certain freebooters, led by desperate adven-
turers, started out from Louisiana and formed a colony on
Mexican territory, where they inaugurated a series of political
intrigues and military expeditions in the interest of precipi-
tating war between Mexico and her revolted subjects, and in
the further interest of invoking the intervention of the United
States and securing the ultimate annexation of Texas to the
Union. The object was to promote the extension of the slave-
cultivated area and provide the way for the introduction of
at least four new States into the Union, whose eight represent-
atives in the upper house of the national legislature would
maintain the influence of the slave barons in American politics.
Political centralization was also the result of this struggle.
1
54
The war of the Rebellion successfully established the doc-
trine that the Union can coerce an individual State. During
the long period of reconstruction the party in power, in
full control of all departments of the government, was not
hampered in its policy by any considerations of a constitu-
tional character. President Lincoln, at least, openly avowed
his purpose in case of necessity to transcend the limits of the
presidential authority as defined by the fundamental law.
It is fashionable now to speak of the New South; to recall
the fact that the war is over; to apologize for the action of
the North; to defend the policy of the Confederate leaders and
to assert that self-interest would necessarily have prompted
the best of men to do exactly as they did. The present is
regarded as an era of good feeling and of fraternization be-
tween the lately belligerent sections. A republican form of
government is conceived to mean the absence of all Federal
supervision of State politics, even including the election of
President and Congressmen. At the same time the South
exhibits its interest in fraternization by the open suppression
of the negro vote and by passing laws making the birthday of
Jefferson Davis a legal holiday.
Other than sentimental considerations are involved in this
great history. In the first place, nature is inexorable and has
presented us with a territory so configured by mountain chains
and river systems as to render the selection of Mason and Dixon's
line or any other parallel of latitude as an international bound-
ary a thing utterly impossible. Had the South secured its
independence, lines of fortresses along the frontier, vast stand-
ing armies, complex fiscal arrangements and customs-service
would have entailed such frightful expense and provoked
uch necessary conflict as to render another war and a new
conquest of the South inevitable.
Making all allowance which Christian charity can prompt,
giving all possible credit to the Confederates for patriotic
55
sentiment and military valor, the fact remains that slavery is
a ruinous system of labor from the politico-economical view;
that it can never compete with free labor in any line of in-
dustry, and that it can never be applied with success to mercan-
tile and manufacturing employments. The war was fought
on the distinct issue of the perpetuation of the system of slave
labor. Further, it remains true that the Confederates under-
took to destroy the fairest and freest form of government that
in the providence of God has ever risen among men, and to
establish in its place a constitutional system which contained
the elements of its own destruction. The Confederacy was a
rope of sand. Almost any form of government, however
weak, can cohere during the stress of war; but although the
principle of State sovereignty was distinctly asserted and the
right of the Confederacy to coerce a State was distinctly neg-
atived, the South was compelled to resort to a conscription
which barely spared both the cradle and the grave. Settle-
ment of these economical and political questions, as we hope
forever, makes the war for the Union worth all it cost.
な
​Ultra patriots are apt to take an inaccurate view of these
important struggles. In the Revolutionary War the king's
forces had little difficulty in holding the most important cities
on the coast, and in particular Boston, Philadelphia and New
York. The royal troops, though in large part mercenaries,
were well equipped and disciplined. It is questionable
whether more than once the patriot army ever stood before
the fire of the British regulars. About every one of the long
successions of brilliant American victories chronicled by patri-
otic historians was followed by a retreat. The conquering
cohorts of General Washington fell back steadily from Long
Island to Yorktown. Two great disasters befell the cause of
the king's arms. Burgoyne at Saratoga, cut off from the base
of his supplies, surrendered to General Gates without a
struggle, preferring captivity to starvation; Cornwallis at
56
Yorktown, similarly circumstanced by the adroit manœuvres
in which the French admiral participated, gave up his sword
rather than continue the fruitless effort to conduct a war in
European style on a barren and unsettled continent. Nature,
by the very configuration of the territory, had rendered the
aggressive movement of the European army impossible in
America. In the War of 1812 the most important battle, to
which the fame of General Jackson is due, was fought after
the war was over. The English army, like a bird of prey,
swooped down upon the coast, and finding nothing to steal,
and no one to do battle, burned the Capitol at Washington
and sailed for home.
Too little credit has been given to Thomas Paine for
his services to his adopted country during the Revolutionary
period. Paine is principally remembered in these days for
his infidel publications, consisting chiefly of an absurd work
called The Age of Reason, a book of shocking irreverence
and exhibiting on the part of its author an ignorance which
is lamentable and astounding. Similar themes were treated
by Paine in his Rights of Man, a book published in answer
to Burke's Reflections on the French Revolution. Orthodox
Christians mention the name of Paine with horror and loath-
ing, and lament the fact that Washington and Jefferson were
intimate in their relationship to such a character. Being the
first of the deistical school to appear as a pamphleteer in Amer-
ica, he came to be regarded as the arch-infidel of his era, so much
so that it was considered a pious and praiseworthy task to
falsify his history in the interest, as it was vainly supposed, of
the Church. This prejudice against Paine accounts in large
part for the indifference that has been manifested towards his
contributions to political literature. These latter works, con-
sisting of a series of articles published in the newspapers of
the day and extending from the outbreak of the Revolution-
ary quarrel to 1783, under the nom de plume of "Common
57
Sense," were of transcendent importance in their day and are
likely to remain permanently valuable. Paine was born in
England, where he was never fully appreciated, and on arriv-
ing in America he began to pay off several old scores which
he owed to the English. He posed before the American
public as the champion of liberty; this may have been largely
because he loved liberty, but it was also because he hated
Britain. His literary style is a marvel of vigor and clearness.
He was a born agitator. His persistence and staying power
won him an audience; his theme was American independence,
and his exhortation was to achieve it immediately. Nor did'
he abate the energy of his labors until the treaty of peace by
which England recognized the independence of the United
States. Paine had a constitutional aptitude for political agita-
tion. He went to France at the time of the great Revolution
and became a member of the Constituent Assembly which
framed the first constitution of the Republic. Paine was a
firm believer in God. Bishop Watson, in his Apology for
the Bible, written in answer to the Age of Reason, says:
"There is a philosophical sublimity in some of your ideas when
speaking of the Creator of the Universe."
The most famous of all works dealing with American
political history have been written by foreigners. The first
of these in order of time is Democracy in America, by De
Tocqueville. The author visited America about sixty years
ago and travelled extensively throughout the country. He
was much interested in studying the condition of the blacks,
and his forecast of the political events which wrought out their
cmancipation and their ultimate enfranchisement has given De
Tocqueville the reputation of a prophet. What interested him
most was the New England town, with its autonomy in local
administration. Having no better French word by which to
translate "town,” he employed the term commun. His eulogy
of the township system resulted in the formation of a school of
58
French political writers called Communists, who are not to be
confounded with the reactionary and anarchistic elements of
modern European society; they were merely the champions
of the policy of local self-government. The great power
exercised by the American judiciary filled De Tocqueville
with amazement.
man.
The Constitutional History of the United States, by Von
Holst, in six volumes, has just been finished. It is a
characteristically German work. The author is beyond doubt
more learned in American political literature than any other
His book is a work of immense labor and exhaustive
research. Von Holst discerns two eras in our political history:
first, the era of state sovereignty and slavery; second, the era
of nationality and freedom. He attaches great importance to
the proceedings which led up to the Mexican War and the
annexation of Texas.
The American Commonwealth, by Professor James Bryce,
now a member of the English ministry, is the last of the three
important works on American political institutions written by
foreigners. Professor Bryce has made several visits to the
United States, and has travelled more extensively throughout
the country than any member of Congress or any man in
political life, with the exception, possibly, of General Grant.
His work is in no sense a history, but rather a series of essays,
short and intensely interesting and following no definite
order. A cynical critic might think that the book was written
for the market, so many complimentary things does the author
say about Americans and their institutions. If it were so
written it was certainly a great success. The author is not
pleased with our exclusion of cabinet officers from the halls of
the legislature. Among the most striking differences between
English and American politics, he refers to our lack of a
capital. Washington is certainly no metropolis, nor is New
York a capital in the sense of being a political centre like
59
London, or even Paris. Were the Federal capital located in
New York, and the rule requiring residence in the State one
represents abrogated, there might be secured to the public the
services of some of the most eminent of the lawyers, journalists,
bankers and merchants, who naturally congregate in metro-
politan centres. The American Commonwealth is a sympa-
thetic, hopeful and inspiring work.
LECTURE X.
THE RIGHT OF SUFFRAGE: THE
STATUS OF THE INDIANS.
HE tendencies of the times all point toward universal
THE
suffrage. The franchise has been wonderfully liberal-
ized in England in our own day. Before the great Reform
Bill of 1832, the House of Cominons was a representative
body only in name. Representation in England is based in
part on municipal franchise. American politics presents nothing
analogous to this. A charter by which
A charter by which a borough is organ-
ized contains provision for the return to Parliament of one or
more persons from that corporation. As the voting was not
by ballot, but was viva voce, the electors were few, comprising
only a small fraction of the total population. The great Re-
form Bill of 1832 has been justly styled a bloodless revolution.
By it the House of Commons was made a more truly repre-
sentative body, a body for the first time substantially repre-
sentative of the English people. The "rotten boroughs," so
called, were disfranchised. By this term is meant municipal-
ities wholly in the control, or in the pocket, as the phrase
went, of some great nobleman who always secured the return
of his own nominees. Several great peers of England had
the nomination of dozens of members of Parliament. The
Reform Bill extended representation to the great manufactur-
ing cities, for which there had been most inadequate repre-
sentation, or no representation at all. The representation by
county constituencies in England is like the system with which
we are familiar in the United States. A member of Parlia-
61
ment need not, however, reside in the district that he repre-
sents. He may be returned by several constituencies, and
must then make a choice of one, and a new election is held to
fill the vacancy. For example, if Mr. Gladstone is returned
by both Middlesex and Midlothian, and decides to sit for Mid-
lothian, a new election is held for Middlesex. With us,
Congressmen must reside in the State, but not necessarily in
the district that they represent. The English system secures
to public life the services of distinguished men who would
otherwise be left without seats in the legislature.
One of the hardest problems in practical politics is that
of minority representation. Whom does a member of the
legislature represent? Certainly all those who voted for him;
just as certainly all those who voted against him, besides those
who did not vote at all. The minority may not be satisfied
with the representation of their interests. How can fair
representation be secured? One plan proposed is to aggre-
gate the minorities in various districts and apportion a proper
number of representatives for such an aggregate. Another
method of securing minority representation is to require each
individual elector to vote for a less number than all of the
candidates to be chosen; thus, when three officers, for example,
inspectors of election, are to be chosen, if each voter can
name but two, the minority will not be unrepresented.
As population increases and shifts to new centres, it be-
comes important periodically to re-apportion the legislative
districts. This is done by constitutional direction immediately
after the census, which is taken every decennium. Of course,
such an apportionment should be fairly made in a non-partisan
and statesmanlike spirit. This is, however, seldom done.
An effort is made in almost every case to secure some partisan
advantage by the political party charged with the task of
re-apportionment. An American statesman named Gerry so
distinguished himself in a legislative effort of this kind that
*
62
his name is used as a very synonym for such wicked and un-
patriotic practices. Gerrymandering proceeds on the principle
of making the districts of one's political opponents practically
unanimous, and so arranging the doubtful districts as to leave
a majority, small but decisive, in the interest of the party
framing the bill. The following will illustrate the methods.
of two parties in the work of re-apportionment: Let us take
an area exactly circular, containing one hundred thousand
inhabitants, of whom forty-nine thousand we will assume to
be Republicans and fifty-one thousand we will assume to be
Democrats. Let us further assume that the population is
spread evenly over the entire surface, and further let us assume
that in a smaller circle round the centre are contained ten
thousand Democrats to the entire exclusion of Republicans.
The task is to divide the area contained in the larger circle
into ten election districts. On every principle of fairness the
Republicans are entitled to five districts and the Democrats
are entitled to five. By the process of gerrymandering, the
Republicans can secure nine out of the ten districts; and the
Democrats can secure the whole ten. If the gerrymandering
act were drawn by Republicans, the Democrats would be
given one district at the centre of the area; lines would then
be drawn at equal intervals from the outer circumference to
the inner circle so as to make nine additional districts. These
nine districts would be Republican; the district comprised in
the inner circle would be Democratic. Were the gerryman-
dering act framed by the Democrats, lines would be drawn
from the centre of the circle to its circumference so as to
make ten districts, every one of which would be Democratic.
The Constitution does not undertake to establish any uni-
form rule respecting qualifications of voters for Congressmen
and for President. It leaves this matter entirely to the
various States. Those who in the several States are authorized
by State law to vote for a member of the more popular branch
63
of the State legislature are competent under the constitutional
rule to vote for President. In our early history the right of
suffrage was limited by religious, educational and property
qualifications. At present it is fairly unrestricted. Edu-
cational tests linger in Connecticut, and have been recently
established in Mississippi. Rhode Island, until within a few
years, restricted the ballot to a very few citizens by means of
property qualifications. It is thus left to each individual
State to determine, in accordance with its own views, who shall
vote for President and for Congressmen. Conviction of
felony involves the loss of civic privileges in most of the States.
Ignorance, crime, poverty, sex, religion and alien birth may
be made the basis of exclusion from the right of suffrage.
Not all citizens of the United States can vote for President;
inhabitants of the territories and the District of Columbia
have no such vote. Some who are not citizens of the United
States, but who have declared their intention under the
naturalization laws, are allowed in several of the States to
vote for members of the legislature, thus becoming qualified
under the Constitution as voters for Presidential Electors.
The right of suffrage is not a natural right; it is an artificial
privilege granted directly by the sovereign power on principles
of expediency to those who can most safely be trusted with
the exercise of so important a prerogative. In New York
women are allowed to vote for school commissioners and to
serve as trustees and as members of boards of education. In
many Western States women are allowed to vote at all charter
elections and are eligible to municipal offices. In Wyoming
and in Washington, at least until lately, women have an
absolutely unrestricted right of suffrage and enjoy to the fullest
extent all political privileges existing under the law.
Woman has no natural right according to the United States
Supreme Court to practice law or vote at elections. She is
destined by God and nature, according to recent deliverances
64
of that august tribunal, to the holy and benign office of wife
and mother. Women have been admitted to the practice of
law in various States of the Union. On the application of
Mrs. Bradwell for admission to the bar of the United States
Supreme Court, it was decided that in the absence of Congres-
sional legislation the motion must be denied (Bradwell vs.
State, 16 Wallace, 130). Such legislation has since been passed,
and several women have argued cases in the Supreme Court
of the United States with great ability and satisfactory results.
Long before any adjudication on this question, Myra Clark
Gaines, daughter of General Gaines of New Orleans, a lady
who spent a long lifetime in litigation over her inheritance,
argued a case in the Supreme Court against Daniel Webster,
and actually won an important triumph over that world-famed
advocate. It has been distinctly decided by the Supreme
Court "that the Constitution has not added the right of
suffrage to the privileges and immunities of citizenship."
This doctrine was announced in the case of Minor vs. Appersett,
21 Wallace, 162. The question in the case was, Is a woman,
being a citizen of the United States and of Missouri, entitled
to vote in that State, whose laws confined the right of suffrage
to man?
The status of the Indians involves many perplexing
questions. The United States asserts jurisdiction and full
political sovereignty over all its territory, including Indian
reservations. It has assumed to remove whole tribes of Indians
bodily from place to place westward across the continent. It
regards the Indians as the wards of the nation and as in a con-
dition of perpetual tutelage. They are fed and clothed at
national expense; blankets and cattle are provided for them;
and, too frequently, it is to be feared, firearms and intoxicating
liquors, notwithstanding strict statutory prohibition. Schools
for the education of the Indians are maintained at enorinous
expense, the annual outlay for this purpose reaching hundreds
65
of thousands of dollars. In these schools the practical arts of
trade and manufacture are taught, in addition to the ordinary
subjects of a common school education. Notwithstanding
the Indian is treated in many respects as a person non compos
mentis, in other ways we acknowledge his capacity as a person
sui juris, and accord him the full power of distinct political
sovereignty. The fullness of political sovereignty is best.
recognized by declaring war and making treaties. In both
these ways has the United States recognized the political
sovereignty and equality of Indian tribes (The Cherokee Trust
Funds, 117 U. S., 288).
The North American Indian is fast perishing from the
earth He has no capacity for enlarged civilization. There
are innumerable instances of Indian youths who have learned
the literature and arts of Christian society lapsing again into
barbarism and savagery. They are discontented and heart-
broken as they see the boundaries of their ancestral domains
retreating and narrowing. They have no sympathy with the
spirit of Christian civilization; they cannot appreciate the
dignity of labor. This noble doctrine, on which Western
civilization is founded, is to them a chimera. The Indian lives
for sport, and only the Indian's wife for toil; and even she
fails to understand that equity knows no distinction of sex.
If the present policy of the United States is designed to save
the Indian to the civilization of the future, it is a failure.
Sociologists who have studied the history of civilization, well
understand that humanity cannot step at one stride from the
savage occupations of hunting and fishing to the civilized
pursuits of trade and agriculture. The Indians are under-
going a process of self-extermination. They stubbornly refuse
to summon children into the world who shall be destined to
the hard fate of their fathers. Unlike the negroes of the
South, who readily adjust themselves to the social, industrial
and climatic conditions which surround them, the Indians
66
stubbornly refuse to take any place in the civilization of the
nineteenth century. As a sociological experiment, might not
the Indian be made a herdsman on the ranches of the West,
perhaps for a long series of generations, before the effort is
renewed to interest him in the pursuits of agriculture and
manufacture? Such is the policy urged with much force by
Professor Sumner of Yale College.
THE
LECTURE XI.
THE FEDERAL JUDICIARY.
HE judiciary has a wider range of power in the United
States than anywhere else. It is placed by constitutional
provision beyond the reach of legislative or executive inter-
ference. The tenure of the Federal judge is for life. Judges
can be removed only by impeachment. Their compensation
cannot be reduced during their term of office. "The Judicial
Power of the United States shall be vested in one Supreme
Court, and in such inferior courts as the Congress may from
time to time ordain and establish" (U.S. Constitution, Art. III.,
1). The Supreme Court is thus created by the Constitution,
and cannot be abolished by Congress; but it is organized by
Congress, which means that the number of justices is deter-
mined by that body. The number of justices has varied from
time to time. It is now nine. The salary of the chief
justice is ten thousand five hundred dollars; the salary of each
associate justice is ten thousand dollars. There is no point of
judicial superannuation under Federal law, but any justice of
the Supreme Court, after ten years of service on the bench,
may, on arriving at the age of seventy, retire on full pay for
life. No chief justice has been appointed to that post by
promotion from associate justiceship. The Judiciary Act,
passed in 1789, immediately after the adoption of the Consti-
tution, organized the Supreme Court and the Circuit and
District Courts of the United States. This act also defined
the appellate jurisdiction of the Supreme Court, and section
twenty-five of that act allowed the review of a determination
68
}
of the court of last resort in a State whenever such a decision
involved a question arising under the Constitution, the laws, or
treaties of the United States. The original jurisdiction of the
Supreme Court is limited to cases where a State is a party,
and cases involving an ambassador or other public minister.
The number of such cases is insignificant; practically, the
whole labor of the Supreme Court is spent in the hearing of
appeals. Each justice of the Supreme Court is assigned to a
circuit, which he is to visit at least once in two years. He is
known in the Circuit Court as the Circuit Justice, being
distinguished from the Circuit Judge on whom the burden of
jurisdiction mostly falls. Each State and Territory has at
least one District Court; several have two; New York has
three, known respectively as the Northern, Eastern and
Southern Districts of New York. The judicial power of the
United States extends also over the Territories, the District of
Columbia, and various places in the several States that have
been ceded to the United States as sites for forts, dock-yards,
hospitals and institutions of learning.
The Court of Claims is also a tribunal of Federal establish-
ment sitting at Washington. It has exclusive jurisdiction to
decide cases against the United States. Judgments rendered
in this court are paid at the convenience of Congress, through
the ordinary process of an appropriation bill.
The United States Supreme Court has always enjoyed the
highest reputation, both at home and abroad, for learning,
honor and integrity. Its decisions, particularly on questions
involving international law and maritime jurisprudence, are
highly regarded by foreign tribunals. It has been most fortu-
nate in the personnel of its members. There can be no mis-
take in naming John Marshall, chief justice for thirty years,
as the jurist who has brought most fame to that high court.
John Marshall was a Federalist of the school of Hamilton.
When the Federalists lost the Presidency and the Congress,
69
they retained possession of the Supreme Court, with John
Marshall at its head. It is impossible to overestimate the
force of this circumstance in the development of our constitu-
tional law. The Court stood like a rock against State invasion
of Federal prerogative. The constitutional grants of power
to the government were liberally construed. State legisla-
tures were kept in their proper place of strict subordination
to the paramount authority of the Union. It was fortunate
for the fame of Marshall, and equally for the happiness of
the American people, that it fell to him to decide those first
great cases in which the powers of the United States and of
the several States were carefully discriminated and defined.
Roger B. Taney, who succeeded Marshall as chief justice,
illustrates the influence of high office on human nature.
While a mere politician he shared the views of his party asso-
ciates, and was inclined to limit in every constitutional way
the exercise of national authority; but when he became chief
justice he followed in the footsteps of Marshall, and preserved
the dignity and authority of the Court as against every effort
to degrade and minimize it.
The Supreme Court has suffered in reputation from three
circumstances in our political history. First, the decision in
the Dred Scott case, unquestionably right, but rousing the
indignation of the Northern Abolitionists, and hurrying on
the irrepressible conflict: secondly, by the decision of Knox
vs. Lee, when it was alleged, with too much show of reason,
that the Court had been packed to do the bidding of a partisan
majority: thirdly, by the decision of the Electoral Commis-
sion appointed to decide the Presidential contest of 1876,
where it was found that the members of the judiciary were
no more free from party bias than the members of the legis-
lature.
"No State shall pass any law impairing the obligation of
contracts" (Art. I., Sec. 10). This clause has occasioned more
70
litigation and lengthy adjudication than all the other sections
of the Constitution combined. By contract we are to under-
stand an agreement between two or more parties to do or not
to do a particular thing. A contract may be executed, as in
the case of a grant of land or other property; or it may be
executory, where it comtemplates some act to be performed
in the future, either by one party to the contract, or by both
parties. By the obligation of a contract we understand its
binding force as determined by the whole body of law
applicable thereto. Executed contracts, as well as executory
contracts, are within the protection of the constitutional rule.
This doctrine was announced in the famous case of Dartmouth
College vs. Woodward, 4 Wheaton, 518. Dartmouth College
was chartered by the King of England for the purpose of
educating Indians and others. When the relations between
the King of England and the people of New Hampshire were
broken off forever, the State succeeded to the exercise of the
royal prerogative. The legislature of New Hampshire
assumed to re-organize the board of trustees of Dartmouth
College. Such re-organization was resisted by the old board.
Mr. Webster, an eminent graduate of that institution of
learning, came to the aid of his Alma Mater, and resisted the
new movement and achieved a notable triumph. This is
perhaps the most historic and interesting case ever decided by
the Supreme Court. It has been cited as authority on many
different points thousands of times. While the doctrine at
first announced has been importantly modified by later de-
cisions, the case itself has never been distinctly overruled.
This decision compels the States to stand by their own bar-
gains. It is a doctrine perhaps dangerous to society, as it
may arrest legal and economical development; it has never
yet been found sufficient to stop the progress of mankind in
any right direction. Charters of corporations are now almost
universally granted subject to the right to alter and amend
71
the same, with or without reason, at the discretion of the
legislature. In New York the Constitution of the State
provides that all charters granted, either by special act of the
legislature or under general laws, may be altered or repealed
at any time by the legislature, in its discretion.
Can a State barter away its right to tax? Is not taxation
an inherent attribute of sovereignty, and, as such, inalienable?
This subject has been exhaustively treated by the Supreme
Court in some recent cases, and the doctrine established, not
without vigorous dissent, however, that a State is bound by
its contract exempting property from taxation. Such a ruling
enables one body of legislators to tie up the hands of future
legislators, which seems to be against public policy (McGee
vs. Mathis, 4 Wall, 143; New Orleans vs. Houston, 119
U. S., 265).
A municipal or other office is not a contract for the ren-
dering of service in consideration of a stipulated wage. It is
rather a public trust which patriotic citizens consent to
exercise for a limited period. In theory of law all officers may
resign, whereas no one can rescind a contract which he has
made without the consent of the other contracting party. So
the salary of the mayor of the city can be reduced during his
term of office without impairing the obligation of contracts.
Nor is the license to sell liquor a contract; it is rather a police
regulation justly within the range of State legislation.
charter of a municipal corporation is not a contract within
the meaning of the rule announced in the Dartmouth College
case. Charters of cities may be amended or repealed by the
legislature at any time. The city of Memphis was assisted in
its plan of repudiating its municipal debt by an act of the
State legislature which abolished the charter. This was held
by the Supreme Court not to be an act impairing the obliga-
tion of contracts (Meriweather vs. Garrett, 102 U. S., 472).
A
What is the meaning of the word "impair"? Whatever
72
it may mean elsewhere in English, in the Constitution of the
United States it practically means "destroy." If several
remedies are provided by law for the enforcement of a con-
tract, any one or more of them may lawfully be taken away
without impairing the obligation of the contract so long as
one efficient remedy is left. State insolvency laws absolutely
discharging a debtor from his obligation; exemption of prop-
erty from seizure and sale under execution on a judgment;
changes in the statutes of limitations and in the rules of
evidence; the abolishment of imprisonment for debt and of
distress for rent, have all been sustained as legitimate
measures of State legislation, and as not impairing the
obligation of contracts.
The Constitution forbids the passing of ex post fucto laws,
either by Congress or by the State legislatures. This barbarous
Latin is best translated by the word "retrospective." However,
a narrow meaning has been attached by adjudication to this
phrase. All ex post facto laws are retrospective, but not all
retrospective laws are ex post facto. Only penal legislation is
prohibited: retrospective civil legislation, unless forbidden by
State constitutions, is not objectionable. And only that crim-
inal legislation is void as ex post facto, which aggravates the
misfortune of the prisoner in some way. This may be, first,
by enacting a law making that a crime which was not criminal
when committed; secondly, by raising the grade of crime, as,
for instance, from misdemeanor to felony, and thereby enhan-
cing the penalty; and thirdly, by changing the rules of evidence
so as to make conviction easier. Any penal legislation mitigat-
ing the condition of the accused is not void as ex post facto.
Perhaps the only method of grading criminal offenses is by
means of the penalty awarded (Calder vs. Bull, 3 Dal., 386;
Hartung vs. The People, 22 N. Y., 95).
The Constitution also forbids the passing of bills of
attainder. A bill of attainder in English law was a conviction
73
of crime by act of Parliament without judicial inquiry. It
was followed by death. It also involved forfeiture of property,
and in the case of treason, corruption of blood, which means
the destruction of all inheritable quality. It was a terrible
engine of tyranny, which our fathers were very anxious to
exclude from our constitutional system. In an interesting
class of cases, known as the Test Oath Cases (Ex parte Gar-
land, 4 Wallace, 333; Cummings vs. Missouri, 4 Ib., 277),
the Supreme Court has given a wonderful extension to this
definition, and has pronounced unconstitutional and void acts
of legislation which can never be brought within the range
of the English bill of attainder.
LECTURE XII.
CONSTITUTIONAL AMENDMENTS.
THE
HE progressive development of political law renders it
necessary to recognize some such principle as constitu-
tional amendment, always active, or at least available, in the
normal movements of government. Occasionally some great
work of legislation is regarded by its author as an ideally per-
fect code, in which any change must necessarily be for the
worse. The master-work of Tribonian was so conceived by
the emperor; and all emendation, and even comment, was
forbidden in advance. But no sooner had Justinian so de-
creed, than he began himself to issue new constitutions, form-
ing that part of the Corpus Juris which we call the Novels.
Most constitutions make provision for their own amend-
ment. This is true of the Articles of Confederation, the
Constitution of the United States and the Constitution of the
State of New York. The Articles of Confederation provided
that any amendment should require a unanimous vote of the
States. The first step towards the Constitution was taken in
a movement to amend the Articles: it was found that amend-
ment would be inadequate, and hence the fundamental law
was re-written de novo. The tendency towards progressive
development is recognized in a unique provision of the Con-
stitution of this State, to the effect that every twenty years
there shall be submitted to the voters this question: "Shall
there be a convention to revise the Constitution and amend
the same?" (Article XIII., § 2). There have been several
instances where constitutions have been amended in a manner
75
different from that provided by the constitution itself (The
Constitutional Convention by Judge Jameson).
There are fifteen amendments to the Constitution of the
United States. The first eight constitute the Bill of Rights,
so called. The ninth and tenth define the relations of States
to the Union. The eleventh amendment, prompted by the
decision in Chisholm vs. Georgia, 2 Dallas, 419, forbids a
citizen to make a State defendant in a suit at law or in equity.
The twelfth amendment changes the method of Presidential
election, growing out of the trouble in the election of
Jefferson. And the last three amendments sum up the results
of the War for the Union.
The adoption of the Constitution was bitterly resisted,
particularly in New York. Many of the leading Revolutionary
patriots, like Patrick Henry and Luther Martin, were oppo-
nents of the Constitution. Its stoutest champions were
Hamilton, Madison and Jay, whose newspaper articles, now
known as The Federalist, have a deserved reputation for
political wisdom and practical patriotism. It was objected
that there was no Bill of Rights; and accordingly the first
eight amendments were immediately adopted. There was and
could be no opposition to the enactment of these guaranties of
the citizen against governmental and legal oppression. Little
attention was paid to the matter, however, and no one seemed
to care in the absence of tyranny what provision had been
made against it. While the most general language is employed,
it remains doubtful whether the limitations securing the
liberties of the citizen are addressed to the Federal authority,
to the State authority, or to both the Federal and the State.
The early case of Barron vs. Baltimore, 7 Peters, 243,
announced the doctrine that the prohibitions contained in the
Bill of Rights were addressed to the national government
only. The fourteenth amendment, in its first section, which
has been justly called a new Bill of Rights, may be regarded
>
76
as an important modification of the rule set forth in Barron
vs. Baltimore. But the Supreme Court, in the case of the
Chicago anarchists, has re-affirmed the rule that the Bill of
Rights limits the Federal power only. The best authorities
hold that the fourth, fifth, sixth and seventh amendments do
not limit or restrict the legislative powers of a State.
The question, however, is not as practically important as
it might seem to be, inasmuch as State constitutions contain
similar limitations of the power of government. So that
State legislatures are restrained by State constitutions from
an invasion of the liberties of free citizens. It is interesting
to note what is common to the two Bills of Rights, in the
Constitution of the United States and the Constitution of the
State of New York. Careful study shows that the two are
practically alike, both providing for religious liberty, freedom
of speech and the press, the right to petition, the right of trial
by jury, and indictment by the grand jury: and both forbid-
ding excessive bail, or cruel and unusual punishments, or
deprivation of any rights save by the law of the land (see
Constitution of New York, Art. I.). The Constitution also
forbids the granting of titles of nobility, passing bills of
attainder or ex post facto laws, or suspending the privilege of
the writ of habeas corpus (see Art. I., §§ 9 and 10).
It
It is interesting to inquire what is meant by "due process
of law" as used in the fourteenth amendment and elsewhere.
may be fairly interpreted as the traditional judicial proceed-
ing under the English common law. This did not always
involve trial by jury, because in equity and in admiralty the
English practice was to submit both questions of law and
questions of fact to the presiding judge. Nor does it forbid
summary convictions by a magistrate of misdemeanors and
petty offenses. In general, it may be laid down that a pro-
ceeding that is essentially judicial is required by the funda-
mental law. This means that notice should be given to the
77
defendant of the complaint against him, opportunity should
be afforded him to make his defense, and counsel should be
heard in his behalf. "By the law of the land," says Webster,
"is most clearly intended the general law, which hears before
it condemns; which proceeds upon inquiry, and renders judg-
ment only after trial." It should ever be remembered that
when we adopted the English common law as the basis of
American jurisprudence we appropriated not only the substan-
tive law defining primary rights, but the adjective law as well
providing for remedial justice (Constitution of New York,
Art. I., §17). The rules of pleading, evidence and procedure,
and the law of parliamentary practice as well, are our birth-
right and inheritance as much as trial by jury and habeas
corpus (Code Civil Procedure, § 217).
A State law absolutely prohibiting the manufacture and
sale of intoxicating liquors is not unconstitutional as depriv-
ing one of property without due process of law (Beer Co.
vs. Massachusetts, 97 U. S., 25).
In our early colonial days the Congregational Church was
established by law in Connecticut and elsewhere in New Eng-
land, and the Anglican state church in Virginia. One of the
marvels of history is the story of that furious bigotry that
exiled so worthy a man as Roger Williams from the settle-
ment of Massachusetts Bay. Religious toleration found its
first important legislative expression in Maryland, where
Roman Catholicism had early entrenched itself. As late as
1877 the Constitution of New Hampshire continued to exclude
Catholics from legislative office to the great shame of Christi-
anity and the disgrace of that commonwealth. Religious
freedom does not include the right to practice polygamy or
commit other crimes in the name of conscience. The right
to bear arms does not justify the carrying of concealed weap-
ons, but only extends to the establishment of a State militia,
a citizen soldiery. The intolerable burden and tyranny of
78
general warrants executed against all suspected individuals
are under the ban of constitutional inhibition. Trial by jury
means not only the determination of guilt or innocence by a
petit jury in criminal cases, but the intervention of the whole
body of the people represented on the grand jury in the de-
cision of the initial question as to who shall be put on trial.
The exigencies of the military and naval service are such as
to make trial by the quicker process of court martial necessary.
The prisoner is allowed to stand mute, and cannot be com-
pelled to testify against himself, as he is in Bavaria and other
continental countries. The prisoner has the right to be con-
fronted with the witnesses against him, to look them in the
eye while they are testifying against him: so while testimony
taken on commission may be read on behalf of the defense,
such testimony ought not to be received for the prosecution.
Eminent domain signifies the original and ultimate ownership
by the state of all land, personal property and incorporeal
hereditaments (Constitution of New York, Article I., §§
11 and 13). The right to condemn private property for
public use is enjoyed by the Federal government, by the States,
and even by municipalities; it is also exercised by railroads
and other corporations. The compensation which the law
requires to be paid is ascertained by disinterested commis-
sioners. All property which a private individual assumes to
hold is subject to taxation and to appropriation by the state
under the power of eminent domain. This may include
franchises granted for a given period of time or even in per-
petuity (West River Bridge vs. Dix, 6 Howard, 507)'
The Civil Rights Bill was passed March 1st, 1875. It
enacted that all persons of whatever nativity, race, color, or
persuasion, religious or political, shall be entitled to the full
and equal enjoyment of the accommodations of inns, public
conveyances, theatres, and other places of public amusement.
Such legislation was not warranted by the thirteenth amend-
!
79
ment, which simply extends to slavery. Denial to blacks of
equal accommodations in inns, public conveyances, and places of
public amusement imposes no badge of slavery (Civil Rights
Cases, 109 U. S., 3). But although the Federal act has been
pronounced unconstitutional, except so far as concerns the
territories, the District of Columbia, and other places under
the exclusive jurisdiction of the United States, the blacks are
not left without ample protection, at least in New York.
Unjust discrimination on the part of hotel-keepers and common
carriers is prevented by statute. Hebrews are also protected
against such discriminations, as the phraseology of the statute
adds "creed" to "race" and "color" (LL. of 1881, Chap.
400; Penal Code, § 383; 1 R. S., 8th edition, Banks, p. 300).
The last three amendments are the result of the late war.
The thirteenth abolished slavery. The fourteenth endeavored
to secure the free exercise of the right of suffrage for the
emancipated blacks by reducing the representation in Con-
gress of those States that denied them that right. The South,
however, preferred to have its representation cut down rather
than allow negroes to vote. The fifteenth amendment was,
therefore, adopted, which practically admitted negroes to the
suffrage by disallowing race, color and previous condition of
servitude as tests for the exclusion of persons from the
exercise of the elective franchise.
Many other amendments to the national Constitution have
been proposed. One that is now attracting a large measure
of public attention forbids the grant of public moneys in aid
of sectarian institutions. This principle has actually won its
way to constitutional recognition in several Western States.
*




!

UNIVERSITY OF MINNESOTA
wils v.1
340 R914
Russell, Isaac Franklin, 1857-1931.
Lectures on law for women / by Isaac Fra
3 1951 002 290 551 S
WILSON
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