History of the Origin, Formation, and Adoption of the Constitution of the United States, with notices of its principal framers

Preface

. In addition to " an infinite capacity for taking pains," a Macaulay-like memory, the precision of a lawyer and dialecti cian, the enthusiasm born of a profound reverence for the Federal Constitution, a close intimacy with many of our greatest states men, lawyers, and judges, Mr. George Ticknor Curtis possessed the power of taking broad historical and philosophical views, in a true judicial temper, and of expressing them with remarkable force and clearness. The gravity, sincerity, precision, directness, and simplicity of his diction — scarcely modern — and his exhaustive knowledge of his noble subject, pre-eminently qualified him for writing the History of the Constitution of the United States, a history which appeals to the general reader and intelligent citizen as well as to the professional student of public affairs and Consti tutional Law.

In 1854, Mr. Curtis's " History of the Constitution of the United States" first appeared — in two volumes. It at once be came a standard " authority," and a worthy companion to " Story on the Constitution," and has been often cited with respect and approval by the Supreme Court ; and all publicists have conceded its fairness and trustworthiness, although some of them have not been able to agree with its conclusions on every point of theory or of interpretation. In 1889, he issued a revised edition in one volume, and an nounced, as in preparation, a second volume in continuation of the work originally published. The prospectus said : " The first volume of this work contains the whole of Mr. Curtis's ' History of the Origin, Formation, and Adoption of the Constitution of the United States, with Notices of its Principal Framers,' which was first published by this house more than thirty years ago. The first volume of the new book has its

PREFACE.

. IV separate Index. The author has carefully revised his former work on the formation and adoption of the Constitution. " The second volume, now in preparation, will have its own Index, and will be divided into fourteen chapters. The author explains in his Preface his reason for grouping together in these several chapters the topics to which they relate, instead of giving the Constitutional History of the United States in a strictly chronological order. " The period covered by the second volume is from the adop tion of the Constitution to the close of the Civil War — three quarters of a century. In fact, the volume embraces the Consti tutional History of the country for about a century, since it de scribes all the changes that have followed the Civil War or that accompanied it, as Avell as those which preceded it.

The following are some of the topics treated in the second volume : History of Opinion and Belief concerning the Nature of the Constitution ; the Virginia and Kentucky Resolutions of 1798 ; the Federalists of New England and the Hartford Convention ; Nullification, how distinguished from Secession ; Webster and Calhoun, as Representatives of Opposite Theories ; Renunciation of the Con stitution by the Early Founders of the Anti-Slaver}' Societies ; the History of Secession ; the South Carolina Ordinance ; Why Secession is Revolution ; True Justification of the Federal Gov ernment in the Prosecution of the Civil War; Views of the Friends and Opponents of the Constitution at the time of its Adoption Concurred in Regard to its Nature; Hamilton as a Representative of the former, Patrick Henry of the latter ; their Respective Opinions of the Necessity for a Bill of Rights ; Necessity of Organic Laws to Supply the Machinery of the New Government; Mode of Choosing the President; his Constitu tional Functions ; ' Counting ' the Electoral Votes ; Washing ton's Acceptance of the First Presidency ; Earliest Precedent of 'Counting' the Electoral Vote; Inauguration of the President and Vice-President ; Power of Removal from Office ; President's Salary ; Question of a Title for the President ; the Ten Amend ments of the Constitution adopted in 1789-91 ; Why they were Demanded, and why they were Proposed ; the First Revenue Law of the United States; How far 'Protection' was deemed Obligatory ; Organization of the Judicial and Executive Depart-

PREFACE.

. V ments ; Executive Interpretations of the Constitution during Washington's Administration ; Admission of New States ; His tory and Purpose of the Territorial Clause ; Rise, Progress, and Consequences of the Anti-Slavery Agitation ; Counter Pro-Slav ery Tendencies ; Causes of the Civil War and its True Issues ; Constitutional Doctrines of President Lincoln's Administration ; Close of the War ; ' Reconstruction ' of the Southern States ; the New Amendments, whether they were in Accordance with the Amending Power; Limitations of that Power; Judicial Interpre tations of the New Amendments; How the Constitution was Left when the War was Ended and a Final Settlement of its Issues had been Reached ; Conclusions to be Drawn Respecting the Permanency of our Present Political Institutions. " A more detailed description of the contents of the second volume cannot be given in this circular.

It is believed that every important event and topic in the Constitutional History of the United States since the adoption of the Constitution has been considered, impartially and fairly. " In this labor the writer has been occupied for twenty years, aiming to condense into one volume the Constitutional History of the country for the first century of its present government, and distinguishing Constitutional History from Constitutional Law." Mr. Curtis's death on the 28th day of March, 1894, was very sudden, although he had entered the eighty-second year of a life made illustrious by many contributions to the permanent litera ture of his country in the fields of Law, Biography, and History. Among his papers was found a large quantity of manuscript relating to the proposed second volume, for the publication of which he had contracted with Harper & Brothers.

When the family of Mr. Curtis — believing that I was familiar with his modes of thought and expression, as well through long personal acquaintance as through the study of his notable biog raphies of Daniel Webster, Benjamin R. Curtis, and James Bu chanan, and of his other writings — made a suggestion to that effect, the publishers placed the manuscript in my hands, in order that it might be prepared for publication. Of course I have endeavored to perform this grateful duty with entire fidelity to the views of the author, and have not felt at liberty to make any substantial change in, or addition to, the text. VI

PREFACE.

. In the somewhat confused mass of manuscript were found, more or less complete, thirteen of the chapters referred to in the prospectus ; and also some disjecta membra relating to the other proposed chapters ; there were also many notes and memoranda. I have, therefore, aside from the preparation of the Appendix, as an apparatus for students, and sundry notes duly identified, at tempted but little more than editorial work — supplying omis sions, verifying dates, names, and citations, and correcting errors of copyists, slips of the pen, and the like — and, so far as I could, putting the posthumous material in condition for publication. The merit of the author will excuse the incompleteness of some of the chapters — thirteen of them are complete as far as they go ; in two or three some announced topics were not reached when the manuscript abruptly ended.

The character and style of the first volume are so well known that I see no occasion in a Preface to the second volume to differentiate Mr. Curtis's views and methods from those of other writers on the same subject, or to comment upon them. The Appendix contains some detached writings of Mr. Cur tis, cognate to the main work ; also a number of important his torical documents considered in Vols. I. and II., and an annotated copy of the Constitution ; and a short Bibliographic list, some notes, etc., by the editor. Vol. II. has its own Index. Although this volume lacks the great advantage of its au thor's final revision and finishing touch, I am well persuaded that it will be found to be a not unworthy companion to the first volume, and a welcome addition to the literature of our Federal Constitution — Charta maxima, lux libertatis jjræclara. J. C. C. Summit, N. J. , August, 1896. CONTENTS OF VOL. II.

Chapter II

Nature of the Constitution Further Considered. — Judicial Views of It from the Origin of the Government to the Present Time. — President Jackson's Claim to Interpret the Constitution as He Understood It. — Function of the p Supreme Court 56

Chapter III

Necessity of Organic Laws to Supply the Machinery of the New Government. — Mode of Choosing the President. — His Constitutional Functions. — Counting the Electoral Vote. — The Electoral System Prostrated by the Nominating Conventions 84

Chapter IV

The Constitution Inaugurated. — Vindication of Its Framers against the Charge of Inconsistency. — Classification of the States according to Population. — The Government partly Federal and partly National. —Basis op Representation in the Two Houses of Congress 107

Chapter V

Washington's Acceptance of the First Presidency. — Earliest Precedent of Counting the Electoral Votes. — Inauguration of the President and Vice-President. — Power of Removal from Office. — President's Salary. — Question of a Title for the President CONTENTS OP VOL II. VIII

Chapter VI

The Power to Amend the Constitution. — The First Ten Amendments— 1789-91. — Limitations on Power to Amend . Page 152

Chapter VII

The First Revenue Law of the United States. — How Far Protection was Deemed Obligatory. — Condition of American Manufactures in 1789. — Comparative Advantages of Free Trade and Protection According to Adam Smith. — Wages in the American Colonies before the Revolution. — Chief-Justice Marshall on Implied Powers. — National Bank. — Tariff for Revenue Only 167

Chapter VIII

Admission of New States. — History and Purpose of the Territorial Clause of the Constitution. — Acquisitions of Louisiana, Florida, California, and other Parts of Mexico. — Annexation of Texas. — The Mexican War. — The So-Called Missouri Compromise and its Repeal. — The Dred Scott Case. — The Controversy in Kansas. — Rise of the Republican Party. — Secession of the Southern States 191

Chapter IX

Rise, Progress, and Consequences of the Northern Anti- Slavery Agitation. — It Provokes Counter Pro - Slavery Tendencies. — The Case of Dred Scott. — Mr. Douglas's Panacea of "Popular Sovereignty." — Disruption of the Democratic Party and Election of President Lincoln. — The Kansas-Nebraska Act and its Consequences . . 231

Chapter X

Could the Civil War have been Avoided? — Its True Basis. Objects for which it could be Rightfully Prosecuted. — President Buchanan's Course in Preparing to Encounter Secession. — Neglect of Congress to Provide Him with the Necessary Means. — The Course of Mr. Jefferson Davis and other Southern Men while they Remained in Confess CONTENTS OP VOL. II. IX

Chapter XI

Constitutional Policy of President Lincoln for the Restoration of the Southern States to the Union. — The Same Policy Followed by President Johnson. —Mischievous Efforts of the Freedmen's Bureau. — Reconstruction of the Southern States Devised by the Radical Republicans in Congress. — Nature and Purposes of the Scheme.— No Warrant for it in the Constitution Pace 339

Chapter XII

Reconstruction Reconstructed. — Gross Inconsistency in Carrying out the Scheme. — Congress Acts in Bad Faith towards the W^hite People of the South. — Disastrous Consequences of Negro Suffrage upon the Southern States. — How it was Done 385

Chapter XIII

The Presidential Election of 1876.— The Electoral Commission. — Its Unconstitutional Character and its Partisan Decisions 397 CHAPTERS XIV.-XVH 440-441

Appendix

. Some Proceedings in the Continental Congress . . 443 Declaration of Independence 458 Articles of Confederation 462 Ordinance of 1787 469 Constitution of the United States of America. . . 474 Articles in Addition to, and Amendment of, the Constitution of the United States of America. . . 490 Ratifications of the Constitution 497 Ratifications of the Amendments to the Constitution 497 Argument of George Ticknor Curtis, Esq 499 An Unpublished Note by Mr. Curtis 518 The Great Compromises on Slavery 523 Letter from Hon. John Jay 528 The First Tariff Act 530 The Trustees of Dartmouth College rs. Woodavaed . CONTENTS OF VOL. II. X An Oration by George Ticknor Curtis .... Page 547 The Provisional and Final Constitutions of the Confederate States 562 Anti-Slavery Tracts 580 Implied Powers of the Constitution 589 Reconstruction Act of Congress 601 Supplementary Act 603 Proclamation of President Johnson Declaring End of the Rebellion 605 Analytical Index to the Constitution of the United States and the Amendments Thereto 609 The Proclamation of Emancipation 652 Proclamation Announcing the Adoption of XIII.

Amendment 653 First Proclamation Announcing the Adoption of XIV. Amendment 654 Second Proclamation Announcing Adoption of XIV. Amendment 658 Proclamation Announcing Adoptio.v of XV. Amendment 662 Latest Citations to Decisions on Constitutional Questions 664 Executive Power 668 Notes 687 List of Books Consulted in Preparing or Editing this Volume 705 Bibliography of the Constitution 708 INDEX OF THE UNITED STATES.