Constitutional history and political development of the United States

Front matter

^ J%HTICll£J£DUC^ION

The Society for Political Education.

{ORGANIZED 1881.)

Preface

The request addressed to me by tlie publishers to write for non-professional readers a book on the Constitution of the United States led me to inquire whether, in the multiplicity of works on this, as on almost every other conceivable subject touching large popular interests, there is any room to say something novel, or put into a new form the old matter which has been said and written over and over again by abler tongues and pens than mine. It occurred to me that a sketch of the Constitution of the United States as it stands in text, and as it is interpreted by the Supreme Court, accompanied by a history of the political controversies which resulted in the formation of and changes in that instrument, together with the presentation of the actual situation of political parties and questions, which, in their turn, may produce constitutional changes, would, if given within a limited space, present such a view of the institutional condition of the United States as to justify this book to the student of political history.

At no time in the history of the United States have its institutions awakened such widespread and friendly interest as at present. It is true that dur-

IV PEEFACE.

ing the great civil war, from 1861 to 1865, tlie news from tlie contending armies was read with greater avidity than that which is awakened by the items of a commercial, agricultural, and industrial character, which now in the main fill the columns of the press ; but a far greater proportion of the human family are more largely concerned in these very items than then were in our military contests, inasmuch as since that period the United States has become the largest contributor to the food supply of the world.

The period of the history of our country beginning with the close of the war is a most interesting one to the student of political institutions. European statesmen doubted, and many thoughtful Americans at times had misgivings, whether our institutions could bear the strain of the conditions in which at the close of the war the national government was placed. Every war issue has been met and successfully disposed of. The ills of an improperly laid and collected revenue, a bad civil service, mischievous methods of taxation and corrupt municipal administration still exist, but not one of these evils, properly speaking, can be said to date from the war period, but the roots of them were planted many years before the slavery agitation was at its height. Nigh a million of men, who in the North and South were under arms at the

PREFACE. V

close of tlie war, were disbanded and absorbed again by the agricultural and industrial enterprises of the country, and no appreciable increase of crime or lawlessness was visible in the community. The government returned to a sound currency from a depreciated paper war currency, notwithstanding the fact that great masses believed the return to specie payment would be the ruin of individual enterprise. A large proportion of the debt created by the war has already been paid off; and the remainder, by the establishment of a financial credit second to none in the world, refunded at so low a rate of interest that the burden of the debt, taking into consideration the increase of population, is but a third of what it was at the close of the war. The revenue of the country is so far in excess of its financial needs that but for the ingenuity of politicians to devise jobs to absorb public funds, a bad civil service and governmental extravagance, a still greater reduction would have been made. As it is, the debt of the United States, although the most recent of the great governmental debts of the world, may still be the first to be paid off.

All these evidences of elasticity of institutions, enabling us successfully to meet unlooked-for emergencies in our country's needs, have from time to time elicited the admiring expressions of publicists the world over, and caused them more closely to

VI PEEFACE.

study institutions wliicli, wliile they on tlie one hand secure individual freedom of action, seem not to be devoid of the power to produce such farreaching results as are supposed to be the special advantages of the more paternal forms of government.

To attribute the whole of the prosperity of the people of the United States to its institutions would be puerile in the extreme. Any constitutional form of government securing freedom of action in dealing with its practically exhaustless resources, among which may be enumerated vast treasures of mineral wealth, fruitful soil, and beneficent climate, coupled with a geographical situation which almost wholly prevents foreign complications, would have made for the inhabitants of the vast domain known as the United States a home filled with comfort, luxury, and wealth, and have attracted seekers of fortune from every quarter of the globe.

That the institutions of the United States did, however, largely favor the growth of material wealth cannot be denied. Not to speak of other advantages afforded to individual enterprise, the entire absence of any inter-state custom-house from Maine to Florida, and from the Atlantic to the Pacific, has given the inestimable and incalculable advantages of free trade in its most absolute form over a larger surface and among more varied conditions of an indus-

PEEFACE. Vll

trial and agricultural character than unimpeded exchanges exist elsewhere on the face of the globe. While it is true that in more recent years (since 1846) European nations have let down the barriers of protection toward each other, by treaty and more liberal legislation, yet in the United States the practical advantages of the system of free trade commenced almost synchronously with the teaching of the doctrine by Adam Smith, in 1776. The errors of protection, which still govern the legislation of the United States in its relations with foreign countries, and to a degree counterbalance in evil the benefits thus conferred, bring loss, but in the limited ratio that foreign commerce bears to a nation's internal exchanges ; and as the ratio of foreign commerce is at best not one to twenty of domestic interchange, the benefits conferred by the freedom of exchange within the United States must have been out of all proportion greater than the injury inflicted by the protective system inaugurated in 1861, which is, if the signs of the times do not mislead, fast crumbling away.

That there is ample scope for the political reformer, and much material to work upon in the United States as elsewhere, and in some respects more than elsewhere, will in the following pages be frankly admitted. The methods of legislation are wofuUy primitive and defective, and the practice

Vm PEEFACE.

ofttimes corrupt. The existing system of representation is inharmonious and unphilosophical ; the tariff legislation a mass of injustice and incongruities, resulting in a collection of revenue at a most burdensome expense to the consumer. Municipal goyernment is too easy a prey to jobbery and venality of every description. The civil service goes by favor rather than by merit. Political parties, although they divide upon numberless unimportant issues, seldom upon fundamental principles of government, almost constantly unite in favoring monopolies in disregard of individual rights and interests, and in almost every attack upon the public purse, frequently vieing with each other in bidding for popular favor at the sacrifice of the more permanent interests of the community. Yet these evils, mischievous as they are, are not -without remedy. The one crowning merit of American institutions lies in the fact that an earnest and persistent appeal to the good sense of the people has, since the formation of the Constitution, always evoked a spirit able to cope with even more formidable national vices. We have, therefore, strong reason to expect that these lesser defects will be remedied by deliberately formulated constitutional changes adequate to extirpate them.

SIMON STERNE. 30 West 59th street, New York.

Contents

CHAPTER I. jAGE Constitution op the United States 1

CHAPTER n.

The Legislative Department 27

Chapter I. Constitution Of Th!^ United States

It -would far transcend the limits of a book intended for popular purposes, to enter into an elaborate investigation of all the causes wliicli contributed to the creation of the United States Constitution, or to trace in detail the reasons why the constitutions of the American States all came to be written documents, instead of being unwritten and elastic principles of government, like the Constitution of Great Britain. Without much sacrifice of space, however, a few salient elements may properly here have attention drawn to them.

The powers of the governments of the English colonies in America, before the Revolutionary war, beginning in 1775, were all written instruc- 1 tions, accompanied by charters and grants of title and formulated frameworks of government. The English colonists were thus accustomed to written documents as the source of governmental power, and the meaning of their provisions was the test of governmental limitations.

At an early date in the history of the origin and settlement of Yirginia no taxes were to be levied by the Governor without the consent of the General Assembly, and when raised they were subject to an appropriation by the Legislature of the colony. The Plymouth colonists, who were the settlers in New England, acted originally under a form of voluntary compact ; but found it difficult to obtain proper respect for governmental authority under this voluntary form of association, and as early as January, 1629, by a patent from the Council under the charter of King James of 1620, obtained sanction and authority for the laws which they subsequently enacted. The fact that this Patent lacked royal assent was the excuse for its withdrawal by Charles II., and it was not until 1691, under the charter granted by William and Mary, that unquestioned royal .authority was granted for the laws enacted by the New England colonists.

At an early period in the history of the English colonies in America the rights of the inhabitants to personal liberty were based upon Magna Charta and on the Petition and Bill of Eights ; and the common law, except in so far as it may have been modified by special charters, was the prevailing law of the land.

The principle upon which the common law was thus recognized as the prevailing law, was that it was the birthright and inheritance of every emigrant in so far as it was applicable to his condition.

There were three classes of government, instituted in America by the English crown. One was the provincial establishments, in which the Governor was made supreme ; under this form of government New Hampshire, New York, New Jersey, Virginia, the Carolinas, and Georgia were administered. The second was called proprietary governments, which embraced grants to individuals with governmental powers ; under this form, in their earliest history under the English crown, Maryland, Pennsylvania, and Delaware were constituted. The third was charter governments, of which Massachusetts was the leading example, and Connecticut and Rhode Island as derivative forms from the Massachusetts grant. Under all these forms, in process of time, local Legislatures were established, which drew to themselves a considerable

4 CONSTld^FTIONAL HrSTOET.

proportion of tlie governmental power whicli had originally been parceled out to the governors of the colonies. In both the proprietary and charter governments, the colonists, during all their early struggles with the crown, insisted that they had an inherent right of representation ; the crown, on the other hand, insisted that it was a mere privilege, held at its will. In some of the colonies the laws were required to be sent to the King for his approval ; in others, they were not so required. The general feeling on the part of the colonists that it was their right to make their own laws is best expressed in the declaration drawn up by the Congress of the nine colonies assembled at New York in October, 1765, wherein they are made to say, " that they owe the same allegiance to the crown of Great Britain that is owing from his subjects born within the realm, and all due subordination to that august body, the Parliament of Great Britain ; that the colonists are entitled to all the inherent rights and liberties of his natural-born subjects within the kingdom of Great Britain ; that it is inseparably essential to the freedom of a people and the undoubted right of Englishmen that no taxes be imposed upon them but with their own consent, in person or by their representatives; that the people of the colonies are not, and from their local circumstances

CONSTITUTIOIS^ OF THE UNITED STATES, 5

cannot, be represented in tlie House of Commons ; that the only representatives of the colonies are persons chosen by themselves ; that no taxes could be constitutionally imposed upon them but by their respective Legislatures ; that the supplies of the crown being free gifts of the people, it is unreasonable and inconsistent with the principle and spirit of the British Constitution for the people of Great Britain to grant to His Majesty the property of the colonies ; and that trial by jury is an inherent and invaluable right of every British subject in the colonies."

The united colonies admitted the right of Parliament to pass general acts for the amendment of the common law to which the colonies were subject, or general acts for the regulation of trade and commerce throughout the whole empire, but denied the right of Parliament to pass special acts applicable only to a part of His Majesty's subjects, to wit, the inhabitants of the colonies, and more particularly special acts imposing taxation. The Stamp Act being such a special act, the colonies, at the invitation of Massachusetts, assembled by their representatives in September, 1774, at Philadelphia, in a Congress, and thus established, for the first time in the history of the English-American colonies, a general deliberative body, deriving its autliority from tlie people of the colonies alone. This Congress continued to exercise power until March, 1781, and was then superseded by the Congress of the Confederation, which came into existence during the latter part of the War of Independence ; it then being manifest that a new nation would be born. The Continental Congress avoided creating jealousy between the several colonies, by placing them all, independent of size or numerical strength, on the same footing; inasmuch as each combined delegation from each separate colony had but a single vote.

The second session of this Congress of delegates met in May, 1776, immediately after the opening of the war of Independence by the battles of Lexington and Concord. This Congress then assumed supreme direction of the war of Independence, and was, to all intents and purposes, the government of the united colonies after the 4th of July, 1776, when, by the promulgation of the Declaration of Independence, they declared their severance from the British crown, their right to make treaties with foreign governments, and their establishment as a nation. It appointed the officers of the army; it pledged the credit of the united colonies for the payment of the expenses of military organization ; it apportioned the amounts

CONSTITUTION OF THE UNITED/STATES.

wliicli each State was to pay toward the general expenses ; it adopted rules for the government of the army and navy ; it granted commissions by letters of marque to capture the vessels of Great Britain ; and exercised, in short, substantially all the powers which subsequently, first by the Articles of Confederation and then more fully by the Constitution of the United States, were ceded by the several States to the general or national government. 'The severance of the colonies from Great Britain, both by the result of the war and by the formal Declaration of Independence, made each particular colony a sovereign and independent State, except in so far as it might voluntarily consent to subject its sovereignty, by cession, to the general government of all the States. Although this is true of the original thirteen States, it is not equally true of the remaining twenty-five, as their very existence as States depended upon the fiat of the Federal Congress.

Several of the States, between the breaking out of the War of Independence and the formation of the Articles of Confederation, framed constitutions of their own, in which they formally declared their independence of the mother country, and reenacted such parts of Magna Charta and the Bill of Eights as were applicable to their condition, together

8 COITSTITUTIOJSrAL HISTOEY.

witli statements of the rights of man expressive of tlie wider views and the more revolutionary principles which had found acceptance with the colonists from the freedom of movement and independence of character incident to and formed by American colonial conditions. These views, as to forms of expression, were very considerably influenced by the theoretical teachings of the French Encyclopaedists, whose works, to no small degree, quickened the thoughts and influenced the methods of expression of Jefferson, Adams, Madison, and Hamilton, who were the leading minds of the Continental Congress.

Virginia, New Hampshire, New York, and South Carolina had, before 1778, passed constitutions for the people of their States as sovereignties, and subsequently every State of the Union, after the Articles of Confederation were formed, by a properly delegated convention of its people, put in shape, and, by subsequent submission to the people, caused the passage of organic laws, called constitutions, by which the general framework of the institutions under which they were living was mapped out, the division of Executive, Judicial, and Legislative functions clearly defined, and the rights inherent in the people beyond governmental control, expressed and insisted upon.

The revolutionary Congress, recognizing the fact that its existence would end with the struggle, and acting on the assumption that the struggle would result favorably to the colonies, appointed in June, 1776, a committee composed of one member from each colony, to consider the form of Articles of Confederation to be entered into between the colonies, as the basis of a permanent form of government. These Articles of Confederation formed the subject of debate in Congress until the 15th of November, 1777, when they were adopted. A circular letter was prepared to the several States requesting authority from the States to authorize their delegates to Congress to subscribe the Articles of Confederation. The States proposed many amendments, which were all rejected by Congress, because Congress deemed it inexpedient to accept any amendments for fear of the delay. A draft was thereupon prepared and sent to all the States on the 26th of June, 1778, and was ratified by them all, except Delaware and Maryland, which respectively withheld their ratifications, the one until 1779 and the other until 1781.

From the moment of the organization of government under the Articles of Confederation, the question of the ownership of the lands which theretofore had belonged to the crown, in the several States, was an irritating subject between

10 COlSrSTITUTIOKAL HISTORY.

tLe States, as was also tlie not-clearly defined boundaries between tlie States. The only way to overcome the difficulty first named, was to conform to the suggestion of Congress, that the several States should cede the crown lands within their borders to the general government, as lands belonging to the people at large. The name of the confederacy was the United States of America. Under it the following powers of government were secured to the nation and ceded by the States :

Congress was empowered to determine on peace or war with foreign nations, to send and receive ambassadors, and to make treaties of commerce ; but each State was free to levy whatever import or export duties it saw fit, to determine upon the rules of capture by land or sea, and to appoint courts for the trial of cases of captures on high seas and piracy. In all cases. of dispute between the States, if the agents of the States could not by joint consent agree upon judges to try their causes as they might arise, Congress was empowered to constitute a court by a most cumbersome method. Three persons were appointed from each State, and then the disputing States struck one each, until thirteen remained, from which number Congress drew out seven or nine by lot, a majority of which determined the cause finally.

Congress was also empowered to regulate tlie coinage, to afford postal facilities, and to appoint the officers for the land and naval forces.

During the recess of Congress, its powers were conferred upon a committee of the States — one delegate from each State — with the limitation, however, that upon almost every important question it required the assent of nine States before the measure could become operative as a law.

Under these Articles of Confederation the treaty of peace with England was concluded and the American nation was governed until the final adoption of the Constitution of the United States. The main defect of the Articles of Confederation was, that although powers sufficient to create a government were ceded, there was no power to raise revenue, to levy taxes, or to enforce the law, except with the consent of nine States ; and although the government had power to contract debts, there were no means by which to discharge them. The government had power to raise armies and navies, but no means wherewith to pay them, unless the means were voted by the States themselves ; it could make treaties with foreign powers, but had no means to coerce a State to obey such treaty. In short, it was a government which had the power to make laws, but no power to pun-

13 COIsrSTITUTIOIsrAL HISTOEY.

ish infractions thereof. Washington himself said . " The Confederation appears to me to be little more than the shadow without the substance, and Congress a nugatory body."

Chief Justice Story, in summing up the leading defects of the Articles of Confederation, says : " There was an utter want of all coercive authority to carry into effect its own constitutional measures ; this of itself was sufficient to destroy its whole efficiency as a superintendent government, if that may be called a government which possessed no one solid attribute of power. In truth, Congress possessed only the power of recommendation. Congress had no power to exact obedience or punish disobedience of its ordinances ; they could neither impose fines nor direct imprisonments, nor divest privileges, nor declare forfeitures, nor suspend refractory officers. There was no power to exercise force."

This absence of all coercive power was most directly and injuriously felt in the financial administration of the nation. The requisitions of Congress for money were disregarded at will. The consequence was, that the treasury of the United States was empty ; the credit of the confederacy was gone ; and while public burdens were increasing, public faith was prostrate. Even the interest of the pub-

CONSTITUTIOl^ OF THE UNITED STATES. 13

lio debt remained unpaid, and tlie bills of credit that liad been issued during tbe Revolution and immediately subsequent thereto sank to so low a value that the public debt was substantially repudiated. As an illustration of this fact, it may be remarked that of the requisitions for the payment of the interest upon the domestic debt from 1782 to 1786, which amounted to more than six million dollars, only a million was paid. Each State saw fit to exercise its sovereign power to regulate commerce with the other States, and this created dissensions among the States ; so that in 1784 the national Congress formally declared its inability to maintain the public credit or to enforce obedience to its own dictates, and from time to time, up to 1787, declared in various public ordinances its inability even to enforce its own treaty power.

This state of things became intolerable, and was, by the leading men who had guided the colonies through the struggles of the War of Independence and aided in the formation of the Articles of Confederation, recognized as a mischief which would result in the disintegration of the union of the States. Hence an active propaganda was instituted in all the States for the preparation of more perfect articles of union and the creation of a government representing the States as a nation. In February,

14 COKSTITUTIOlSrAL HISTOEY.

1787, a resolution was adopted by Congress recommending a convention in Philadelphia of delegates from the several States for the purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures such alterations and provisions therein as should, when agreed to in Congress and confirmed by the several States acting as sovereigns, be adequate to the exigencies of government and the preservation of the Union,

The convention met, and, after very full consideration, determined that amendments to the Articles of Confederation would be inadequate for the purposes of the government, and prepared a new Constitution, the ratification of the conventions of nine States to be deemed sufficient for the establishment of the constitution among the States so ratifying the same. This Constitution was submitted to the several States, and was ratified by eleven of them, North Carolina and Rhode Island standing out, the former until November, 1789, and the latter until May, 1790.

Although the government was organized by the ratification by eleven States, the ratification by all the States made that instrument the supreme law of the land, and that Constitution, with its amendments, from that time forth, remained the charter

CONSTITUTIOlSr OF THE UNITED STATES. 15

under whicli the government of tlie United States has been administered in all its foreign and inter-state relations.

In the interpretation of this chart of government it must be remembered that the government of the United States is one of delegated powers ; that in theory the States possess all the sovereign powers not delegated, either expressly or by necessary implication, to the general government : and that the vast body of law, known as constitutional law, in the United States, deals first with the interpretation of these powers delegated to the general government, and secondly with the reserved rights of the States under their respective State constitutions, and the reserved rights of the people never delegated either to the State or to the general government.

The history of the Constitution shows, first, that the compact between the States was intended to be indissoluble. The Articles of Confederation in terms said so, and when they were found inadequate for the purpose, the Constitution was framed, " to form a more perfect union." Likewise the States are indestructible. The Constitution is a compact of States, and the States are, therefore, an integral part of the nation ; without them there is no compact which can bind non-assenting States.

This has been decided in a recent case (Texas vs. White) by the Supreme Court of the United States.

The Constitution makes the national government, in all matters delegated to it, the supreme law of the land, and not only is it the supreme power in all such matters wherein the Congress of the United States has, in pursuance of constitutional authority, acted, but it is the supreme authority whenever it chooses to take up a subject which is delegated to the government of the United States, although the States, in the absence of such action on the part of the general government, have seen fit to pass laws of their own to meet the emergencies. A notable instance of this is bankruptcy. From time to time bankruptcy laws have existed in the United States, enacted by the general Congress, and have been repealed. During the period of repeal the various States have enacted insolvency and bankrupt laws which, on the instant when the general government again took up the subject by passing a new bankruptcy law, became dormant and inert, and remained in abeyance until the national law was in its turn repealed.

The Territories of the United States have no reserved rights. They can be dealt with by the general government in such way as it may see fit, and not until a Territory becomes sufficiently populous

OOlSrSTITUTION OF THE UNITED STATES. 17

to be admitted as a State does it become clothed with all the reserved rights of States, and when so clothed it is as sovereign and independent a community as though it had been one of the original thirteen States which had entered into the compact.

Amendments to the Constitution are provided for in two ways. In the one in which Congress has the initiative, it may recommend amendments by a vote of two-thirds of both Houses, and such amendments shall become valid when ratified either by the Legislatures of three-fourths of the several States or by conventions of three-fourths thereof, as one or the other of these modes of ratification may be proposed by Congress. Another mode provided by the Constitution is for Congress, on the application of the Legislatures of the several States, to call a convention for proposing amendments; the work of which convention must be equally ratified by the Legislatures of three-fourths of the States or by conventions in three-fourths thereof. The only limitation upon the power of amendment of the Constitution is, that no ' State, without its consent, shall be deprived of its equal suffrage in the Senate. This provision was deemed necessary in order to prevent an amendment by the more populous and larger States which should deprive tlie few smaller States, such as Rhode Island or Delaware, of their equal representation in the Senate. This power of amendment takes away all excuse for revolution, because the instrument which is the supreme law of the land provides a method by which the popular will can act jipon it so as to remedy or remove any existing or supposed abuses.