"If, in the opinion of the people, the distribution of the constitutional powers be in any particular wrong, let it be corrected in the way which the Constitution designates.
"But let there be no change by usurpation, for this, though it may in one instance be the instrument of good, is the ordinary weapon by which free governments are destroyed.."
"Itis my duty and my oath to maintain inviolate the right of the States to order and control under the Constitution their own affairs by their own judgment exclusively. Such maintenance is essential for the preservation of that balance of power on which our institutions rest.."
Published January, 1908
D. APPLETON AND COMPANY 1908
COPYRIGHT, 1908, BY
D. APPLETON AND COMPANY
TO MY WIFE ANNA SHEPARD PIERCE
WITHOUT WHOSE AID THIS BOOK COULD NOT HAVE BEEN WRITTEN
Published January, 1908
"Evil for evil, a good despotism in a country at all advanced in civilization is more noxious than a bad one, for it is more relaxing and enervating to the thoughts, feelings, and energies
of the people."
JOHN STUART MILL.
"As we cannot, without the risk of evils from which the imagination recoils, employ physical force as a check on misgovern-ment, it is evidently our wisdom to keep all the constitutional checks on misgovemment in the highest state of efficiency, to watch with jealousy the first beginnings of encroachment, and never to suffer irregularities, even when harmless in themselves, to pass unchallenged, lest they acquire the force of precedents."
THIS book is a plea for the sacredness of the Constitution of the United States. I do not mean by this that I consider our Constitution, framed a hundred and twenty years ago, well suited to the needs of our existing government. Its rigid provisions, its system of checks and balances, are an obstacle to popular government, and they should be radically changed by amendment, but never by construction or usurpation. This book was suggested by the President's speech at Harrisburg in 1906, in which he declared that the power of the Federal Government should be increased "through executive action . . . and through judicial interpretation and construction of law." A little later, at the Pennsylvania Society in New York, Mr. Root, the head of the Cabinet and the close friend of the President, declared that if the people desire it "sooner or later constructions of the Constitution . . . will be found" to vest additional power in the National Government. Hitherto governmental usurpation generally has advanced by silent and gradual attacks upon constitutional safeguards. Never before in human history, I believe, has the head of a constitutional government who had sworn to protect, preserve, and defend its fundamental provisions publicly advised their subversion "through executive action and through judicial interpretation." In recent
days every abuse on the part of corporations engaged in interstate commerce has been eagerly grasped by the President as the reason for an encroachment upon constitutional guarantees, while every opposition to such encroachment has been seized as a reason for a stronger national government to put down opposition. Unless the people are stirred to a recognition of the danger of such usurpations, they will never be checked.
Well-defined usurpations of power by the National Government had a commencement in our Civil War. They gathered force during the Reconstruction period, but were slightly checked in the administrations of Presidents Hayes and Arthur and the first administration of Mr. Cleveland. In the present administration they have increased with amazing rapidity. We are told by the President that "such interpretation as the interests of the whole people demand " should be given to the Constitution, leaving this to be determined by tlie National Government. Impelled by such conceptions of constitutional law, a National Employers' Liability Act, applying to railway servants, has been passed, a National Pure Food Law has been enacted, and the Department of Agriculture now claims the power of "making the standards of composition for food products." About every industry, however remotely connected with interstate commerce, is sought to be controlled by child-labor laws, commissions, or licenses, and ere long we will fully adopt the methods of Continental Europe by which the local and domestic affairs of the people are under the supervision of the central government. Unless a determined body of citizens arise and oppose such usurpations, the doom of our state governments is already sounded.
There is no doubt that there is a natural evolution
in our times toward centralization. A hundred agencies combine to bring men and industries to great central points. This tendency cannot be stopped, but centralization which results from natural causes should be sharply distinguished from concentration of power through usurpation. It is usurpation for the National Government to take over the powers of the states without employing the proper means of acquiring them through amendments to the National Constitution. "State rights," says President Roosevelt, "should be preserved when they mean the people's rights, but not when they mean the people's wrongs." Even Alexander Hamilton, the most pronounced advocate of a strong centralized national government, entertained no such conception of state rights as this. In the debates before the New York Constitutional Convention, he said:
"The state governments are essentially necessary to the form and spirit of the general system. As long, therefore, as Congress have a full conviction of this necessity, they must, even upon principles purely national, have as firm an attachment to the one as to the other. This conviction can never leave them, unless they become madmen. While the Constitution continues to be read, and its principles known, the states must, by every rational man, be considered as essential, component parts of the Union; and therefore the idea of sacrificing the former to the latter is wholly inadmissible." The difficulty in our day is found in the fact that when we speak of state rights the minds of men naturally go back to the Civil War and the claims of the South in that contest. We who oppose usurpation by the National Government of the rights of the states plant ourselves upon the same principles as those for which the North waged that war. The National Government
has no more right to destroy the reserved powers of the states than the South had to destroy the powers delegated by the states to the National Government. The Constitution of the United States secures to the states their reserved rights in the same way that it secures the rights delegated by the states to the National Government.
In each of the chapters of this book, after the first, I have sought to gather the facts illustrating usurpations of government at some particular period or by some particular department. I am aware that it may be said that the public interest in such facts is temporary rather than permanent and that political parties will uncover these facts. Our political parties to-day are mere political machines living upon the spoils of office and giving little heed to great public questions. The leaders of these parties deal in glittering generalities, the one seeming to favor centralization of power in the National Government and the other espousing the cause of state rights, but it is apparent that they do not widely differ in reality as to details. The very existence of these parties depends upon extending the power of government, multiplying commissions, licenses, offices, and special privileges. Exposure of usurpations will never come from those who profit by usurpations.
The most important public affairs are unknown to the people. Law-making in the House of Representatives to-day is as carefully hidden in its secret committees from popular gaze as was the action of the Council at Venice in the Middle Ages. In January, 1907, Mr. De Armond introduced a bill in the House of Representatives conferring upon the President of the United States the right to remove from office, without charges and without a hearing, any one or all of the
twenty-nine United States Circuit Court judges and the eighty-two District Court judges of the United States District Courts, and the bill gave him the power of appointment of new judges in their places by and with the advice and consent of the Senate. This proposed bill, conferring as despotic powers upon the President as was ever exercised by any ruler in the history of the world, was so hidden from the American people behind the door of the secret Congressional committee that probably not one citizen in a hundred thousand ever heard of its existence.
The United States Supreme Court, recognizing that the National Government is one of delegated powers, recently decided, in the case of Kansas v. Colorado, that the powers conferred upon the Supreme Court were an exception to the rule, and that as respects their judicial power there was practically no limitation. Do the people know of this proposed law and of the danger of this recent decision? Has any alarm of danger been sounded by political parties as to these measures? Are such measures questions only of temporary interest? Is there anything which should concern free men so greatly as the preservation of their freedom? The individual man is the essential unit of any society that hopes to retain the principles of growth and progress. His personal liberty is the source of personal initiative and national wealth and strength. Our progress in wealth has depended more upon that individual liberty than upon all other causes combined. But liberty has higher ends tlian to fire the soul of the individual to action and to urge him to the attainment of high political ends. Lord Acton well said: "Liberty is not a means to a higher political end. It is of itself the highest political end." Liberty nourishes self-respect, self-reliance, and every
impulse to a higher life. It gives birth to art, literature, and culture. It ever has been the source of all the higher impulses and aspirations of men. On the other hand, a usurping government destroys these qualities, turns the attention of the citizen to foreign politics, dazzles him with military glory, and destroys his aspirations for liberty. Surely the importance to the individual man and to our country of the preservation of liberty justifies a discussion of the present danger from usurpation of power.
Without any desire to influence men's political associations, I have attempted in this book to show the causes of present conditions, to arouse the citizen to an appreciation of the dangers of usurpation, and to point out remedies for existing evils through amendments to the Constitution of the United States. I shall be happy if this examination may aid in any way the present growing interest in the preservation of constitutional guarantees. The age of the birth of the Constitution produced our greatest constructive statesmen. The period between 1820 and 1850, when its meaning was so thoroughly discussed, called forth the great powers of Webster and Calhoun. A nonpartisan discussion today of the dangers which exist from usurpation may happily lead to that elevation of public character and public life which will regenerate political parties and lead them to make fighting issues on the fundamental principles of government.
FRANKLIN PIERCE. December 1, 1907.
CHAPTER PAGES I. � THE BIRTH OF THE CONSTITUTION . . . 3-38
The checks and balances in the Constitution upon popular government, 3-6, Democratic spirit of early state governments, 7-8; Causes of reactionary spirit of the Constitution, 8-13; Constitutional Convention, 14-21; State conventions for adoption of the Constitution, 21-22; Powers conferred upon Congress, 22-24; No inherent powers in Congress, 24-25; Executive and judicial powers, 25; Amendments to the Constitution, 25-28; Sources of the Constitution. 29-31; Local self-government in New England and paternalism in Canada, 31-33;
Alien and Sedition Laws, 34-36; Veneration for the Constitution, 36-37.
II. � USURPATION IN THE CIVIL WAR AND RECONSTRUCTION PERIOD ...... 41-75
Origin of existing usurpation found in this period, 41-42; Suspension of writ of habeas corpus by President Lincoln and imprisonment of thousands of Northern men, 42-46, Writ of habeas corpus suspended by a national statute which was declared unconstitutional, 46-50; Lincoln's comments upon his acts of usurpation, 50-51; The Confiscation Act, 51-52; Centralization through National Bank and Tariff Acts, 52-57; Attitude of the President and Congress upon the effect of secession, 57-59; The Reconstruction Acts and the despotic powers exercised by the generals of the Military Departments, 59-63; The Ku Klux Law and the Civil Rights Bills held unconstitutional, 65-67; Laws of carpetbag governments
declared unconstitutional, 67-68; Supervision of elections in the North by United States marshals, 69; Ejection of legislators in Louisiana by United States troops, 70-71; Partisan spirit of reconstruction, 74-75.
III.�EXECUTIVE USURPATION ..... 79-121 Power of President exceeds that of any constitutional monarch, 79-84; Popular election no restraint on arbitrary power, 84-86; Separation of coordinate departments of the national government, 86-87;
The acts and criticisms of the President tend to destroy the separate power of the Judiciary. 87-96; Proposed bill giving the President arbitrary power of removal of Federal judges, 93; President's attempts to influence the action of Congress, 96-99; States prompt to remedy evils in comparison with Congress, 99-104; Opinions of Hamilton and others on state rights, 104-107; Executive pension order, 107-109; Collection of customs duties in San Domingo, 109-111; The seizure of Panama, 111-114; The discharge of negro troops without trial by court-martial, 114-118; The justification of usurpation, 119�120; The unwritten law should preclude the President from dictating his successor, 120-121.
IV.�PATERNALISM AND IMPERIALISM . . . 125-155
The universal seeking of aid from an all-powerful President is a menace to liberty, 125-128; Governmental favors to farmers and bankers and their effect upon the people, 128-132; Statutes considered a panacea for evils, 133-134; Race suicide, a result of tariffs and trusts, 135-139;
Effect of imperialism upon home institutions, 139-143; Playing the part of a world power results in socialism, 143-144; The methods and characteristics of imperialism, as described by Sir Henry Campbell-Bannerman, appearing in the United States, 145-152; The United States ruled from
Washington as Prance is from Paris, 152-154;
Growth of arbitrary methods, 154; Existing conditions a presage of empire, 154-155.
V.�CONGRESSIONAL USURPATION .... 159-193 Decline of popular branch of Congress and contemporaneous growth of this branch in Europe, 159�162;
Government by committees and absence of public discussion the causes of decay, 162-164; Great volume of legislation and the arbitrary methods of its passage, 164-170; Extravagant expenditures, 170-171; Hasty and ignorant legislation, 171-172; Absence of debate stifles worthy ambitions of members and destroys public interest in legislation, 172-174; Senators representatives of property, 174-175; The Senate's rapid growth in power and its close relation to the President in the government of the country, 176�180; Government of Congress undemocratic and a shelter for usurpation, 180�181; The Department of Agriculture our most prolific source of usurpation, 182-187; Appropriations for irrigation unconstitutional, 187-188; Detailed acts of usurpation, 188-192; Such usurpations lead to socialism and absolutism, 192-193,
VI.�THE UNITED STATES SUPREME COURT THE ABSOLUTE POWER ....... 197-237
Possesses the most absolute power ever conferred upon a court, 197-201; The sources of its power to declare a national statute unconstitutional, 201-205; Before the Civil War reluctant to declare national statutes unconstitutional, 205-206;
Our reverence for courts, 207-209; Danger that it may increase its powers by construction, 210-212;
The Legal Tender cases, 212-219; The Income Tax cases, 220-226; The Mankichi case, holding that indictment by grand jury and conviction by unanimous verdict in a murder case were not fundamental rights, 226-232; The increasing use
of injunctions in criminal cases, 232-234; Temporary injunctions, granted by a single judge, holding, upon mere affidavits, state statutes unconstitutional, 234-237.
VII. � TREATY POWER AND STATE RIGHTS . . 241-265
A treaty is the supreme law of the land, binding all the states, 242; The facts establishing this contention, 243-250; Calhoun's opinion, 251-252;
The decisions of the courts unanimously sustain this contention, 253-256; The authority for the state rights contention, 257; Difficulty with Italy over killing of her citizens by mob at New Orleans, 258-260; Political leaders allow violent treatment of aliens for party reasons, 260-261; The California school statute, 262-263; The present treaty with Japan has an express provision exempting state laws, 263-264; Treaty power was never intended as a means of acquiring Asiatic territory, 264-265.
VIII. � THE INTERSTATE COMMERCE CLAUSE . . 269-305
President Roosevelt's contention that state rights should be preserved only when they mean the people's rights, 269-272; The right of commercial intercourse belonged to the people before the Constitution, 272; The Constitution is to be interpreted by the facts existing at its birth, 273-274; The regulation of commerce by the nation was intended to prevent obstructions to commerce, 274-279; The Interstate Commerce Employers' Liability Act, 284-289; Proposed Interstate Commerce Child Labor Law, 289-291; Judge Parrar's plan of government ownership of all interstate railways approved by the President, 291-294; The Lottery Case, its important bearing upon the police powers of the states, 294-301;
The blessings of free trade between the states, 302; Are national officials more efficient than
those of states? 303; The great and dangerous power exercised "by the President through commissions, 304-305.
IX. � STATE CENTRALIZATION THROUGH COMMISSIONS
AND COURTS ....... 309-341
The source of local self-government and its value, 309-311; Government by commissions in Massachusetts, 311-313; New York, 313-316; Connecticut, 316-317; New Hampshire, 317-318;
South Carolina, 318; Benefits of commissions and dangers therefrom, 318-321; The Pennsylvania "Ripper" Bills and State House appropriations, 321-323; Bipartisan commissions and government of cities from state capitals, 323-324; Legislation by committees, 324-325; Overlegislation, sumptuary laws, and special legislation, 325-327;
A revolution in the practice of appellate courts as to setting aside verdicts as against the weight of evidence, 327-330; Reversals of judgments for technical defects, 330-331; The requirement of unanimous verdicts in jury trials, 332; The slaughter through negligence, 333; The Star Chamber of Colorado, 334-335; John Doe warrants and exercise of arbitrary power in New York City, 335-336; Abuses a pretext for interference by the national government, 337; The remedy, 338-339; The President's paternal interest in the Governors of New York and Massachusetts, 340-341.
X. � USURPATION IN ADMINISTRATIVE LAW . . 345-374 Nature and growth of administrative agencies, 345-347; The Ju Toy Case, 347-354; Mail stoppage orders, 355-363; Our censors compared with those of Europe, 364-366; Recent instances of usurpation in Administrative Law, 366-370;
Judge Gaynor on danger of commissions, 370-371;
Administrative courts in Continental Europe, 371-373, Whither our President is leading us, 373-374.
XI. � HOW TO RESTORE THE DEMOCRATIC REPUBLIC, 377-407
The characteristics of our people endanger their liberties, 377-380; Materialism the foe of liberty, 380-384; Instances of public virtue and its immortality, 384-386; We must destroy bosses and monopolies, 386-387; The solution of public questions and the removal of evils rests directly upon the people, 387-389; The first legal change should be an easier method of amending our Constitution, 389-391; Real party government impossible at present, 391-392; House of Representatives should be supreme in lawmaking, 392-393; The heads of departments should be heard in Congress, as in England, 393-394; The flood of legislation should be stopped, 395-396;
The right kind of party government a blessing, the wrong one a public curse, 396-397; Presidential term should be lengthened and power of independent appointment extended, 397-399;
Popular election of U. S. Senators, 399-400;
Second Session of Congress should not follow a Congressional election, 400-401; Tax monopolies, 401; Private bills and special legislation the source of corruption, 401-402; Corrupt governments produce dictators, 403; The Referendum, 404-405; An indignant, fighting people can obtain their rights, 407.
APPENDIX . . . . . . . . . . .411
INDEX ............ 431
I THE BIRTH OF THE CONSTITUTION
"Though small in their mere dimensions, the events here summarized were in a remarkable degree germinal events, fraught with more tremendous alternatives of future welfare or misery for mankind than it is easy for the imagination to grasp."
"The Constitution has found many learned and intelligent commentators; but they have all considered its excellence to be an undoubted and universally admitted fact. What should have been only the result of their investigation they made the premises of their arguments. . . . The historical fact is that it was 'extorted from the grinding necessity of a reluctant
"The English Constitution, in a word, is framed on the principle of choosing a single sovereign authority, and making it good; the American, upon the principle of having many sovereign authorities, and hoping that their multitude may atone for
THE BIRTH OF THE CONSTITUTION
A CONSIDERABLE proportion of our American people have ever deprecated any criticism of the Constitution of the United States. Any suggestion that the constitutional adjustment of Congress, the President, and the Supreme Court is defective is considered unpatriotic and un-American. They appear to think that it is the duty of the true patriot to ignore imperfections lest they throw discredit upon the sacred provisions of the Constitution. No free government can exist long unless there are a considerable number of men ready for unsparing examination and criticism of its weaknesses.
It is uncommon to see the laws and constitution of a state openly disregarded. It is the silent and gradual attacks that the citizen should watch with jealous care. When government inspectors supervised the elections for representatives in Congress in the reconstruction days, and counted ballots for state candidates as well as for members of Congress, the citizen felt the indignity and assailed it with resentment. When, however, usurpations may be hidden behind a government so complicated by checks and balances that the citizen cannot perceive them, the nature of the government may entirely change and the spirit of the original constitution
be lost before he awakes to the danger. Such a form of government, which hides usurpation and is a constant temptation to usurpation, we certainly have.
Prior to the formation of our National Government the people imposed limitations upon the monarch or upon some centralized power of the government. Magna Charta, the Petition of Right, the Bill of Rights, all were imposed as limitations upon the power of the English king. In all modern parliamentary governments the power of the people in the representative body of the government is supreme. We alone have limited the power of our House of Representatives to such an extent as to cripple effective action on their part. A bill introduced in the House of Representatives and there passed must receive the assent of the Senate, a body elected not by the people but by the State Legislatures, before becoming a law. If the Senate does assent, it then goes to the President, who can reject the same giving his reasons therefor. If passed a second time by a two-thirds majority of each House, the Supreme Court of the United States may still hold it unconstitutional.
The chief value of a constitution in a democratic form of government, such as we are supposed to have, is to afford ready means for the expression in laws of the will of the people through responsive legislative action. The best form of party government is found where two parties espouse conflicting principles and fight out the question of their value in the open. The Constitution of the United States does not give such free and effective play to public opinion in government.
The checks and balances which it has created make the free expression of the convictions of the people by a political party almost impossible. In eleven different Congresses since the adoption of the Constitution both the President and the Senate have been of a different political faith from the House of Representatives. During a period of eighty-four years of our constitutional history a majority in the House of Representatives has not been supported by all the other branches of the Government. Between 1874 and 1896 there were but two years, the Fifty-first Congress, during which the same party had a majority in all the branches of the Government.1
Clean-cut issues between parties upon principles of government are impossible with such a Constitution, whereby the President and the Senate may represent one party, and the House of Representatives another party, and where both parties, hidden behind Congressional committees, may be acting collusively. If public opinion upon national questions is to be made effective in government, the House of Representatives, elected directly by the people, must eventually become the governing power in this country. Its decay during the last thirty years is an omen of great danger.
We hear much said in these days about the extension of the powers of the National Government by judicial construction, but no appeal is made by the President and Mr. Root to the people or to Congress for an amendment conferring such extension. And why not? Such an amendment cannot be considered by the people 1 Smith, The Spirit of American Government, p. 227.
unless two thirds of both Houses of Congress shall deem it necessary and shall propose the amendment to the People for their adoption, or two thirds of the several states shall call a convention for proposing the amendment, and in each case it must be ratified by the legislatures of three fourths of the several states. We are fold that during the fifteen years from 1889 to 1904 435 amendments to the Constitution were proposed in Congress,1 and not one passed both Houses. No force less than the force of revolution can be expected to move this cumbrous machinery. The President and Mr. Root well know this. They know the difficulties of bringing about an amendment, and so we are told that the results will be accomplished by the exercise of judicial discretion in the construction of the Constitution.
Such a constitution, with so many checks and balances, with so many difficulties of amendment, is a constant temptation to President and Secretary, to Senate and House, to usurp power. Unless the American People awaken to the danger of usurpation and make one supreme struggle to modify the conditions on which the Constitution may be amended, we are in imminent danger of an entire change in our institutions through gradual encroachments upon the power of the states. Our state constitutions are amended with ease. Many of them provide for constitutional conventions each twenty years to consider the changes which new conditions have made necessary. But our National Constitution continued from early in the nineteenth century for
1 Smith, The Spirit of American Government, p. 47, note.
over sixty years without a single amendment, and from the Reconstruction Period until the present time without another.
Let us now inquire how this undemocratic Constitution came into existence. Who conceived all these checks and balances upon the representatives of the people in the lower House, and what considerations impelled the making of such a Constitution? That the people had no such fear of their representatives is shown by the fact that the first constitutions of the thirteen states in nearly every case gave almost unlimited power to the popular branch of the Legislature. In nine states the judges were appointed by the state legislatures, either with or without the consent of the Council. The appointing power of the governor was largely restricted in nearly all these states. In six of them this power was given to the Legislature or to the Legislature and Council. The veto power was given the governor in only two states, Massachusetts and New York. The Assembly in each state was hampered but little by executive veto or by the courts. Madison, speaking in the convention which framed the Constitution, said: "Experience shows a tendency in our government to throw all power into the legislative vortex. The executives of the states are little more than ciphers; the legislatures are omnipotent."
England had parliamentary government with Pitt as Prime Minister at the time when our Constitution was framed, but the English Government of that time was by no means so popular in form as the governments of the thirteen states. The masses of the people were just
as strong then in the sincerity of their belief in liberty as we are to-day in the cynicism of our single-hearted faith in riches. They had staked everything in the world for the vindication of the principles of liberty. No people in the world at that time would have been so quick to resent and so ready to scrutinize and so brave to fight attacks upon their liberties. They took alarm at once at a Constitution which they feared would imperil those liberties. The fear of kings might be a reason why they should erect barriers against the encroachments of the President, but why they should place limitation after limitation on the powers conferred upon the House of Representatives elected by their direct vote is not so easily explained. That explanation, however, is found in the opinions of the men who drafted the Constitution. They had great fear of popular government, and their fear would seem to have had considerable ground at that time for its existence.
We shall not appreciate why the limitations in the Constitution upon popular action were created if we do not understand clearly the conditions of the people in the thirteen states at the time of its formation. John Fiske, in his book entitled "The Critical Period of American History," has described fully those conditions. The characteristic feature of the Constitution, putting limitation after limitation upon popular action, was a direct result of the reaction which came from popular tumult and popular abuses during that critical period.
During their seven years' war the 2,500,000 people of the thirteen states had placed nearly 300,000 troops in the field, and had raised $170,000,000. The army,
however, had dwindled from 46,901 toward the middle of the war to 13,832 in 1781, and the revenue had dwindled from $22,000,000 to $2,000,000 annually. But for the timely aid of France the Revolution could never have been successful. At the end of the war the resources of the country were so exhausted that no money was left to pay the arrears of the soldiers in the field nor the running expenses of government.
The treaty between the Confederation and England in 1783, while it terminated the war, at the same time destroyed the foreign commerce of the states. Prior to the Revolution the New England States had been largely engaged in the carrying trade between the colonies and the West Indies. The building of ships and the sailing of ships was the great industry of New England. The treaty of 1783 closed the ports of every English colony to New England ships. The English Navigation Act impaired very greatly the ability of the Southern and Middle States to export their products. The result was that New England and the South, without money in gold and silver, with only their continental currency, and with their trade destroyed, were crippled in all their industries. Suffering intensely from these conditions, a large body of the people, heavily indebted, subject to judgments and imprisonment for debt, developed such bitter feelings as to cause the reaction shown by the framers of the Constitution.
By the Articles of Confederation the central government had no power to impose taxes upon the people of the several states, but depended entirely upon requisitions made upon the states for their proportion of
the supply necessary to meet the demands of government. New Hampshire, North Carolina, and New Jersey refused to respond to these requisitions. New York, Pennsylvania, and Connecticut were the only states which responded in full. Of the continental taxes assessed in 1783 only a fifth part had been paid by the middle of 1785. The Government had become so helpless that it was actually forced to make loans abroad, not only to pay the interest upon the public debt, but to pay the actual current expenses of government.
The several states imposed direct taxes as they do to-day, and also laid duties upon exports and imports, each according to its own view of its local interests. Connecticut imposed duties upon goods coming from Massachusetts and from New York, Pennsylvania upon goods coming from Delaware, and New York upon goods coming from Connecticut and New Jersey. The State of New York raised from �60,000 to �80,000 by duties upon foreign imports. Connecticut consumed probably one third of these goods imported, consequently she paid one third of this amount of duties in enhanced prices for the goods which she purchased from New York. Pennsylvania, Virginia, and South Carolina were each importing states. Madison quaintly describes the condition of the times as follows: "Some of the states had no convenient ports for foreign commerce and were subject to be taxed by their neighbors through whose ports their commerce was carried on. New Jersey placed between Philadelphia and New York was likened to a 'cask tapped at both ends,' and
North Carolina between Virginia and South Carolina, to a 'patient bleeding at both arms.'"
The states shared with Congress the powers of coining money, of emitting bills, and of making promissory notes legal tender for debts. This power left to the states was the one which brought untold evil. With little or no gold or silver in the country, with no medium of exchange, bending under their indebtedness, their commerce destroyed, no markets for their products, exhausted by the great burdens of the Revolutionary War, and disappointed because liberty had not brought blessings to them, the people in all the states but Connecticut and Delaware provided for the issue of paper money.
In Rhode Island the farmers gave mortgages on their land for the loan of paper money issued by the State, and when they tendered the money to a storekeeper in payment for goods he refused to accept it. Then laws were passed in Rhode Island and in many other states requiring creditors to accept the money in payment of debts, and, in case of refusal, permitting debtors to go before any magistrate and tender this money in payment of a debt, whereupon a certificate was given by the magistrate as evidence of payment. In North Carolina the money was used by the State to purchase tobacco, the State paying twice the value of it in order to get the people to take the money. Finally, South Carolina, Georgia, and Rhode Island were driven to pass penal statutes punishing those who would not accept the money in full payment. So little of currency was there in the country that the people reverted to the
practice of barter, whisky in North Carolina and tobacco in Virginia doing duty as money. Some states even passed laws permitting their products to be given in payment of debts at a certain price. The result was mobs in Rhode Island that attempted to intimidate the court in passing upon the constitutionality of its Legal Tender Act, and an insurrection in Massachusetts which broke up courts and was finally put down by armed troops.
That this turbulence and passion naturally inspired a very grave distrust of the people in the men who framed the Constitution is well established. More than fifty years after the formation of the Constitution the notes of Madison, giving the sentiments of the men who drafted the Constitution, were published. Then for the first time the world knew what these men thought of the people and why they created so many limitations upon the action of the House of Representatives. Governor Randolph of Virginia said in the convention:
"In tracing these evils to their sources every man has found it in the turbulence and follies of democracy." George Mason of the same State said: "The injustice and oppression experienced among us arises from democracy." Roger Sherman of Connecticut thought "that the people would never be sufficiently informed to vote intelligently on all candidates that might be presented." Elbridge T. Gerry of Massachusetts declared that "the follies which we experience flow from the excess of democracy." Hamilton, Gouverneur Morris, and many of the other delegates made like expressions.
Reading Madison's notes (the only complete statement of what occurred in the National Convention), there can be but one conclusion: that the limitations upon the popular branch of Congress were created because of the deep-seated distrust of democratic government on the part of the men who framed the Constitution. They believed that a popular majority was a menace to liberty and feared the people, so they created the Constitution with the idea of making control by the people ineffective. Governor Clinton, before the convention in New York called for the purpose of considering the adoption of the Constitution, well said: "I ever lamented the feebleness of the Confederation, for this reason, among others, that the experience of its weakness would one day drive the people into an adaption of a constitution dangerous to our liberties. I know the people are too apt to vibrate from one extreme to another." 1
The conditions resulting from the control by the states of commerce, as permitted by the Articles of Confederation, were simply intolerable. The National Assembly in 1785 requested the several states to allow the Confederation to impose duties upon imports of tea, coffee, sugar, and other like articles, to provide for the current expenses of government. Ten states consented, but attached such conditions to their consent as made them of no value.
Finally, at a meeting at Mount Vernon, in 1785, of commissioners from the States of Maryland and Virginia to define their respective jurisdiction, a suggestion was
1 Elliot's Deb., vol. ii, p. 359.
made that a general convention of the states should be held to provide plans for the common control of all foreign and interstate commerce. The Legislature of Virginia thereupon sent to the Legislatures of the states an invitation to send representatives to Annapolis in 1786 to devise common commercial regulations of foreign and interstate trade. Only the States of Virginia, Pennsylvania, New York, and Delaware responded. With so few states present the convention at Annapolis deferred action, but through Alexander Hamilton drafted a report to Congress. Hamilton prepared this report with careful reference to a convention of all the states, not to amend the Articles of Confederation, but to create an entirely new government, urging Congress to call a convention to devise "such further provisions as shall appear to them necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union, and to report to Congress such an act as, when agreed to by them and confirmed by the Legislature of every state, would effectually provide for the same." Congress neglected to act until a culmination of evils forced them to issue an address to the different states asking that commissioners be sent, and adopting the language of Hamilton in his report of the Annapolis convention.
In May, 1787, fifty-five delegates, representing all the states but Rhode Island, assembled in Philadelphia. Mr. Fiske tells us that twenty-nine of these delegates were university men, graduates of Yale, Harvard, Princeton, Columbia, William and Mary, Oxford, Glasgow, and Edinburgh. Among the twenty-six who were not uni
versity men were Washington and Franklin. John Adams and Thomas Jefferson were in Europe. Samuel Adams, Patrick Henry, and Richard Henry Lee disapproved of the convention, and remained at home. The convention selected George Washington for its president.
The first resolution passed by the convention is in the following words: "Resolved, That it is the opinion of this committee that a national government should be established, consisting of a supreme, legislative, executive, and judiciary." Six states, Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, and South Carolina, voted for this resolution. Connecticut voted no; New York was divided. It often has been claimed that the separation of these departments of government in our Constitution was the result of the teachings of Montesquieu, who had published his "Spirit of the Laws" about thirty years before the Constitution was adopted. Montesquieu was a great admirer of the English Constitution, and attributed its success to the fact that there was a division of the government into executive, legislative, and judicial departments. He held this up to his readers as a model form of government, and described at great length the advantages to be derived from this separation. From time to time, later in the debates of the convention, the writings of Montesquieu were referred to, but no reference to them was made in connection with the passage of this resolution. Certainly Montesquieu was mistaken as to the real condition of the English Government at the time when he wrote. The men who framed the Constitution were prob-
ably better acquainted with its actual workings than was the author of the "Spirit of the Laws." They well knew that Lord North, as Prime Minister during the Revolutionary War, had been controlled by George III. They appreciated that the subservient parliaments of the administration of Lord North represented the estates and the money of the peers and the influence of the king rather than the great body of the English people, and there is much more reason to believe that they had in mind the tyranny of George III in providing for this separation rather than the teachings of Montesquieu.
Two plans of government were presented to the convention, one known as the Virginia plan and the other as the New Jersey plan. The Virginia plan had been carefully drafted by James Madison and given to Governor Edmund Randolph for presentation as the leading representative of the State of Virginia. The Virginia plan went at once to the root of the whole evil of the Confederation by creating a new government with power to enforce its decrees upon the people of the states. In the convention in New York for the adoption of the Constitution, Lansing said: "I know not that history furnishes an example of a Federated Republic coercing the states composing it by the mild influence of laws operating on the individuals of those states." James Madison states that Noah Webster, in the winter of 1784-85, first proposed "A new system of government which should act, not on the states, but directly on individuals, and vest in Congress full power to carry its laws into effect." 1 The New Jersey plan proposed to
1 Elliot's Deb., vol. v, p. 118.
leave the states instead of the people of the states as the basis of government, thus permitting the very causes of the existing evils to continue.
The great contest before the convention was over the questions of the control of commerce and of the institution of slavery in the Southern States. New Hampshire, Massachusetts, and Rhode Island had united in passing in the Legislatures of each of those states what were known as Navigation Acts, providing that no goods should be shipped in English vessels, with other provisions tending to destroy English commerce in our ports. The ships of the New England States transported most of the exported products of the South. So exceedingly fertile and profitable were the lands of South Carolina that, in the single port of Charleston, a hundred large ships were loaded yearly with rice and indigo. The annual exports of tobacco from Virginia alone were 700,000 or 800,000 pounds.
The imposition of duties upon foreign commerce being left with Congress, the South feared that New England and the Middle States would unite and control commerce against her interests, imposing heavy freight charges upon her exports and obstructing the importation of goods to her ports by protective tariffs. Massachusetts was the only state in the nation at that time which did not own slaves, and though slaves were held in all the other Northern States the system of slavery was rapidly dying out in the North. The Massachusetts delegates, as well as the delegates from Virginia, favored limitations upon the importation of slaves. The result was that a committee consisting of one dele-
gate from each state was appointed to adjust the questions of slavery and the control of foreign commerce. The Southern men insisted that no Navigation Act or act controlling commerce should be passed without a majority vote of two thirds of the members of each branch of the Congress. The Northern men, on the other hand, urged that limitations should be put upon the existence of slavery, and that the evil should be gradually destroyed. The result was a compromise permitting the importation of slaves until the year 1808, and consenting that commerce should be controlled by Congress upon a mere majority vote. This compromise was baleful seed for the new nation, producing two of the greatest evils which this country has ever known. We destroyed slavery by the sacrifice of the blood of a million men and of billions of treasure, but we continue to allow Congress, by a mere majority vote, to pass navigation and high tariff acts that obstruct commerce for the profit of manufacturing interests, and thus we prolong an all-pervasive source of corruption. "By an inevitable chain of causes and effects Providence punishes national sins with national calamities."
When James Wilson and Charles Pinckney suggested that the executive power should be intrusted in the hands of one man, it is said that a profound stillness fell upon the convention and no one spoke for several minutes, until Washington from the chair asked if he should put the question. Sherman and other members of the convention spoke of the executive as "nothing more than an institution for carrying the will of the legislature into effect." After it had been determined that the executive
power should be intrusted to one man, the question of the time of office was discussed and terms of one, two, three, four, ten, and fifteen years were suggested, but Rufus King of Massachusetts remarked: "Better call it twenty, it is the average reign of princes."
After four or five weeks of constant sittings of the convention grave doubt existed as to whether any agreement could be reached. Dr. Franklin, who was not conspicuous for his religious fervor, seeing the danger and lamenting it, arose and said: "Mr. President: The progress we have made after four or five weeks' close attendance and continual reasoning with each other � our different sentiments on almost every question, several of the last producing as many 'noes ' as 'ayes' � is methinks a melancholy proof of the imperfection of the human understanding � in this situation of this Assembly groping, as it were, in the dark to find political truth, scarcely able to distinguish it when presented to us, how has it happened, sir, that we have not hitherto once thought of applying to the Father of Lights to illuminate our understandings?" He then moved that each session of the convention be opened with prayer. Hamilton and several of the other members suggested that it was too late a day for this innovation, and after several unsuccessful attempts to adjourn the convention without acting upon the proposition, it was at length carried.1
Madison's notes show that again and again expressions were made by members of the convention to the effect that such language must be used in the Constitu-1 Elliot's Deb., vol. v, pp. 253, 254.
tion as would not arouse apprehension on the part of the people that their liberties were being affected lest they reject it. A single instance of the spirit of many of the men of the convention is shown by a letter written by Gouverneur Morris in Jefferson's administration. Our country had just secured the great Louisiana Territory from France by a treaty which provided that the territory should be divided up into states and eventually made part of the Union. While the right to acquire territory by treaty was conceded, Jefferson believed that it could not be divided into states and received into the Union without an amendment to the Constitution, as his letters written at the time to Breckinridge, Gallatin, Dunbar, and Nicholas clearly establish. The final draft of the Constitution was made by Gouverneur Morris, and he, more than any other member of the convention, was responsible for the wording of each section. Article 4, Section 3, provides: "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; nothing in this Constitution shall be so construed as to prejudice any claim of the United States or of any particular State."
Gouverneur Morris, writing to his friend Henry Livingston with reference to the right of the United States to purchase this territory and take it into the Union as states, said: "I always thought that when we would acquire Canada and Louisiana it would be proper to govern them as provinces and allow them no voice in our councils. In wording the third section of the fourth article I went as far as circumstances would
permit to establish the exclusion. Candor obliges me to add my belief that had it been more pointedly expressed, a strong opposition would have been made."l The leading men of the state conventions who adopted the Constitution well knew that a democratic republic could not govern subject races, and that every democracy which had attempted empire had met with disaster. Yet Gouverneur Morris intended, according to his own admission, to draft this section in such a way as not to disclose the intent to hold the people of newly acquired territories as subjects, well knowing that if the intent was understood the Constitution would be defeated.
The Constitution was now sent by Congress to the several states for their consideration and adoption, and with its submission arose one of the most vigorous struggles upon questions of political principles which our country has ever seen. The columns of newspapers were filled with articles by writers, ardent for its adoption or its rejection, who concealed their personalities under such classic and sonorous names as Cassius, Agrippa, Cato, C�sar, or Aristides. The struggle was carried on most vigorously in Virginia, Massachusetts, and New York, the Constitution being passed in each state only after long discussion and by very small majorities. Those engaged in commerce and residing in the cities were uniformly favorable to the Constitution, while those settled in the remoter parts of the states and engaged in agriculture were quite as uniformly opposed to it. In New York, Albany and Tryon Counties were arrayed against the southern part of the State. In Mas-
1 Columbia Law Review, March, 1905, p. 195.
sachusetts, Boston and the surrounding country was opposed by the central and western part of the State. The Constitution never could have been adopted had it not been for the desperate conditions of the different states at that time. In Virginia, Patrick Henry, George Mason, Benjamin Harrison and John Tyler (the fathers of the two future presidents) and James Monroe each opposed its adoption.
Article 1, Section 1, of the Constitution1 provides that "All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of the Senate and House of Representatives." The powers referred to as granted to Congress are limited by the words "herein granted," and they are found enumerated in Section 8 of Article 1. No power is conferred upon Congress except those specified in the seventeen subdivisions of that section. The eighteenth subdivision, providing that Congress shall have power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers," is the provision in the Constitution over which much of the litigation as to the constitutionality of acts of Congress has arisen. This may seem strange to the reader, because that provision is no more than would be implied from the granting of an express power, since every power carries with it by implication the right to exercise all necessary and proper powers for its execution. These words would therefore seem to be unnecessary. Yet under this last clause have arisen the questions of the constitutionality of the Bank of the United 1 A copy of the Constitution may be found in the Appendix.
States; of the Legal Tender Acts; of the vast works of internal improvement; of the power to use billions of dollars of the people's money to foster agriculture and irrigate arid lands; of the power to lay embargoes on shipping, and of enacting protective tariffs and navigation acts.
In Section 9 of Article 1 are the provisions prohibiting acts on the part of Congress, while in Section 10 of Article 1 are gathered the prohibitions upon the actions of the different states. In this connection it is most important to observe that the grants of power found in Section 8 of Article 1 on the part of the states to the National Government are not exclusive in their nature except in those cases where the state is forbidden in Section 10 from doing the same act. Thus the state is forbidden from entering into any treaty, alliance, or confederation, from coining money, emitting bills of credit, making anything but gold or silver coin a payment of debts, passing any bill of attainder, ex post facto law, or impairing the obligation of contracts. Until Congress has exercised these powers of Section 8, the state can continue to exercise such of them as are not thus prohibited to the states and are not national in their nature.1 So for a hundred years after the passage of the Constitution the state governments imposed quarantine against other states, and that power recently has been absorbed by the National Government. Each state
1 Cooley v. Port Wardens, 12 How., 310, 319; Pound v. Truck, 95 U. S., 459; Cardwell v. Am. River Bridge Co., 113 U. S., 205;
Leisy v. Hardin, 135 U. S., 100; Louisiana v. Texas, 176 U. S., 1; Compaignie v. Board of Health, 186 U. S., 399.
may pass bankruptcy laws which exist until the National Government has provided for a system of uniform laws on the subject of bankruptcy throughout the United States. Each state may provide for the punishment of counterfeiting- the securities and current coin of the United States, and each state may regulate foreign and interstate commerce upon subjects which are of such a nature that Congressional legislation is not necessary to reach them, such as inspection of pilotage, port regulations, and improvements of harbors.1 In all the cases referred to above, and others not enumerated, the state has what is called "concurrent power " to execute powers which were delegated to the National Government, until Congress has passed a statute controlling the matter.
There is no such thing as an inherent right in Congress to exercise any power not specified in the seventeen subdivisions of Article 1, Section 8.2 When a power is implied by the courts it must be implied as necessary and proper for carrying into execution an express power granted. "The powers affecting the internal affairs of the states not granted to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively, and all powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States."3 So all
1 Bowman v. Chicago Ry. Co., 125 U. S., 215, 507; Cooley's Constitutional Lim., pp. 215, 723.
2 Kansas v. Colorado, 206 U. S., 89.
3 Kansas v. Colorado, 206 U. S., 90.
powers not affecting the internal affairs of the states, and at the same time being national in their nature, but not delegated by the people to the National Government, are reserved to the people of the United States and they, if they desire, can confer them, by an amendment to the Constitution, upon the United States.1
Turning now to the executive power in Article 2, Section 1, and to the judicial power, Article 3, Section 1, we find that neither executive power nor judicial power are limited to powers "herein granted." Section 1 of Article 2 provides that "The executive power shall be vested in a President of the United States of America." Section 1 of Article 3 provides that "The judicial power of the United States shall be vested in one Supreme Court." So that notwithstanding each of these general grants of power are followed by an enumeration of special powers granted, the general grant of power we are told to our surprise by the United States Supreme Court is not limited by the enumeration.2
The first eight amendments to the Constitution enumerate popular rights, the origin of which can be traced to some event or series of events in English history where the right was won as the result of years of struggle. The Constitution of the United States creates none of these rights. Every one of these enumerated safeguards exist under the common law or in the Constitution of each state, and the only result of their incorporation by amendment in the Constitution of the
1 Kansas v. Colorado, 206 U. S., 90. 2 Kansas v. Colorado, 206 U. S., 82.
United States is as a restraint upon the action of the United States Government.1
Next it is important to observe that the ninth and tenth amendments to the Constitution preserve to the states all powers not delegated to the United States by the Constitution, nor prohibited by it to the states, and that the enumeration of certain rights delegated to the National Government shall not be construed to deny or disparage others retained by the people. These amendments, say the United States Supreme Court in a recent case, were "adopted with prescience " under "fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted."2 This august court long ago declared "that the maintenance of the state governments are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National Government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible states." 3
The thirteenth amendment, besides abolishing forever slavery and involuntary servitude, gives power to Congress to protect all persons within the jurisdiction of the United States from being in any way subjected to such slavery or involuntary servitude, except as punishment for crime.
1 Presser v. Illinois, 116 U. S., 252; Maxwell v. Dow, 176 U. S., 581, Barrington v. Missouri, 205 U. S., 483.
2 Kansas v. Colorado, 206 U. S., 90.
3 Texas v. White, 7 Wallace, 725; South Carolina v. United States, 199 U. S., 453.
The object of the fourteenth amendment to the Constitution was to secure the negroes from discrimination on the part of the state governments. Before its adoption a Civil Rights Act had been passed seeking to secure that end, but had been declared unconstitutional. The fourteenth amendment was then framed, passed by a two-thirds majority through both Houses of Congress, and approved by three fourths of the States. It recognized, if it did not create, a national citizenship as contra-distinguished from that of the States. It provided that no state should make or enforce any law which should abridge the privileges and immunities of citizens of the United States; and it was contended later with great vigor that these words referred to the first eight amendments of the Constitution, and thus secured to the citizens of every state in the Union all of the privileges and immunities set forth in detail in those amendments.
If this claim had been sustained it would have made the United States Supreme Court a guardian of the personal rights of the citizen of every state. The citizen's rights would have been measured, not by the guarantees of personal liberty assured by his own state constitution, but by the National Government's standard as set forth in the first eight amendments; and the United States Supreme Court would have been called upon in thousands of cases to enforce upon the states the observance of these amendments. This contention, however, was not sustained.1 The construction put by the
1 The Slaughter House Cases, 16 Wallace, 36; Minor v. Happersett, 21 Wallace, 162; Maxwell v. Dow, 176 U. S., 594;
United States Supreme Court upon the words, "nor shall any State deprive any person of life, liberty, or property without due process of law," in the fourteenth amendment, is a narrow one, securing to the citizen of the state few rights. This provision has been construed to mean simply that liberty and property has not been taken without due process of law when it is taken in the course of the regular administration of the law in established state tribunals. If the regular administration of the law in the established tribunals of the states authorize a particular act, the United States Court will not interfere.1
The fifteenth amendment relates to the right of a citizen to vote. It does not confer the right of suffrage on anyone. It merely invests the authorities of the United States with the constitutional power of protecting citizens in their enjoyment of the elective franchise from discrimination on account of race, color, or previous condition of servitude.2
So the reader will see that although the United States Government, within the last four or five years, has held the attention of the citizen because it promises to rectify great abuses, still his State Government controls him exclusively as to taxes, schools, trades, inheritance, marriage, divorce, courts, police, local boards, and in a hundred other different ways, and that the proper place to rectify evils is at home, where he
Dounce v. Bidwell, 182 U. S., 244, Cooley, Constitutional Lim., 4th ed., p 497, marg , p 387.
1 Ballard v. Hunter, 204 U S , 242.
2 United States v. Reese, 92 U. S., 214; United States v. Cruikshank, 92 U. S., 542.
sees and appreciates them and can apply a direct remedy.
The sources from which the men who framed the Constitution drew their plan and material has ever been a subject of interest. Mr. Gladstone spoke of the Constitution as "the most wonderful work ever struck off at a given time by the brain and purpose of man." The trouble with this statement is that the Constitution was not struck off at a given time by the brain and purpose of man, but was the result of a progressive growth reaching back to the time of the Anglo-Saxon invasion of England. The Anglo-Saxons had developed in Germany the mark and the hundred and the tribe which present in detail the gradations of local independence and central authority. In England the mark became the town. The federation of Anglo-Saxon townships constituted the Anglo-Saxon kingdom or what later became the shire. The shire possessed a general assembly made up of all the freeholders together with the representative element comprising, like the hundred court, the head men and four chosen men from each town of the shire. The shire assembly elected its own chief magistrate, the earldorman, and its sheriff. The judicial executive exercised an authority over the general affairs of the whole shire quite similar to that exercised by our National Government over the several states. The Norman Conquest impaired these institutions, but their remembrance, and to some extent their existence, continued, and the Pilgrims brought them to this country.
The central government of each of the New Eng-
land colonies was based partly upon the people and partly upon the towns as integral elements of the colony. The governor, deputy governor, and assistants, who constituted the upper House in the Colonial Assembly, were chosen in a general election by the whole body of freemen when not appointed by the Crown, while the deputies, who constituted the lower House, were chosen by an equal representation from the several towns. Each citizen was responsible to the central government of the colony and to the government of his own town. This form of government was taken into Connecticut by the emigrants from the Massachusetts Bay Colony, and in Connecticut we find the same disposition of general and special powers between the central government of the colonies and the governments of the constituent communities. This relationship was most instrumental in bringing about the peculiar form of our National Government, with its representation by states in the United States Senate and its representation of the people in the House of Representatives. The government of Rhode Island was the same as in Connecticut; and when each of these charter colonies at the time of the Revolution desired to change their form of government they did it by simply declaring that the people had ascended the throne of the deposed king, and this was all that was deemed necessary to change the charter of each into a constitution. Connecticut continued under her old charter as a constitution until 1818, and Rhode Island until 1842.
Our ancestors sought a new country, and they found not only a new country but a new condition of mind.
Here, face to face with Nature, they were taught to rely mainly on themselves, and manhood became a fact of prime importance. The neglect of England became their opportunity. Nowhere had local self-government reached so high a degree of efficiency as in New England. They believed it to be all important that people should manage their own affairs instead of having them managed by a strong central government. How different their attitude toward government than was that of their Canadian neighbors. The more the citizen obeys the inclination to rely on help from others, the community or the state, the less is his force of initiative developed, the less is he inclined to exert himself, not alone with the idea of making a living but of attaining the highest development. Never was there a more striking contrast than between the government of the people of New England and the French Canadians of Quebec.
Twelve years before the Pilgrims landed at Plymouth Quebec was founded, and this was only one year after the first permanent settlement in America at Jamestown in Virginia. The colony grew and developed under the benevolent government of Louis XIV. The omnipresent, inquisitorial nose of the French Intendant followed the peasant into every detail of his life. The price of wheat and the price of about every necessary of life were regulated by imperial edicts. The question of race suicide was ever one of great importance. Girls for the colonies were taken from the houses of refuge in Paris and Lyons and sent by shiploads to Quebec. There they were provided husbands
with little delay. All single men arriving in the country were obliged to marry within a fortnight after the landing of the prospective brides, and the Intendant Talon forbade them while unmarried to fish, hunt, or go into the woods with the Indians under any pretense whatever. Upon their marriage the governor general gave the newly married couple an ox, or a cow, or a pair of swine, or a pair of fowls, or a few crowns of money.1
Large families were greatly encouraged by the Government. The king, in council, passed a decree that all the heads of families who should have living children to the number of ten born in lawful wedlock should be paid a pension of 300 livres, and those who should have twelve children a pension of 400 livres.2 The king devoted 40,000 livres for the purpose of encouraging the art of shipbuilding, and the Intendant Talon built a ship to show the people how they were built, and to lead them to imitation. Louis XIV trusted the intendant to issue an ordinance having the force of a law whenever he thought necessary and, in the words of his commission, "to order everything as he shall see just and proper." 3 The in-tendants, under such directions, controlled public meetings, restrained the people from speaking their minds, regulated them in all the details of their life, destroyed individual initiative, and stunted and exhausted the energy of the people. The New Englander learned how to govern himself because he lived in a society in which each man worked as his own master, where he depended
1 The Old Regime, Parkman, 221, 226. 2 The Old Regime, Parkman, 227. 3 The Old Regime, Parkman, 275.
on his individual action for promotion, and where he controlled the government in which he lived. These little democracies of New England prided themselves in being sufficient unto themselves, and out of them came the liberties of the states and the greatness of our country.
Most of the provisions of the Constitution can be found in the first constitutions of the states.1 The provision for vesting the legislative power in two chambers finds its counterpart in the constitution of six different states. The term of service of the members of the Maryland Senate suggested the six years' term in the United States Senate; and the election of the Maryland senators was the model of the provision for electing the President through electors named by the legislatures of the different states. The provision for the impeachment of the President of the United States or of any official is almost identically the same as that existing in the Constitution of 1777 of the State of New York. The provision associating the Senate with the President in the exercise of the appointing power is very similar to a system pursued under the New York Constitution, which provided that the governor should make his appointments "by and with the consent of a select committee of the Senate." The provision requiring the consent of the President before an act of Congress could become a law and permitting him to veto the same is copied almost word for word from the Constitution of Massachusetts.
1 Am. Academy of Political and Social Science, pamphlet No. 9.
In every one of the states, with the exception of New York and North Carolina, the upper House was denied the right of originating money bills, and in Maryland, Virginia, South Carolina, and New Jersey the Senate was denied the right of even amending such bills. The qualification for senators in ten states which had bicameral legislatures was on a distinct basis of taxable property, and a higher qualification was required for electors and members of the Senate in several of the states. Gouverneur Morris and other members of the Constitutional Convention contended that the United States Senate should be regarded as representative of property; while the House of Representatives, immediately elected by the people, should be regarded as representative of the people. From one third to one half of the members of the Federal Convention had been members of the conventions which had framed the several state constitutions. It certainly is not a violent presumption when we find provisions in the state constitutions similar to those in the National Constitution, to assume that the model was found in the state provision.
George Mason, in the Virginia Convention, in discussing the proposed Constitution, said: "Now suppose oppression should arise under this government, and any writer should dare to stand forth and expose to the community at large the abuses of those powers, could not Congress, under the idea of providing for the general welfare and under their own construction, say that this was destroying the general peace, encouraging sedition, and poisoning the minds of the people? And could they not, in order to provide against this, lay a dangerous
restriction on the press? Might they not thus destroy the trial by jury?" Just what Mr. Mason apprehended actually occurred. Hardly had Washington left the Presidency when, in July, 1798, a statute was passed by Congress making it a crime to write, print, utter, or publish or cause to be written, printed, uttered, or published, or to knowingly assist in publishing any false, scandalous, and malicious writing against the Government of the United States with intent to defame the said Government, or either House of the said Congress, or the President, or to bring them into contempt.1 The statute made this an offense, subject to prosecution in the national courts, which, under the reserved powers of the states, could be cognizable only in the state courts. Matthew Lyon, of Vermont, was convicted under this statute and sentenced to four months' imprisonment in jail, and a fine of $1,000, because he declared that the President's Mes-
1 It is interesting to observe that a statute almost identical with the sedition law was passed a few years ago in the Philippines. The statute reads:
''Every person who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government of the United States or the insular government of the Philippine Islands, or who shall print, write, publish, utter, or make any statement or speech or do any act which may tend to disturb or obstruct any lawful officer in executing his office, or which may tend to instigate others to cabal or meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the government, or who shall knowingly conceal such evil practices, shall be punished by a fine not exceeding $2,000 or by imprisonment not exceeding two years, or both, at the discretion of the courts."
sage to Congress "was a bullying speech which the Senate in a stupid answer had echoed with more servility than ever George III experienced from either House of Parliament."
At the same time a statute was passed, called the Alien Law, which declared "that it shall be lawful for the President to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable ground to suspect are concerned in any treasonable or secret machinations against the government, to depart," etc. The President, by this statute, was made judge of what was dangerous to the peace and safety of the United States. He was permitted to determine what was a reasonable ground to suspect a man of secret machinations and, having determined as judge this judicial question, he was permitted to send the man out of the country. Thomas Jefferson, writing to Abigail Adams, wife of John Adams, years after these acts were passed, said of these alien and sedition laws that he considered them "unconstitutional, and a nullity as absolute and palpable as if Congress had ordered us to fall down and worship a graven image." The result of these acts was that the old Federal Party was swept out of power, and for forty years Jefferson and his successors in the Presidency carried on the government.
The generation that framed the Constitution looked upon the document as most imperfect, but they adopted it after a most bitter experience under the Confederation. Having adopted it, like good Americans, they set out to make the Constitution popular, and they praised it far beyond its merits. The result was so complete a can
onization of our Constitution as to form an obstacle to its amendment. The men who framed it were men of the greatest constructive statesmanship which our country has ever produced, and the Constitution which they prepared was indeed a blessing to the people during the eighteenth century, perhaps well along into the nineteenth century.
In those days the people were much more jealous of power than now, and more vigilant in examining the actions of their public servants. George Mason, in giving his reasons for not signing the Constitution, said:
"This government will commence in a moderate aristocracy. It is at present impossible to see whether it will, in its operation, produce a monarchy or a corrupt, oppressive aristocracy. It will probably vibrate some years between the two and then terminate in the one or the other." It will never terminate in a monarchy in name. The forms of a democratic government charm the people long after the spirit of democracy has fled. Politicians are wise enough to appreciate this fact, and to continue with scrupulous care the form of a democracy. If the people can be aroused to change the conditions of amendment so that the change in our civil life will be accompanied by changes in our fundamental law, the republic will live on in fact as well as in form for a long period of time. But if our original Constitution is left unamended, if the limitations which it imposes upon popular government are continued to hide the corruption which exists, and the party in power continues irresponsible to the popular will, the days of real liberty to the people are numbered. If consolidation, centralization,
and usurpation in the National Government continue, long before we reach the point where Washington rules the United States, as Paris rules France, the spirit of liberty will have ceased.
We will now see to what extent the Constitution has changed with time, to what extent it has bent to the force of circumstances, to what extent the Executive and Congress and the courts have set it aside to meet the supposed necessities of great crises.
USURPATION IN THE CIVIL WAR AND RECONSTRUCTION PERIOD
"When dangers thicken, the only device may be the Roman one of a temporary dictatorship. Something like this happened in the War of Secession, for the powers then conferred upon President Lincoln, or exercised without Congressional censure by him, were almost as much in excess of those enjoyed under the ordinary law as the authority of a Roman dictator exceeded that of a Roman consul."
"In the plenitude of their powers as absolute rulers the generals" (of the reconstruction period) "were above the constituent assemblies of the inchoate new states as distinctly as they were above the governmental organs of the expiring old states."
Those pitiless years of reconstruction! worse than the calamities of war were the 'desolating furies of peace.'"
USURPATION IN THE CIVIL WAR AND RECONSTRUCTION PERIOD
THERE is, in the mind of the younger generation which has come up since the war, a tradition of an attack on the Union by men who believed in state rights. By reason thereof state rights, in their mind, has a bad name. The usurpation of power by the Government in our day is occurring in times of peace and so secretly and so all-pervasively that men have become accustomed to it, and are not moved as they were by such violent wrestings of liberty from large bodies of people as occurred in many states during Reconstruction days. The period of the Civil War and Reconstruction, better than any other in our history, shows these violent usurpations of power. During the war, necessity took the place of the Constitution, and we see the written guarantees of liberty grow dim in the smoke of battle. During the Reconstruction period, however, with no necessity to justify their action. Congress established a despotism in nearly every one of the Southern States, which, when well known and fully understood by the younger generation of to-day, will be condemned by them for its cruel injustice.
There is no statute of limitations in the law of cause and effect, and the usurpations of the war and Recon-
struction days are the fundamental causes of the existing conditions to-day. Not only the clear, unquestioned acts of usurpation of that period deserve examination, but the origin of the great centralizing forces coming out of protective tariffs and national banks and a paper currency and other legacies of like kind from the Civil War are worthy of the reader's attention. It is not a pleasant duty to recite the acts that make the darkest picture in all American history, and nothing short of averting usurpation on the part of our National Government to-day can justify such a recital.
Early in the Civil War President Lincoln by proclamation authorized General Scott to suspend the writ of habeas corpus at any point on the military line between Philadelphia and Washington. The portion of the country covered by the proclamation was not in insurrection, and the publishing of the proclamation left hundreds of thousands of people in a region where there was no war without any protection from this writ. There was much doubt as to whether the President, under the circumstances, had a right to suspend its operation. Story and other writers upon the Constitution had maintained that Congress alone had the right to suspend the writ and the United States Supreme Court had indicated its opinion to that effect.1 In 1807, when an act was proposed suspending the writ in connection with the Burr conspiracy, there was no intimation in Congress or the country that the power was in the President.2
1 Bollman v. Swartout, 4 Cranch, 75. 2 Dunning, Essays on the Civil War and Reconstruction, p. 41.
Without warrant and without any sworn statement, but merely upon an order of the Secretary of State or the Secretary of War, hundreds of men were arrested for the expression of words construed as tending to inflame party spirit or as sympathetic with the Southern cause, and hurried away to Forts Lafayette, Warren, McHenry, Delaware, Mifflin, Old Capitol Prison, penitentiaries and military camps in the different parts of the country. So many arrests were being made that an attempt was made to test the validity of the President's action. In 1861 one John Merryman was held in detention at Fort McHenry by General George Cadwalader, under one of these orders of Secretary Seward, on a charge of treason. An application was made to Judge Taney, Chief Justice of the United States Supreme Court, for a writ of habeas corpus requiring the production of the prisoner before the judge on the ground that he was wrongfully detained. Chief Justice Taney signed the writ commanding General Cadwalader to produce Merryman before him and show cause for his detention. When the marshal of the United States Court presented the writ to General Cadwalader at the fort, Cadwalader refused to obey it, and when Taney issued a body attachment against him the general shut the marshal out of the fort. Thereupon the chief justice wrote an opinion as to the law, which was sent to the President, holding that the prisoner was entitled to his liberty and should be discharged and that Congress alone had the right to suspend the writ of habeas corpus. Lincoln ignored this, but later, in a message to Congress, asserted his right to suspend the writ of habeas corpus without limitation or interference.
On September 24, 1862, the President issued a proclamation ordering that all persons discouraging voluntary enlistments, resisting military drafts, guilty of any disloyal practices, or of offering aid and comfort to the rebels, should be subject to martial law and liable to trial by a military commission, and that the writ of habeas corpus should be suspended in respect to all such persons arrested or held by military authority. It is to be observed that this last order of the President applied to all parts of the North where there was no insurrection, yet it caused the arrest of men without warrant, detained them without a hearing, and convicted them of treason and murder by a court-martial without a jury and without observing a single one of the guarantees in the Bill of Rights of the Constitution.
The writ of habeas corpus was secured to English people by the Great Charter which, Mr. Hallam tells us, was sent to all the sheriffs of England, was kept posted in each cathedral and church, and publicly read twice a year, accompanied by solemn sentences of excommunication against all who should infringe it, and provided that "any judgments contrary to these provisions should be invalid and 'holden for naught.'" This charter, made sacred by these sanctions and handed down for five hundred years by the English people, was deliberately disregarded. Thousands of men, without any evidence whatever of treasonable words on their part, were dragged from their homes to the different fortresses of the government upon a mere telegram from Washington to a United States marshal or even a police officer of a state. The newsboys of the street
were arrested for the offense of selling newspapers which some military commander disapproved. Old men of seventy were dragged from their beds at midnight and hurried to prison by squads of soldiers. Many loyal men of the North were shocked by these brutal arrests, and all classes of men rose up in protest against such usurpation of power.1 Even John Sherman wrote to his brother of "a wanton and unnecessary use of power to arrest without trial."
There lies before me as I write, a book under the title of "The American Bastile," written by one John A. Marshall, bearing date of August, 1869, in which he describes the circumstances of the arrest of seventy citizens imprisoned in these fortresses from all of the Northern States except New Hampshire, Rhode Island, and Wisconsin. Among them were foreign ministers, United States senators, members of Congress, members of state legislatures, judges, lawyers, ministers, doctors, farmers, editors, merchants, and men from all the other walks of life. The details connected with the arrests of these men, as described by him, are as terrible as those accompanying the state arrests in Russia today, and one draws back from his vivid descriptions with doubt lest perhaps Mr. Marshall's experiences caused him to exaggerate the conditions.
But we are not dependent upon his statements for the facts. A few years ago the United States Government published the records of these different fortresses showing these arrests and the names of many of the prisoners, the time when they were brought to the place of 1 Peck, Twenty Years of the Republic, p. 114.
imprisonment, the records made by the keepers of the fortresses, and the correspondence between the relatives and Secretary Seward.1 These records, by the Government's own statement, show that hundreds of simple-minded men living in country villages in different parts of the United States had unwittingly spoken a word now and then which political adversaries had construed as evidence of treasonable intent. Information was given to the War Department or to the Department of State, and the matter was laid before some United States marshal or police officer, for all police officers of any state or town or district were authorized to arrest and imprison. These published prison records have a most suspicious appearance. Descriptions are given of many of the men, but not their names. Even their residence in many cases is not disclosed. Nothing is said of the nature of their offenses. There, far away from their homes, they were imprisoned by the government for months, until the influence of their Congressman or of other powerful friends secured their release. The practices of Russia to-day of casting men into solitary dungeons and keeping them for months without trial, and of finally trying them at night by drumhead court-martials and condemning them without any of the safeguards of English law, is merely a repetition in almost every feature of the action of our National Government toward its citizens in the Civil War.
Such a storm of indignation arose from the people in every part of the North at these arrests that on 1 War of Rebellion House Documents, vol. lxvii.
March 3, 1863, Congress authorized the President during the Rebellion to suspend the privileges of the writ of habeas corpus in any case throughout the United States or any part thereof. This authorization provided for the discharge of any person held in duress, upon the failure of the Federal Jury sitting in the district where the imprisonment occurred to indict at its next session after the arrest. To secure action on the part of the grand juries and give them opportunity to investigate the cases, it was provided that the officials having charge of the prisoners should present lists to the court in each judicial district of the United States. In case of failure to indict them it was provided that they be released. But few indictments were ever obtained, the arrests proving unwarrantable in nearly all of the cases.
In connection with the act of March 3, 1863, an act of indemnity making the prior illegal acts of the President legal, and relieving him from all liability, was passed by Congress. It also provided that for every arrest caused by him in the future he should be free from legal liability. The military commissions with authority to try the people arrested were continued. The same act provided that in case an action was brought in any state court against an officer acting under an order of the President or his secretaries, to recover damages for an arrest or false imprisonment, the officer thus sued should have the right to apply to the United States Circuit Court in the same district in which the action was brought, and said court, by an order or writ, could remove the case to the United States Circuit Court to be tried there as if origi-
nally commenced therein. The United States Supreme Court, however, declared this law unconstitutional.1
On September 15, 1863, Mr. Lincoln proclaimed a general suspension of the writ of habeas corpus, limiting it to persons held as prisoners of war, spies, or aiders or abettors of the enemy. The words "aiders or abettors " were defined by him as follows: "He is to be an enemy who seeks to exalt the motives, character, and capacity of armed traitors; to magnify their resources, etc. He who overrates the success of our adversaries or underrates our own, and he who seeks false causes of complaint against our government, or inflames party spirit among ourselves and gives to the enemy that moral support which is more valuable to them than regiments of soldiers or millions of dollars." United States deputy marshals and police officers continued to determine on their own judgment whether the citizens overrated the successes of the South or underrated the successes of the North. They continued to determine the "false causes of complaint" against the officers of our government, and hundreds more men were hurried to prison.
Finally, after the war had ended, and thousands of people had been arrested who lived far removed from the seat of war, the following case reached the United States Supreme Court, which determined that the Government had no right to arrest men in the North without warrant and to try them before military commissions. On August 13, 1864, Lambdin P. Milligan, a lawyer 1 The Justices v. Murray, 76 U. S., 274.
residing at Huntington, Indiana, delivered a political speech at a large meeting at Fort Wayne, Indiana. The speech criticised the National Government, and particularly Governor Morton of Indiana, who at that time was a candidate for reflection. On October 5, 1864, Milligan was arrested and taken to Indianapolis before Brevet Major General Hovey, military commandant of the district of Indiana. On the 21st of that month he was placed on trial before a military commission, being charged with conspiracy against the Government of the United States, offering aid and comfort to rebels, and of disloyal practices. He was found guilty and sentenced to death. He contended that the military commission had no authority to try him or condemn him, and thereafter petitioned a United States Court judge for a writ of habeas corpus. Upon denial, an appeal was taken to the Circuit Court, which, being divided upon the question of his right to the writ, certified the matter to the United States Supreme Court.
In December, 1866, the highest court of the nation, for the first time, had an opportunity of determining the right of the United States Government to make these arrests and try the persons arrested under military commissions in portions of the United States removed from the seat of war. Justice David Davis wrote the opinion on behalf of the court, holding that the military commission had no jurisdiction to convict Milligan, and said:
"It follows from what has been said on this subject that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal
justice according to law, then, on the theater of active military operations, where war really prevails, it is necessary to furnish a substitute for the civil authority thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws again have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a great usurpation of power. Martial rule can never exist where the courts we open, and in the proper and unobstructed exercise of their jurisdiction, it is also confined to the locality of actual war." 1
There was talk among the radical men of impeaching the judges, and John A. Bingham, a member of the House of Representatives, and a bitter partisan, said:
"Let us sweep away at once every appellate jurisdiction in all cases, if the court by virtue of its original jurisdiction usurps the power to decide political cases and defy a free people's will." Thaddeus Stevens, referring to the same case, said in the House of Representatives, "That decision, although in terms and purposes not as infamous as the Dred Scott decision, is yet far more dangerous in its operation upon the lives and liberties of the loyal men of this country."
There is a story, one of the many attributed to Mr. Lincoln, in which he is reported to have said to his Secretary of the Treasury: "The South has violated the Constitution to break up the Union; I am ready to violate it to preserve the Union; and between you and me, 1 Ex parte Milligan, 4 Wallace, 2.
Chase, before we get through this Constitution is going to have a tough time."1 It is certain at least that he wrote to Mr. Hodges on April 8, 1864, "I felt that measures, otherwise unconstitutional, might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the Union. Right or wrong, I assumed this ground and now avow it."2 There is no evidence that Lincoln himself ever personally ordered any of these arrests. The lovable character of Mr. Lincoln, his reconstruction of some of the Southern States upon liberal and humane terms, his last words of mercy toward the South, his sweet and gentle life and noble purposes, will endear him forever to the American people, and we review these acts of his administration only for the purpose of showing the danger of such usurpations of power.
In August, 1861, Congress passed an act known as the Confiscation Act. This act directed the President to cause the seizure of all the property of whatever kind belonging to specified classes of persons, namely: officers of the rebel army and navy, officers of the civil administration of the Southern Confederacy and of its so-called Federal State judges, and persons owning property in a loyal state who should give aid and comfort to the Rebellion. The property so seized was to be proceeded against by action in rem in the United States courts, and the proceeds were to be used for the support of the army of the United States. Of this act. Professor
1 Bradford, The Lessons of Popular Government, vol. II, p. 390, note.
2 Bryce, The American Commonwealth, vol. i, p. 388, note.
Dunning says:1 "This act assumed the power in Congress to deprive several millions of persons of all their property, and this by simple legislative act. By the theory of our Constitution, such power must be granted by the organic law, or be inferable from some clearly granted power. There was no claim of an express grant. By implication, the power was held to be deducible from the clauses authorizing Congress 'to declare war,' 'to make rules concerning captures on land and water,' 'to provide for calling forth the militia to ... suppress insurrections,' and finally, 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.' On the other hand, the Constitution contains the following prohibitions: 'No bill of attainder shall be passed'; 'no person shall be ... deprived of . . . property, without due process of law; nor shall private property be taken for public use without just compensation '; and finally, 'no attainder of treason shall work . . . forfeiture except during the life of the person attainted.' The exercise of authority under the grants enumerated involved of necessity the violation of these prohibitions. Respect for both at the same time was inconceivable."
Everyone acquainted with the Civil War who has carefully watched events since that time must have seen a gradually accelerated movement of the centralization of government commencing at that time. This was brought about by the government's issue of legal-tender notes, by the creation of our national banking system,
1 Dunning, Essays on the Civil War and Reconstruction, pp. 30, 31.
and especially by the protective tariff then instituted and since continued. Hamilton, in his masterly statement on the currency, said that bills of credit and paper emissions were expressly forbidden to the states by our present Constitution, and that the spirit of that prohibition extended to the National Government. Notwithstanding that it was the intent of the framers of the Constitution to prohibit the National Government, as well as the states, from making paper money legal tender, Congress, in 1862, declared such paper lawful money and a legal tender in payment of public and private debts, and authorized the issue of $150,000,000 in notes, our present greenbacks. Never before had a statute of the United States made anything but gold and silver coin a legal tender in payment of debts. The United States Supreme Court, at a later date, in a suit where these notes had been tendered and rejected in payment of a debt existing before the war, held that the act making them legal tender was unconstitutional; but afterwards, when the court was differently constituted, reversed its own decision. Without discussing further at the present time the constitutionality of this issue, all will acknowledge that the exercise of the power has made the government all powerful in banking and commercial affairs. When a government issues the money of the country and has the tempting power to increase the amount for use in aiding private bankers, such power makes the government almost omnipotent.
On February 5, 1791, the first national bank was established. At that time there were only three banks in the United States, and it was contended that it would
secure the collection, transportation, and circulation of the national revenue from one part of the country to another. This was thought to be a sufficient justification for its creation. It was proposed in the Constitutional Convention to insert a provision for the creation of such a corporation, but this was opposed by James Madison and many of the other members, and was defeated.1 When the question of the renewal of the bank charter came up in 1810, Henry Clay declared it as his opinion that the Constitution conferred no power upon Congress to charter a bank or to renew its charter. Clay well said, "Is it to be imagined that a power so vast would have been left by the wisdom of the Constitution to doubtful inference? ... If, then, you could establish a bank to collect and distribute revenue, it ought to be expressly restricted to the purposes of such collection and distribution."2
Now the original bank was permitted for the restricted purposes of the collection and distribution of the moneys of the United States Government, which at that time were collected at different points throughout the whole country. Because of the small number of banks, it was regarded as a necessary means of carrying on the fiscal powers of the government. When the national banking system was established during the war there were ample banking facilities throughout the country. The National Government, however, by passing an act imposing a tax of ten per cent upon the circulation of these state banks, actually destroyed them and sub-
1 4 Elliot's, Deb , pp 413, 474, 611; 5 Elliot's Deb , p. 440. 2 4 Elliot's Deb , p. 458.
stituted its vast banking system, now counting upward of fifteen thousand banks scattered in every city and village of the land.1 It is true that the United States Supreme Court, in the case of McCulloch v. Maryland, sustained the constitutionality of the act renewing in 1816 the charter of the bank of the United States. But the charter of this bank was renewed as the fiscal agent of the government at a time when there were comparatively few banks. The national banking system, however, was created, as we have said, to supplant the State banks, and did supplant them by taxing their circulation out of existence. The result of the national banking act was the creation of thousands of banks, not a single bank.
Senator Beveridge, of Indiana, in The Reader of March, 1907, says: "State rights denied the existence of this power, 'the power of the general government to create a national bank,' and it seemed that state rights had the best of the argument, contending that the national government has only the enumerated powers, and has no power except such as is expressly delegated to it by the Constitution." However this may be, the creation of thousands of banks scattered all over the land more than any other one cause has centralized power in the National Government. Once admit the authority to create corporations by the government, and the other authority to interfere with the internal affairs of the states through the power to regulate commerce, and it would seem to follow that Congress may enact a general law for the creation of as many corporations as promoters desire, may control railways and all means of 1 Veazie Bank v. Fenno, 8 Wallace, 533.
intercommunication and reduce the states to insignificance.
Under the cover of levying customs duties at seaports, Congress, by the war tariffs, took control of the whole manufacturing industry of the country. About every manufacturer in the whole land is now looking to Congress for the creation of prosperity by obstructing foreign commerce through high protective tariffs. Under the power to regulate commerce the government destroys foreign imports or cripples them to such an extent as will benefit the few thousands who manufacture the same kind of goods in our own country. This is done at the expense of tens of millions who buy them at enhanced prices, and it is the exercise of the most despotic power conceivable on the part of government. In this way the United States Government has come into close touch with these manufacturing interests all over the land, and is actually fixing the price of the necessaries of life for eighty millions of people. It exercises the power of determining the price of every shred of clothing which a man wears, of every piece of furniture in his home, of every piece of lumber, every nail, every piece of glass that enters into the construction of his house. Nobody would doubt that a law attempting to fix the prices at which the domestic manufacturer could sell his product would be unconstitutional, yet the Government indirectly, by means of its taxing power, and its regulation of foreign commerce, passes a law which enhances the price of the necessaries of life to everyone. This despotic power in government, more than anything else, has brought about corruption. It has turned the
eyes of fifty thousand manufacturers to Washington for governmental privilege. It is simply a usurpation of power on the part of the government exercised for the benefit of the few at the expense of the remainder of its citizens.
President Lincoln stated that, in his opinion, it was impossible for a state to secede from the Union. He reaffirmed his statement in his first message to Congress, and in his Non-Intercourse Proclamation of August 16, 1861, declared, "Not the states but the inhabitants of the states were in insurrection against the United States." The theory which he maintained throughout the war and down until his death was that the state was indestructible either through its own act or through the act of the United States Government. During his lifetime he established a state government in Louisiana and one or two other of the Southern States, and he maintained until the day of his death that the states were in the Union and had never been out of the Union. In the last speech which he ever made, April n, 1865, four days before his death by assassination, he said: "I am much censured from some supposed agency in setting up and seeking to sustain the new state government of Louisiana. In this, I have done just so much as, and no more than, the public knows."
Never once in diplomatic correspondence or in proclamations or in any act of Congress during the war, did the Federal Government directly admit the existence of a state of war in the South. The carrying of mails and the performance of all governmental functions in the South continued during the war so far as
the Government was able to carry them on. At the close of the war the United States courts commenced to sit in the circuits of the South and the United States Supreme Court commenced to hear appeals from the Southern States. Lincoln's view of the indissoluble character of the Union was sustained by the United States Supreme Court. Chief Justice Chase, speaking for the Court, said of the ordinances of secession: "They were utterly without operation in law. The obligations of the state, as a member of the Union and as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the state did not cease to be a state, nor her citizens to be citizens of the Union."1
President Johnson adopted the attitude of Lincoln toward the Southern States and tried to carry out the dead President's ideas. He established a state government in each of the Southern States. The thirteenth amendment to the Constitution was submitted to many of these states and was approved by them, so that it would seem that their legality was recognized by Congress. The temporary organization of the Southern States under the proclamations of Presidents Lincoln and Johnson were permitted to remain in force until the spring of 1867. The Republican Party in the House of Representatives, led by Thaddeus Stevens, openly admitted that they desired to reconstruct the Southern States so as to destroy the Democratic majorities which had existed there before the war. In the language of Mr. Stevens, they maintained that the Southern States were only "dead carcasses lying within the Union. . . . 1 Texas v. White, 74 U. S., 726 of opinion.
They have torn their constitutional states to atoms and built on their foundations fabrics of a totally different character. Dead men cannot raise themselves. Dead states cannot restore their own existence 'as it was.' Whose especial duty is it to do it? In whom does the Constitution place the power? "1 And he concluded that that power was in the Congress and that the Southern States might be treated as subject provinces and new states created therein.
Accordingly, Mr. Stevens, as leader of the House, with a rancor of hatred never exceeded, devised a law for the reconstruction of the Southern States as odious for tyranny and cruel injustice as was ever conceived by the perverse intelligence of man. On March 2, 1867, Congress passed, over the President's veto, a bill entitled "An Act to Provide for the More Efficient Government of the Rebel States." It was, however, an act for the more thorough military subjection of the Southern States and is known as The Reconstruction Act. This act recited that no legal state government or adequate protection of life and property existed in the states of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas, and it provided that these states should be divided into five military districts under the command of officers of the army, assigned thereto by the President. Each of these commanders was to have under his control troops enough to enforce his authority. They were endowed with unlimited power over all the people of each district, the will of the military commander tak-1 Cox, Three Decades of Federal Legislation, p. 367.
ing the place of the law. He could declare anything a crime which he chose to call so, and condemn and punish whomsoever he pleased. He was empowered to arrest the people of his department without warrant, accusation, or proof of probable cause. He could have them tried before local magistrates or before himself. He was empowered to remove all local magistrates if he desired. If, without his permission, a state court presumed to exercise legal jurisdiction over the trial of a person arrested he could break up the trial and punish the judge and the jurors.
In vetoing the bill, President Johnson said: "Such a power has not been wielded by any monarch in more than five hundred years. In all that time no people who speak the English language have borne such servitude." The States of Mississippi and Georgia hastened to commence actions in the United States Supreme Court, asking the court to enjoin the President from the enforcement of this unconstitutional law which they declared would absolutely destroy the existence of their states, but the court held that it had no jurisdiction to enjoin the action of the President.1
The supplementary act of reconstruction of July 19, 1867, provided that the commanders of any district might remove any state, municipal, or other official and fill his place subject only to the disapproval of the general of the army; and it was made a duty of the commander "to remove from office all persons who are disloyal to the government of the United States or who
use their influence in any manner to hinder, delay, prevent, or obstruct the due and proper administration of this act and the acts to which it is supplementary." The act provided that no commander should be bound by any opinion of any civil officer of the United States. General Schofield was assigned to the first district, which included Virginia; General Sickles to the second district of North and South Carolina; General Pope to the third district of Georgia, Alabama, and Florida; General Ord to the fourth district of Mississippi and Arkansas, and General Sheridan to the fifth district of Louisiana and Texas.
Now observe how some of these generals ruled their departments. General Sickles prohibited the manufacture of whisky in North Carolina, saying that the grain was needed for food, and he prohibited the hotel keepers from selling intoxicating liquor; he created a trustee of Newbern Academy, enacted stay laws in North and South Carolina, and abolished imprisonment for debt; suspended the sale of property upon execution for liabilities contracted before December 19, 1860, and suspended the foreclosure of mortgages for one year. In his mightiness he decreed that the wages of agricultural labor were liens upon the crops; created homestead exemptions for those having families dependent upon their labor; abolished distress for rent;
ordered that the currency of the United States be recognized as legal tender; decreed that absent debtors be exempted from attachment, and forbade bail in suits brought to recover ordinary contract debts. He prohibited discrimination in public conveyances between
citizens because of color, and decreed that anyone injured by such discrimination had a right of action for damages. He acted as a reviewing court and set aside a decree of the South Carolina Court of Chancery providing that the portion of a fund raised to remount a Confederate cavalry force in 1865 remaining unused was to be returned to the contributors, and he judicially determined that the money belonged to the United States.
General Pope removed the mayor, the chief of police, and other municipal officers of Mobile, and filled their places with "efficient Union men"; decreed that the printing patronage in his department should be given only to the newspapers that did not oppose reconstruction; allowed Republican candidates for office in his department to act as election officials, charged with the supervision of the voting in which they had an interest, and authorized them to receive the votes of persons who were not registered in the precinct in which they offered their votes.
General Sheridan, at New Orleans, removed Governor Wells, of Louisiana, and appointed another man as governor in his place; decreed that colored men should be accepted as jurors; abolished the Louisiana Levee Board and assigned its duties to commissioners of his own appointing. He also abrogated an act of the Texas Legislature arranging the judicial districts in that state, upon the ground that the act, as he believed, had been passed for the purpose of legislating two Union judges out of office.
General Ord suspended proceedings looking to the
sale of an estate on account of a deed of trust for money due for the purchase of negroes; commanded that illicit stills and their products be sold for the benefit of the poor on the ground that "poverty increased where whisky abounds"; suspended until the end of the year 1867 the judgment sale of lands under cultivation, crops, or agricultural implements, in actions arising before January 1, 1866; and caused the arrest and conviction by court-martial of W. H. McCardle, the editor of a Vicksburg newspaper, on the charge that he had published articles in his paper to incite the people to a breach of the peace and to impede reconstruction.1
McCardle procured a writ of habeas corpus from Judge Hill of the United States District Court. Upon the return thereof General Ord set forth that he held the prisoner by authority of the acts of Congress known as the Reconstruction Acts, and the court dismissed the writ. McCardle appealed from the decision to the Circuit and then to the Supreme Court of the United States, which denied a motion to dismiss his appeal and heard the case argued. The case, inasmuch as it involved the constitutionality of the Reconstruction Acts, was argued very fully before the United States Supreme Court between the second and ninth days of March, 1868. Mr. Rhodes says:2 "The constitutionality of the Reconstruction Acts was involved, and as five out of the nine Supreme Court judges believed them unconstitutional (so an apparently well-founded report ran) the
1 Dunning, Essays on the Civil War and Reconstruction, pp. 162 � 72.
2 Rhodes, History of the United States, vol. vi, pp. 96, 97.
Republicans in Congress were much alarmed. The House passed a bill requiring- two thirds of the judges to concur before any law should be deemed invalid, but this was never brought to the Senate from its Judiciary Committee. Later, however, the two Houses agreed on an act passing the same over the President's veto (March 27, 1868) which, though general in its terms, took away from the Supreme Court its jurisdiction in the McCardle case and the appeal was therefore dismissed."1
This method of heading off appeals was a common one in Reconstruction days. About every important act passed in that period when it once reached the United States Supreme Court was declared unconstitutional. The Tenure of Office Act was another illustration of such methods, practically taking away from President Johnson his right of removal from office. He removed Stanton, Secretary of the War Department, putting General Thomas in his place. An altercation and arrest followed, and an effort was made by the attorney-general to raise the question of the constitutionality of this act by appeal, but the complaint of Secretary Stanton was withdrawn and the effort to test its constitutionality thus destroyed.
In 1789 the leading members of the House of Representatives discussed at great length the power of the President of the United States to remove a Secretary of the Department of Foreign Affairs from office without the consent of the Senate, and it was determined, by a vote of thirty-four to twenty, that the President had full 1 Ex parte McCardle, 6 Wallace, 634, 7 Wallace, 512.
power to remove without the concurrence of the Senate.1 The determination then made was followed until the administration of President Johnson, and then the Tenure of Office Act was passed for the purpose of depriving him of the right of removal. Since that time the right has been acknowledged and to-day is unquestioned.
The Reconstruction Act provided for the election of a constitutional convention, and the formation of a constitutional government in each of the Southern States, excluding the greater part of the white voters of those states from taking part in the formation of their government. Then Congress made their adoption of the fourteenth amendment to the Constitution a condition of its receiving as members the representatives of the states which had framed constitutions.
Congress, in April, 1866, passed what was known as the Civil Rights Act. On March 31, 1870, it passed what was known as the Enforcement Act; again on February 28, 1871, a third act amending the Enforcement Act; and on April 20, 1871, a fourth act amending the Enforcement Act. All of these laws were unconstitutional. The last amendment provided as follows: "If two or more persons in any state or territory conspire or go in disguise upon the highway or upon the premises of another for the purpose of depriving, either directly or indirectly, any persons or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any state or territory from
1 Elliot's Deb., pp. 350-404.
giving or securing to all persons within such state or territory the equal protection of the laws; he or they are guilty of a misdemeanor and, upon conviction, liable to a fine of not less than $500 or greater than $5,000, and imprisonment for not less than six months nor more than six years, or both said fine and imprisonment."
This law was known as the Ku Klux Law, and it sought to give to the National Government the power to execute the criminal laws in each of the states, especially in each of the Southern States where it was alleged that the Ku Klux were committing depredations upon the property and taking the lives of colored people. For eleven years this continued to be enforced. Finally, a case deciding their constitutionality reached the United States Supreme Court, and that court held that the law was not directed to the act of a state, but only against the acts of individuals gathering for the commission of crime, and that the fourteenth amendment to the Constitution did not apply to such a condition; that the law was directed merely against ordinary crime in the state, of which the state courts had exclusive jurisdiction, and that the law was unconstitutional and void.1
On March 1, 1875, General Grant approved a bill known as the Civil Rights Bill, the first bill mentioned above being unconstitutional. Its object was to secure to negroes equal rights in inns, public conveyances, and places of public amusement, and to prevent them from being deprived of the right of sitting on juries. Eight
1 United States v Harris, 106 U. S., 629, United States v. Cruikshank, 92 U. S., 542.
years later the United States Supreme Court declared the first and second sections of the act null and void, holding that so long as a state did not pass a law depriving the negro of these rights the Supreme Court could not interfere, since the prohibition of the fourteenth amendment was directed against a state which discriminated against a citizen for any reason, and deprived him of the civil rights which other citizens enjoyed; and that, under the fourteenth amendment, Congress had no authority to attempt to regulate the rights of the citizens of the states, thus leaving the whole question of the social rights of a citizen where it had ever belonged � to the state governments.1
The constitutions in many of the states, reorganized by carpetbag politicians, contained many provisions intended to prevent the Southern leaders, who had had connection with the war, from even earning their livelihood. In the Constitution of Missouri there was a provision to the effect that every person who had aided and sympathized with the South was incapable of holding any office of honor or profit or trust in the state. No such person could be an officer, trustee, or manager of any public or private corporation, he could not act as a professor or teacher in any educational institution or in any common school, nor could he hold any real estate or other property in trust for any church, religious society, or congregation. An oath of loyalty was required as a condition precedent to his exercising the calling of a bishop, priest, deacon, clergyman, or lawyer, such oath being that he had never directly or indirectly done Civil Rights Cases, 109 U. S., 1.
any of the acts of disqualification against which the amendment was leveled.
Sixty days after this Constitution took effect no person was to be allowed, without first taking this oath, to practice as attorney at law, or to act as priest, deacon, minister, clergyman, etc., of any religious persuasion. If he continued without taking such oath after the sixty days he was liable, on conviction thereof, to be punished by a fine of not less than $500, or imprisonment of not less than six months in the county jail, or both, at the discretion of the court. The Rev. Mr. Cummings, a priest of the Catholic Church and a citizen of Missouri, was indicted and convicted in the Circuit Court of Pike County for continuing his work as priest without taking such oath. He was sentenced to pay a fine of $500 and to be committed to jail until the fine and the costs were paid. On appeal from this decision to the United States Supreme Court, the question was presented whether this act was not in fact a bill of attainder, and whether it was not obnoxious to that clause of the Constitution of the United States which prohibited a state from passing such bill of attainder or ex post facto law. That court held the law ex post facto in its nature and reversed the decision of the state court.1
The Constitution provides that the times, places, and manner of holding the elections for senators and representatives shall be prescribed in each state by the legislature thereof, but that Congress at any time may
1 Cmnmings v. State of Missouri, 4 Wallace, 277; ex parte Garland, 4 Wallace, 333.
alter such regulations, except as to places of choosing the senators. No clause in the Constitution created so much opposition before the conventions of the adopting states. The conventions in North Carolina, South Carolina, Virginia, Massachusetts, Rhode Island, New Hampshire, and New York strongly remonstrated against it, but the people were assured that the National Government would never avail itself of the provision. For many years, however, after the Civil War and until well down in the eighties. Federal supervisors and marshals were empowered by a statute of Congress to supervise elections in every state where members of Congress were to be elected. They supervised the polls in New York and many other states where assemblymen, mayors, state and city judges were being elected. They often examined the ballots for these state officers, claiming that they were authorized to be present at the opening of all the boxes, those for state and local officials as well as those for Congressmen. By the provisions of the statute authorizing this provision the United States District Court could appoint two supervisors for each district, and the United States marshal could create as many deputies as he deemed necessary to aid him in enforcing the law. It is said that 15,000 supervisors and deputy marshals surrounded the polls at the general election of 1876, and many state officers were punished by the Federal courts for alleged violations of both the national statute and state laws at that election.
In the autumn of 1874 an election for members of the Legislature took place in the State of Louisiana.
On the face of the returns the Conservatives, or what were known as the white man's party, had a majority of five in a House of Representatives of one hundred and eleven members. The government of Louisiana had been so bad for many years under the control of the negro party that even the better class of negroes, becoming disgusted, deserted their party and voted for the white candidates. The Returning Board, controlled by Governor Kellogg and Marshal Packard, found that fifty-three Republicans and only fifty-three of what were known as the Conservatives had been elected, and rendered no decision as to the other five seats. A committee appointed by the United States House of Representatives to examine as to the act of the Returning Board, and as to the honesty of the Conservatives, whose members had been rejected because of alleged intimidation and fraud, consisting of Charles Foster, afterwards Secretary of the Treasury, William Walter Phelps, and Clarkson N. Potter, visited New Orleans and made their report to the effect that the action of the Returning Board was illegal, and that in substance the Conservative majority was procured by honest means. When, however, the Legislature came to assemble, General de Trobriand, of the army of the United States, entered the House of Representatives in uniform, his sword at his side and escorted by his staff. Furnished with an order by Governor Kellogg to clear the hall of all not returned as legal members by the Returning Board, he removed the five members by force, leaving the Republicans in control, who finally organized the House and proceeded to do business. The acts of
Charles I and of Cromwell, in removing members from the House of Commons by violence, ever since have been landmarks in usurpation. This act of President Grant and of his general ought to stand side by side with these early acts of tyranny.
Property of considerable value was abandoned from time to time by citizens of the Southern States during the Civil War, and was taken possession of and sold by the National Government and the proceeds deposited in the United States Treasury. On December 8, 1863, the President, pursuant to the authority of Congress, made a proclamation offering pardon to citizens of the South who would take a prescribed oath and return to their allegiance to the National Government. As an inducement to bring about this result the President promised restoration of all their rights of property except as to slaves, and offered to return to the owners of abandoned property the proceeds thereof in the United States Treasury. Thousands of Southern men availed themselves of this proclamation, and after the war many claims for the proceeds of such abandoned property were filed in the Court of Claims. The fact that the claimant had taken the oath after the proclamation, had availed himself of the conditions of the proclamation, and had received the pardon of the President was regarded as sufficient to entitle him to prosecute his claim before the court without other proof of his loyalty. On July 12, 1870, Congress passed, as a rider to the Appropriation Bill, a law providing that no prior pardon of the President should be admissible in evidence on the part of any claimant in
the Court of Claims in support of his claim for the proceeds of abandoned property, and that proof of his loyalty must be made irrespective of the effect of the proclamation of the President and his availing himself thereof; and that where the claim had been dismissed and the claimant took an appeal therefrom, that the Appellate Court, when it appeared that proof of loyalty depended alone upon such pardon, should affirm the judgment of the Court of Claims. This statute was declared unconstitutional as an infringement of the right of the President to grant such pardon and as destroying its effect.1
During all the period between 1789, when the first Congress under the Constitution convened, and 1863 the United States Supreme Court had declared only two statutes unconstitutional.2 It is true that in two other cases during that period the court had held that duties imposed upon it by the Congress were not judicial in their nature and that therefore they were under no obligations to perform them.3 In addition to the unconstitutional acts described in this chapter passed in the war and Reconstruction days, the United States Supreme Court declared four other acts of that period unconstitutional.4 Between the years 1863 and 1870 eleven
1 United States v. Klein, So U. S., 129-47.
2 Marbury v. Madison, 1 Cranch, 137 (1803); Dred Scott v. Sanford, 19 Howard, 393 (1857).
3 Heybum's Case, 2 Dall., 409 (1792), United States v. Ferreira, 13 Howard, 40.
4 Collector v. Day, 8 Wallace, 113; Hepburn v. Griswold, 8 Wallace, 603; United States v. Reese, 92 U. S., 214; James v. Bowman, 190 U. S., 127.
statutes were passed by Congress which were declared unconstitutional by the Supreme Court of the United States. During the same period the examination by the Supreme Court of several Congressional statutes was prevented by acts of Congress repealing the law allowing appeals to that court. So that during seventy-four years of the history of the country between 1789 and 1863 the United States Supreme Court declared two Congressional acts unconstitutional; while during the period from 1863 to 1870, a period of only seven years, eleven statutes were declared unconstitutional and many more would have been declared unconstitutional had the court ever had the opportunity to pass upon them. No facts could more strongly demonstrate that this era of the latter part of the Civil War and the Reconstruction Period was an era of usurpation than the decision of the highest court that so many statutes passed in that period were void as usurping the rights of the several states.
The importance of the facts which we have given are found in their violence. We, perhaps, have no reason for fear in this country that our liberties will be violently wrested from us. The danger is that they will be secretly undermined and gradually destroyed. The usurping acts of the war were white compared with the cold calculating despotism of Reconstruction days. Mr. Rhodes quotes Bishop Galloway, of Mississippi, as saying in 1903:1 "Those pitiless years of reconstruction! Worse than the calamities of war were the 'desolating furies of peace.' No proud people ever suffered such 1 History of the United States, vol. vii, p. 141.
indignities or endured such humiliation and degradation."
After the Battle of the Boyne, for more than a century England kept the Irish Catholics reduced to the condition of helots, attempting to extirpate their religion, excluding them from Parliament, from municipal office, from legislatures, and from the jury box. The prevailing party of reconstruction sought to accomplish the same results, not because they feared the South as England feared Catholicism, but for the selfish and wicked purpose of political supremacy. Senator Howe, speaking in the United States Senate in those days in behalf of the reconstruction policy of his party, said:
"Do senators comprehend what consequences would result necessarily from restoring the functions of those states! It will add fifty eight members to the House of Representatives, more than one fourth of its present membership. It will add twenty two members to the Senate; more than one half of the present membership. The Constitution designed the legislature to be independent of the Executive. But what independence has that legislature in which the executive at his pleasure may pour so many votes!"1
When General Terry, in command of the department which included the State of Georgia, ousted twenty-four Democrats from the Legislature and by his own appointment filled their places by Republicans, at the same time restoring a number of negroes who had been expelled, Carl Schurz declared in the United States Senate that these acts of General Terry's were usurpations. 1 Cox, Three Decades of Federal Legislation, p. 352.
Senator Henry Wilson, of Massachusetts, replied:
"Law or no law, we want to keep this state government in power." In the House of Representatives Thaddeus Stevens, with a malignity as bitter as characterized the leaders of the French Revolution, and that unscrupulous demagogue, Benjamin F. Butler, fired their followers with hatred and fanaticism to enact these pitiless and unconstitutional laws.
War is never done. It leaves its baleful seed for generations. We are suffering to-day from these usurpations. The exercise of such powers accustomed our people to the sight of tyranny, and as a partial result of those deeds our Government is being transformed. Already the Constitution by construction has been stretched to cover a multitude of conditions never anticipated by its makers; and we are face to face with the problem whether ours is a government under a written constitution and the laws made pursuant thereto, or whether it is a government by ambitious and usurping men.
"The only liberty that humanity can tolerate is the liberty that is under the law."
E. J. PHELPS.
"Reasonings from the excesses of liberty or the neglect of the people, in favor of arbitrary government, involve the tacit fallacy that perfect or at least superior wisdom and virtue will be found in such government."
"It is necessary to create in the multitude, and through them to force upon the leading ambitious men, that rare and difficult sentiment which we may term a constitutional morality * * * a paramount reverence for the forms of the constitution, enforcing obedience to the authorities acting under and within those forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts."
"Despotism often promises to make amends for a thousand ills; it supports the right, it protects the oppressed, and it maintains public order. The nation is lulled by the temporary prosperity which accrues to it; until it is roused to a sense of its own misery."
PRESIDENT ROOSEVELT, in his message of December, 1906, in justification of his criticism of Federal judges, said: "It is the only practicable and available instrument in the hands of free people to keep such judges alive to the reasonable demands of those they serve." These words might be invoked as a justification of what may appear, in this and the next chapter, to be a severe criticism of his executive action, but it would seem that the only limitations upon criticism, even of one holding the exalted position of head of the nation, should be those which justice, impartiality, and honest motives necessarily impose.
Before discussing the acts of the President which exceed his authority, let us observe for a moment the vast power which he legitimately exercises. All of the power necessary to execute the laws is conferred upon the President. It is true that there is an enumeration of executive powers, but in view of a recent decision of the United States Supreme Court,1 upon the like scope of judicial power in the Constitution, we might well assume that the powers enumerated as executive powers are not exclusive of such other powers as are necessary 1 Kansas v. Colorado, 206 U. S., 83.
to the execution of the laws. Besides ambassadors and members connected with the diplomatic and consular service, the President now nominates, subject to confirmation by the Senate, about 8,000 officials. On June 30, 1905, there were upward of 300,000 positions in the executive civil service, excluding- those of the diplomatic and consular service. At that time about 100,000 of them were not subject to the rules requiring the appointments to be made from competitive examinations. Under the Federal Rate Bill the Interstate Commerce Commission, which is appointed by the President, is given power to establish the freight rates of the commerce of over 80,000,000 of people, on 220,-000 miles of railway. What greater power could an ambitious President wish than the appointment and control of a commission which fixes the rates of freight and of passenger traffic on every interstate railway in the United States?
Unless the other departments of government, whose office it is to check executive usurpation, are backed by an effective public opinion, the executive has always the means of setting them aside or compelling them to subservience. The courts will not interfere with the President or the other executive officers of the government in the execution of their ordinary official duties, even when those duties require an interpretation of the law.1
The men who framed the Constitution and the state delegates who adopted it were disgusted with the feeble-ness which had been shown under the Confederation,
1 Miller v. Raum, 135 U. S., 200; Oil Company v. Hitchcock, 190 U. S., 316.
and they went to the other extreme in making the President the most powerful ruler, as it has turned out, in the world to-day. They were undoubtedly influenced by the fact that everyone looked to George Washington as the first President, and they little foresaw the terrible power which would be centered in the President when the United States would consist of forty-six states, extending from the Atlantic to the Pacific and embracing 3,500,000 square miles of territory, besides many dependent colonies. "The President," says Mr. Bryce, "enjoys more authority, if less dignity, than a European king."1"Within the sphere of national administration," says Mr. Fairlie,2 "his" (the President's) "effective personal authority is of more value than that of most constitutional monarchs of Europe or even of their prime ministers."
The French President is chosen for seven years by the national assembly, consisting of the Senate and Chamber of Deputies. He is given the power to execute the laws and the appointment of the officers of the government; but when the Ministry fails to receive the support of the Chamber he simply calls upon some member of the opposition to form a Ministry, and the Chamber of Deputies rules France through its ministers as the House of Commons rules England. Casimir-Perier resigned his office as President of the Republic of France within a few months after his election, saying that the President of the Republic exercised so little real power as to be entirely overbalanced by the omnipotence
1 American Commonwealth, p. 62. 2 National Administration of the United States, p. 41.
of the French Chamber of Deputies. The power of the President of the French Republic has been steadily declining, while the power of the Chamber of Deputies has been as steadily growing. The President is not responsible for his official conduct, his acts being countersigned by one of his ministers. He usually does not even attend cabinet consultations in which the policies of government are discussed. Sir Henry Maine described the French President as follows: "The old kings of France reigned and governed. The constitutional king, according to M. Thiers, reigns but does not govern. The President of the United States governs but does not reign. It has been reserved for the President of the French Republic neither to reign nor to govern."1
The King of Italy appoints the ministers when the ministry ceases to have the confidence of the popular branch of the legislature. His sanction is necessary to the validity of a law passed by the legislature, but he never refuses that sanction. Even the treaties which he makes, especially treaties of commerce, require the assent of both chambers. No act of the legislature becomes valid unless countersigned by a minister, and in Italy, as in France, the popular branch of the legislature actually carries on the government, the king himself being subject in most respects to their control.
The German Emperor, aside from his position as king of Prussia, does not possess powers so extensive as the President of the United States. The laws enacted by the Bundesrath and the Reichstag are enforced in the several states of the empire by local officers, and 1 Popular Government, Lowell, p. 251.
the German Chancellor rather than the Emperor has general supervision over their enforcement. The direct appointments to office by the German Emperor and his Chancellor are thus fewer than those of our executive department. Aside from his direction of the army and navy and the charge of foreign affairs as Emperor of Germany, he acts as the delegate of the confederated government in about all other matters under the direction of the Bundesrath. He has no veto. The German Emperor appoints and dismisses his ministers and they are accountable to him, not to the legislative power, just as the members of the cabinet are accountable to the President. They are the ministers of the king as the cabinet are the ministers of the President, and not at all, as in England, France, and Italy, the ministers of the parliamentary majority.
In Switzerland, the President of the Swiss Confederation is little known to the people and his powers are very limited. The federal laws are carried out generally by the authority of each canton, and even the army is under the management of the cantons, the central government, however, making the regulations, appointing the superior officers, and having the command in the field.
Kings have ever been the bugaboo of our American people; but the President of the United States to-day, in the legitimate exercise of his authority, exercises a greater power than any constitutional sovereign on the face of the earth, his power in Europe being exceeded only by that of the czar or the sultan. All the bulwarks of liberty were reared not against the English Parlia-
ment but against the English king. The same is true of all modern parliamentary governments. "Do not make me a king," said Cromwell, "for then my hands will be tied by all the laws which define the duties of that office, but make me director of the commonwealth and I can do what I please; no statute restraining and limiting the royal prerogative will then apply to me."
The President of the United States may approach the execution of his powerful office in the spirit of being a simple instrument of Providence, but if he is not endowed with the clearest head and most eminent common sense he will become so intoxicated by power as to imagine that he has become Providence itself. Inasmuch as all of his duties are not defined, and the exercise of those defined is discretionary, he can commit innumerable violations against the Constitution, and commit them in such a manner as to deprive the United States Supreme Court of all jurisdiction over the matter. There is no remedy but impeachment. For these reasons usurpations of power by the President are much more dangerous than by the Legislature. The command to the Roman dictator was to take care that the state received no harm; such indefinite commands and discretionary duties open endless avenues for the advancement of absolutism. But, say those who exalt the power of the President and contend that there is no danger to the people from his usurpations, he is restrained by the people, he is "the servant of eighty million sovereigns, whose soul-inspiring purpose is to serve his fellow-citizens."
Let us see if this fact is a safeguard against usur
pation. Louis Napoleon was elected President of the French Republic in December, 1848, by a large majority. In 1850 a law was passed restricting the suffrage and disfranchising about 3,000,000 voters. This law, as I remember, was passed with his tacit consent, but the wily President wished to be emperor. In order to be emperor he must appear as the champion of popular rights, so in 1851 he called upon the Chamber to repeal the disfranchisement law of 1850, and to restore the franchise to the 3,000,000 voters. They refused. Within about a month the Coup d'Etat of December 2d took place, the chief statesmen and generals of France were arrested in their beds, dragged off to prison, and his usurpation was approved by 8,000,000 electors. He was confirmed as emperor in November, 1852, by an overwhelming vote, and even so late as a few weeks before the Franco-German war his imperial rule was ratified by a large majority. During the whole of his reign the members of the Chamber of Deputies were elected by universal suffrage, and yet the rule of Louis Napoleon was a despotism.
"A bold President," says Mr. Bryce, "who knew himself to be supported by a majority in the country, might be tempted to override the law and deprive the minority of the protection which the law affords it."1 "The gloss of zeal for the public service," says Edward Livingston, "is always spread over acts of oppression, and the people are sometimes made to consider that as a brilliant exertion of energy in their favor which, when viewed in its true light, would be found a fatal blow to 1 Bryce, The American Commonwealth, vol. i, p. 64.
their rights. In no government is this effect so easily produced as in a free republic; party spirit, inseparable from its existence, aids the illusion, and a popular leader is allowed in many instances impunity, and sometimes rewarded with applause, for acts which would make a tyrant tremble on his throne."l The people who elect the President can make and unmake constitutions, and it is natural for a strenuous, ambitious President, when sustained by the people, to feel that he is endowed with powers beyond the constitution.
Article XXX of the Massachusetts Constitution of 1780 runs thus: "In the government of this commonwealth the legislative department shall never exercise the executive and judicial power, or either of them; the executive shall never exercise the legislative and judicial power, or either of them; the judicial shall never exercise the legislative and executive power, or either of them, to the end it may be a government of laws and not of men." The same principle of a separation of these three departments is emphatically asserted in the constitutions made during the Revolutionary War in Maryland, North Carolina, New Hampshire, Virginia, and Georgia. The first resolution concerning the Constitution of the United States passed by the Constitutional Convention stated:
"That a national government ought to be established, consisting of a supreme legislative, executive, and judiciary." Six states voted for the resolution, Connecticut voting against it, and New York divided.2
Thomas Jefferson, in a letter to William C. Jarvis,
1 Bryce, The American Commonwealth, vol. i, p. 63, note. 2 Elliot's Deb., vol. v, p. 134.
written with reference to the stability of our Republic many years after he had retired to private life, said:
"If the three powers of our government maintain their mutual independence of each other it may last long, but not so if either can assume the authority of the other." Madison said: "If it be a fundamental principle of free government that the legislative, executive, and judiciary powers should be separately exercised, it is equally so that they be independently exercised."l Montesquieu wrote: "There is no liberty if the judiciary power be not separated from the legislative and executive powers." And Chief Justice Chase, speaking for the United States Supreme Court, says: "It is the intention of the Constitution that each of the great coordinate departments of the government, the legislative, the executive, and the judicial, shall be, in its sphere, independent of the others."2
In a speech made at Harrisburg on October 4, 1906, the President of the United States said: "In some cases this governmental action must be exercised by the several states individually. In yet others it has become increasingly evident that no efficient state action is possible, and that we need, through executive action, through legislation, and through judicial interpretation and construction of law, to increase the power of the Federal government. If we fail thus to increase it, we show our impotence." This statement is but a reiteration of similar statements made again and again by the President. He has made no secret of his desire to increase the powers
1 Elliot's Deb., vol. v, p 337.
2 United States v. Klein, 80 U. S., 129, 147 of opinion.
of the central government through "judicial interpretation and construction of law."
Mr. Elihu Root, as the Secretary of State, holds the department first in importance in the national government and the one in which the President of the United States has always taken greater part than any other. He also occupied the position of Secretary of War under President Roosevelt during his first term of office. He and the President are warm personal friends. Mr. Root has been regarded as the nearest to the President of any of the members of his cabinet. On December 12, 1906, Mr. Root, speaking in New York, after noting "the gradual passing of control" into the hands of the national government and summarizing "other projects tending more and more to obliteration of state lines," declared: "It may be that such control would better be exercised in particular instances by the government of the States, but the people will have the control they need either from the States or from the national government, and if the State fail to furnish it in due measure, sooner or later constructions of the Constitution will be found to vest the power where it will be exercised � in the national government." Now what condition of affairs have we when the President expresses his opinion that we are impotent if we do not increase the power of the national government through executive action, through legislation, and "through judicial interpretation and construction of law," and the Secretary of State, presumably speaking for the administration which he represented, declares that if the states fail to furnish this power in due measure, "sooner or later constructions of
the Constitution will be found to vest the power where it will be exercised � in the national government."
The President appoints the judges of the Supreme Court of the United States and of the District and Circuit courts. During his term of office as President he has appointed three of the nine Associate Justices of the Supreme Court, seventeen of the twenty-nine United States Circuit Court Judges, and forty-five of the eighty-two Judges of the United States District Court. Mr. Bryce says: "Yet even the Federal Judiciary is not secure from the attacks of the two other powers, if combined. For the legislature may by statute increase the number of Federal justices, increase it to any extent, since the Constitution leaves the number undetermined, and the President may appoint persons whom he knows to be actuated by a particular political bias, perhaps even prepared to decide specific questions in a particular sense."1 Professor Dicey, speaking of our Federal Judiciary, says: "Judges, further, must be appointed by some authority which is not judicial, and where decisions of a Court control the action of government there exists an irresistible temptation to appoint magistrates who agree (honestly, it may be) with the views of the executive."2 Daniel Webster, at the Whig Convention at Worcester, Mass., in 1832, speaking of Jackson and his attitude toward the United States Supreme Court, said: "The judicial power cannot stand for a long time against the executive power. The judges, it is true, hold their places by an independent tenure, but they are mor-
1 Bryce, The American Commonwealth, vol. i, p. 298. 2 Dicey, The Law of the Constitution, p. 174.
tal, and the vacancies will be filled by judges agreeing with the President in his constitutional opinions."
The President has taken a most solemn oath to "preserve, protect, and defend the Constitution," and having taken that oath he boldly declares that we need to increase the power of the government through "judicial interpretation and construction," and his Secretary of State tells us that it will be increased by such "constructions." A deliberate attempt on the part of the President or the Supreme Court to amend the Constitution by construction, when the Constitution distinctly provides the only legal method of amendment, is an attempt to take away the sovereignty of the people and to vest the power of amendment in a department of the government where it does not belong, and is nothing short of a flagrant usurpation of power.
Is there doubt that the President desires to accomplish this through the United States Supreme Court? If there is, the doubt can be. removed. The President, in 1906, said: "I cannot do better than base my theory of governmental action upon the words and deeds of one of Pennsylvania's greatest sons, Justice James Wilson. He developed, even before Marshall, the doctrine (absolutely essential, not merely to the efficiency, but to the existence of this nation) that an inherent power rested in the nation outside of the enumerated powers conferred upon it by the Constitution, in all cases where the object involved was beyond the power of the several states and was a power ordinarily exercised by sovereign nations. Certain judicial decisions have done just what Wilson feared: they have, as a matter of fact,
left vacancies, left blanks between the limits of actual national jurisdiction over the control of the great business corporations. Many legislative actions and many judicial decisions, which I am confident time will show to have been erroneous and a damage to the country, would have been avoided if our legislators and jurists had approached the matter of enacting and construing the laws of the land in the spirit of your great Pennsylvanian, Justice Wilson � in the spirit of Marshall and of Washington. Such decisions put us at a great disadvantage in the battle for industrial order as against the present industrial chaos."1
The President here declares that in all cases where the object involved was beyond the power of the several states and was a power ordinarily exercised by a sovereign nation, the United States Supreme Court ought to hold that it is an inherent power vested in the nation, outside of the enumerated powers conferred upon it by the constitution. This Court has ever held that there was no such inherent power in the national government and their latest decision reiterates that holding.2 Notwithstanding this, the President, the head of a separate and distinct department of the government, of which the Judges of the United States Supreme Court should be absolutely independent, declares their holding to have been erroneous, and a damage to
1 Article written by Lucius H. Alexander, of Philadelphia, on James Wilson and the Wilson Doctrine. North American Review of November 16, 1906, pp. 984, 985.
2 Kansas v. Colorado, 206 U. S., 89; New York R.R. Co. v. Bristol, 151 U. S , 556, Passenger Cases, 7 Howard, 470.
the country, and does not seem to see the impropriety of such a statement.
But the President has not stopped even there in his criticisms of the Federal Judges. In his annual message to Congress of December, 1906, speaking of a recent decision of a United States District Court judge, he said: "I have specifically in view a recent decision by a District Judge, leaving railway employees without a remedy for violations of a certain so-called labor statute. It seems an absurdity to permit a single district judge against what may be the judgment of an immense majority of his colleagues on the bench to declare a law solemnly enacted by the Congress to be unconstitutional." The Judge referred to was Judge Walter Evans, and the decision referred to was in the case of The Order of Railway Telegraphers against the Louisville & Nashville Railroad Company. Judge Evans decided in favor of the railroad on the ground that Section 10 of the Act of Congress of June 1, 1896, on which the suit was brought, was void. The President referring to this decision made the above remarks, in which he tells us that an "immense majority" of the colleagues of Judge Evans may not agree with him as to the decision in that case.
Now what is the natural effect of such criticism on the part of the President of the United States of District Court judges? Those judges are ambitious for advancement. The President is able to appoint them to vacancies occurring in the Circuit Court, or even to vacancies which may occur upon the United States Supreme Court. Those District Court judges are in close
relation with his administration. He has appointed many of them to the position. Can there be any doubt that the criticisms of the President who can advance them, made in a message to Congress, read by all the people, and the fear of such criticisms on their own part, will affect their independence? The Representatives in Congress are, however, seeking to clothe the President with the dangerous power of removing Circuit and District Judges without formulating charges, without a hearing, and whenever in his judgment the public welfare will be promoted. In January, 1907, Mr. De Armond introduced such a bill in the House of Representatives.1 The President has invoked James Wilson as authority for his construction of the Constitution, yet
1 IN THE HOUSE OF REPRESENTATIVES. JANUARY 14, 1907.
Mr. DE ARMOND introduced the following bill, which was referred to the Committee on the Judiciary and ordered to be printed.
To make additional provision for the retirement of judges.
1 Be it enacted by the Senate and House of Representatives of
2 the United States of America in Congress assembled. That
3 whenever, in his judgment, the public welfare will be pro-
4 moted by the retirement of any judge of the United States
5 the President shall, by and with the advice and consent of
6 the Senate, nominate and appoint a suitable person pos-
7 sessing the qualifications required by law to the office to
8 be vacated by such retirement, and thereupon and thereby
9 the incumbent shall be retired and the judge newly ap-
10 pointed shall enter upon the duties of and hold the office,
11 agreeably to the provisions and requirements of the law
12 and subject to be retired as herein or otherwise provided.
13 The reasons for retirements hereunder shall be stated in
14 making nominations.
James Wilson, in the Pennsylvania Convention for the adoption of the Constitution, said: "I believe that public happiness, personal liberty, and private property depend essentially upon the able and upright determinations of independent Judges." Chief Justice Marshall, in the Virginia Convention, in 1829, well said: "The judiciary department comes home in its effects to every man's fireside; it passes on his property, his reputation, his life, his all. Is it not in the last degree important that he [a judge] should be rendered perfectly and completely independent, with nothing to control him but God and his own conscience? I have always thought, from my earliest youth until now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a corrupt, or a dependent judiciary."1 Will the independence of District judges continue if they are subject to attacks by the President who appoints them? Am I not justified in saying that the executive, in view of his appointive power, should never either by words of approval or disapproval make himself a reviewing power of their decisions?
The Star Chamber, created by the King and filled by judges who were his servile tools, developed such tyrannical abuses that the English people destroyed not only the Court but Charles I himself for such tyranny. Our people should demand the fundamental constitutional right for the federal judiciary to unquestioned independence, free from any interference from the ex-
1 Miller, The Constitution of the United States, p. 341, note 1.
ecutive either by influence in advance of a decision or by attack after a decision. If federal judges are not already affected by the opinions of the President, how long will they continue to resist such strenuous assaults upon their action? The consequences of such attacks on the Supreme Court of the United States by the President ought to be so plain as to alarm the dullest comprehension. The Emperor Tiberius, according to Tacitus, was in the habit of taking his seat in the law courts, and by his presence overawing them, thereby gradually destroying the freedom of the courts. His methods were not less calculated to influence the action of the judges than those of our President.
But it is not alone that the independence of a separate branch of the government is thus imperiled by the President's action; it is of the highest importance that the people believe that the United States Supreme Court decides its cases, if not always wisely, at least without being- influenced by another branch of the government. Should the members of that court be put under the embarrassment of having it appear that their action is influenced by the words of the President? "Next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner that will beget no suspicion of the judge."1 And Lord Campbell declared "that tribunals should take care that not only in their decrees they are not influenced by overpowerful interests, but to avoid the appearance of laboring under such influence." 2 How can the judges of the
1 Oakley v. Aspinwall, 3 New York, 549.
2 Dimes v. Grand Junction Canal, 3 House of Lords Cases, 793.
Federal courts avoid the appearance of laboring under the influence of the overpowerful executive if he continues in his exhortations that the Executive and Congress possess inherent powers and that the Supreme Court should so decide? How can these courts retain their independence if, after they have made decisions, they are subject to animadversion in the annual messages of the President to Congress? Such conduct, I submit, tends clearly to impair the usefulness of the judiciary as an independent department of the government and merits condemnation.
It is not alone the courts which the President apparently has attempted to influence in their action, but he persistently seeks to control the action of the Senate and, to some extent, the House of Representatives. It is the intent of the Constitution that Congress, made up of the representatives of the people, shall be the judges of what laws are required by the public welfare. If the President brings power to bear upon Congress to affect legislation, even though the people wish the legislation, he is still encroaching upon the field of an independent department of government. During the last few years many measures have been enacted under stress of executive pressure which otherwise would have stood no chance of passage. In the South American countries, congresses and courts employ themselves in registering executive decrees. If present conditions continue the same condition will exist in our own country. People desiring legislation well know this, and again and again we read in the newspapers of applications being made by the great railroad interests
of the country to the President, not to the Congress, to institute and affect legislation. The United States Senate has come to realize that no fight is thoroughly equipped unless the President is in it. He longs to take a hand in legislation. The newspapers for several years have been representing him with his "big stick " going after the United States Senate and House and compelling them to pass laws. In the passage of the Elkins Bill in the Senate; in the passage of the Rate Bill, and practically all the leading measures which have come before the two Houses of Congress, the President has had his innings and his party in the Senate and House have consulted with him and have carried out his instructions. The American people are coming to look upon the President as the real power behind legislation. When the Rate Bill was in the Senate of the United States, Senator Aldrich, of Rhode Island, and other Senators sought to amend it by providing for a judicial review of the action of the Inter-state Commerce Commission, but the President's party opposed this action. James Wilson, whom President Roosevelt invokes as authority upon the Constitution, in his lectures upon Law in 1791 before the then College of Philadelphia, said: "The independence of each power (or Department of Government) consists in this, that its proceedings and the motives, views and purposes, which produce these proceedings should be free from the remotest influence, direct or indirect, of either of the other two powers." The practice, it is said, of wearing hats during the sessions of the House of Commons is an expression of the early feeling of the English Commons against an ap-
pearance of servility; they would not uncover before Speaker or King.1
In 1783, when Fox brought in his famous bill for organizing the government of India, a great outcry against the bill arose. It was alleged that the object of the bill was the centralization of the immense patronage of India in the hands of a few old Whig families. George III, seeing the people aroused against the Ministry, asked Lord Temple to let the members of the House of Lords know that any peer who should vote in favor of the bill would be regarded as an enemy of the King. Four days later the House of Commons by a vote of 153 to 80 resolved that: "To report any opinion, or pretended opinion, of his Majesty upon any bill or other proceeding pending in either House of Parliament, with a view to influencing the votes of the members, is a high crime and misdemeanor, derogatory to the honor of the Crown, a breach of the fundamental principles of Parliament and subversive to the Constitution of this country."2 Now observe that this represented the spirit of English liberty one hundred and twenty-four years ago under George III, whose tyranny was the bugaboo of the makers of the Constitution, the most powerful King in England during the eighteenth century, and perhaps it would not be an exaggeration to say the most powerful King of England for the last two hundred years; yet George III, in all his power, was thus reprimanded.
1 MacMaster, History of the People of the United States, p. 105.
2 John Fiske, The Critical Period of American History, p. 43
To-day usurpation has become so common upon the part of the President that we think little of it, yet an interference by the Kaiser with the action of the Reichstag, even when it is done indirectly, creates widespread indignation. Before the opening of the sittings of the Reichstag, the court chaplain preaches a sermon in the chapel of the imperial palace before the members of the Reichstag and the German Emperor. Dr. Faber, who now occupies that position, in preaching the usual sermon before the recent opening of the chamber, said: "The Reichstag ought to consist entirely of loyal Deputies who are looking to and following the Kaiser with perfect faith, casting aside all doubt and all questionings. If we had such a Reichstag we could safely leave the control of our destinies to God and the Emperor." These words are said to have created almost a revolution in Berlin. The members of the Reichstag indignantly resented such teachings. But while Congress is in session, our newspapers each day give much space to describing how the President is guiding the Senate, championing the rights of the people, how the Senate is defiant, how the President insists upon the recognition of the people's rights, and the play goes on, and the American people seem oblivious to the portentous meaning of such usurpations of power.
Mr. Root assumed, in his speech before the Pennsylvania Society, that the people of the states are neglecting to perform their duties. He tells us that "the instinct of self-government among the people of the United States is too strong to permit them long to respect anyone's right to exercise a power which he fails to exercise,"
and "if the states fail to furnish it in due measure, sooner or later constructions of the Constitution will be found to vest the power where it will be exercised � in the national government." This assumption is without foundation. The states have long exercised their powers with much greater vigor than has the national government. Thirty of the states and territories of the Union had established commissions or passed laws to regulate the railroads, before Congress in 1887 passed the Inter-State Commerce Law, establishing the Inter-State Commerce Commission. Years of agitation were required before Congress passed the law allowing the creation of the Inter-State Commerce Commission, and then it was the Granger movement, from 1871 to 1887, in the Northwestern States, which finally brought about its passage.4 For many years past the regulation of railroads by State Railway Commissions has been frequently reviewed in the United States Supreme Court.2
The state governments are much better adapted than the national government for the enforcement of laws regulating railway rates. The legislatures of the several states have original power to pass all laws affecting state interests, with no limitations, except those imposed upon their action by their respective constitutions, while the United States government has only the powers delegated to it by the states. The Federal courts have no criminal jurisdiction at common law, their criminal law
1 Lloyd, Wealth against Commonwealth, p. 371. 2 143 U. S., 344; 154 U. S.. 362, 397; 169U. S . 546, 176 U.
S., 174; 35 Federal Reporter, 866; 176 U. S., 167; 186 U. S.,
is technical, and there are great difficulties in those courts in enforcing the statutes punishing crimes. The difficulty with enforcing railway rate bills and regulations of commerce in state courts has been found in the fact that whenever an attempt was made the United States Courts interposed upon the plea that they affected Interstate Commerce. If the United States government would relinquish this right, the state courts could much more easily protect their people from the injustice of outrageous rates on the part of the railways.
That the states have exhibited diligence in attempting to control the rates of freight and passenger traffic during the last year is apparent from the very fact that, during the winter and spring of 1907, the heads of railways were going in rapid succession to Washington to see the President, and to invoke, as we are told by the newspapers, his aid for national rather than state control of railways. More than one captain of the railway industry has expressed the wish within the last year that the states might be prohibited from legislating even with reference to railways that lie wholly within their borders, but which are feeders of trunk lines. There is reason to believe that the President's activity and anxiety in the matter is to take over the whole control of the railways of the country to the national government upon the urgent request of the railroad managers.
Another evidence that the states are more progressive than the national government is found in the fact that amendments are frequently made to state constitutions, and that many of their constitutions provide for a Constitutional Convention at the end of each period of
twenty years. The Constitution of the United States has been amended but twice since the first ten amendments in 1789 until the stormy reconstruction days; and the strange feature of the case to-day is that neither the President nor any of the men who are urging the courts to construe the Constitution in such a manner as to enlarge the powers of the national government, mention the conferring of such power upon the national government by such amendments. In short, the people have the power to amend the Constitution, but instead of procuring their action to that end the President and his advisers prefer to seek power by judicial construction.
Eight states, Ohio, Indiana, Illinois, Wisconsin, Nebraska, Pennsylvania, Missouri, and West Virginia, passed laws during the last winter fixing the passenger fare of their states, while the legislatures of New York and Virginia passed similar acts, and the governors of those states vetoed them. During the last two years the legislature of the state of New York passed laws ordering a life insurance investigation, the New Life Insurance Code, a law prohibiting corporations from contributing to campaign funds and expenditures, tlie Eighty-cent Gas Bill for New York City, the Elsberg Rapid Transit Bill, and the Public Utilities Bill. According to the report of Senator Thomas C. Platt of the United States Express Company to its stockholders in April, 1907, twelve of the twenty-six states in which the company was doing business in the year 1907 had passed statutes enlarging the powers of the railroad commissioners over the actions of his company. Insurance investigation along the lines of the Armstrong Committee
Bills in New York has been passed or considered by the legislatures of at least two thirds of the states of the Union during the last year. The only railroad under national control, the Union Pacific, had its Credit Mobilier;
and the District of Columbia, controlled by a United States commission, has as corrupt government as can be found in the United States, with laws, says Congressman McCall, for the creation of corporations which "would make a Jerseyman blush." The State of New York and many of the other states of the Union have recently passed rigid laws requiring the publication of all election expenses, but Congress is unable to pass a similar bill governing national elections.
The state easily makes and unmakes its laws, and if it makes mistakes they can be soon corrected; while the national government, with all its checks and balances, its ponderous machinery, the liability of one department to represent one party and another department to represent another party, brings about changes only after years of delay. Ten years passed after the Presidential election of 1876 before Congress attempted to remedy the defects in the Constitution which made necessary the Electoral Commission. Our rigid currency system, based upon national bonds, and our half dozen or more different kinds of currency, have continued for fifty years, during all of which time students of finance have observed its inelastic condition, and the danger of the system in times of panic, when it is impossible to increase the amount of currency until the panic is over, and still Congress has allowed it to continue with but slight changes. Even the Sherman Anti-Trust Law was not
enforced against the Northern Securities Company, until the governors of the states through which the Great Northern and the Northern Pacific railways passed held a meeting to consider how to prevent the merger becoming effective, and passed a resolution asking for the enforcement of the law. And then the national government had to be reenforced in its action by the opinion of the Attorney-Generals of two states through which the roads passed, declaring the combination illegal.
The national government, we have seen, has failed in many respects to perform its functions under the Constitution. What would be thought if the states attempted to perform these neglected functions according to their standard of right and justice? The idea, supported by the President and others, that the national government should take over the affairs of the state governments is not only a violation of the Constitution of the United States, but it is absolutely impracticable. "No political dreamer," said John Marshall, "would ever be wild enough to think of breaking down the lines which separate the states and of compounding the American people into one common mass."1
James Wilson, upon whose teachings the President relies for his theory of inherent powers in the national government, in the debates on the adoption of the Constitution before the Pennsylvania Convention, said:
"To support, with vigor, a single government over the whole extent of the United States would demand a system of the most unqualified and the most unremitted 1 McCulloch v. the State of Maryland, 4 Wheaton, 316.
despotism."1 In the convention to frame the Constitution, he said: "The state governments ought to be preserved. The freedom of the people, and their internal good police, depend on their existence in full vigor."2 Hamilton, who more than any other delegate believed in a strong central government, said in the New York Convention while discussing its adoption:
"I insist that it never can be the interest or desire of the national legislature to destroy the state governments. It can derive no advantage from such an event;
but, on the contrary, would lose an indispensable support, a necessary aid in executing the laws, and conveying the influence of government to the doors of the people. The Union is dependent on the will of the state governments for its chief magistrate, and for its Senate. The blow aimed at the members must give a fatal wound to the head, and the destruction of the states must be at once a political suicide. Can the national government be guilty of this madness?"3
The United States Supreme Court is not only under a high obligation not to deprive the states of their reserved rights, but it has again and again declared that its obligation requires it to protect those rights as sacredly as it would protect the rights delegated by the states to the national government. Chief Justice Chase, speaking for the Court, said: "It may be not unreasonably said that the preservation of the states and the maintenance of their governments are as much
1 Elliot's Deb , vol. ii, p. 427.
2 Elliot's Deb., vol. i, p. 399.
3 Elliot's Deb., vol. ii, p. 353.
within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible states."1 Mr. Justice Miller, in his work on the Constitution, prepared after his retirement from that court, said: "In my opinion the just and equal observance of the rights of the states and of the general government as denned by the present Constitution, is as necessary to the permanent prosperity of our country and to its existence for another century, as it has been for the one whose close we are now celebrating."2
The states, in delegating a portion of their powers to the national government, did not create an arbiter of their own selection to guard their reserved rights. Although the states must rely entirely upon the impartiality and justice of the United States Supreme Court for the protection of their reserved rights, the members of that Court are appointed by the President with the consent of the Senate. The Supreme Court, in its most recent decision,3 supports the states by declaring that the national government has no legislative powers affecting the nation as a whole except those enumerated in the grant of powers; and that the tenth Amendment to the Constitution, reserving all powers to the states not expressly granted to the nation nor prohibited to the states, "is not to be shorn of its
1 Texas v. White, 7 Wallace, 725; see also 11 Wallace, 125;
199 U. S., 453
2 Miller on The Constitution, p. 24.
3 Kansas v. Colorado, 206 U. S., 89, 90, 91 of opinion.
meaning by any narrow or technical construction, but is to be considered fairly and liberally so as to give effect to its scope and meaning."
It would unduly extend the discussion in this chapter to fully enumerate the many attempts on the part of the President during the last three years "to increase the power of the Federal Government through executive action" Some of these usurpations have been carried on through the heads of departments responsible to him for their action. A few only of the numerous usurpations will be mentioned.
A bill was introduced into the House of Representatives in the winter of 1904 by Mr. Sulloway, a member of the House from the State of New Hampshire, which proposed that any person who had served ninety days in the army or in the navy during the war of the Rebellion, and who had reached the age of sixty-two years, should become entitled to a pension of $8 a month;
that everyone who had become sixty-six years of age should be entitled to $10 a month, and everyone who had reached the age of seventy years should be entitled to a pension at the rate of $12 a month. This measure the House declined, or at least failed to enact, whereupon the Secretary of the Interior, by an order dated March 15, 1904, decreed that its terms should nevertheless govern the Pension Office, and millions of dollars have been paid out of the Treasury without any other warrant of authority than this order or decree of the Interior Department. Five hundred years before the adoption of our Constitution it was the law of England that the Commons had the exclusive right to
originate money bills and to determine the purposes for which moneys appropriated should be used, and the king could not use the public moneys except they were expressly appropriated by the Commons for a specific purpose. In 1640 the House of Commons declared:
"We have had uninterrupted possession of this privilege (the privilege of the undisputed control over the taxation and finances of the country) ever since the year 1407, confirmed by a multitude of precedents both before and after, not shaken by one precedent for these three hundred years."1 For an attempted violation of this right of the Commons, Charles I was sent to the scaffold. In 1678 the House of Commons declared that "it is the undoubted and sole right of the Commons to direct, limit, and appoint, in such Bills, the ends, purposes, considerations, conditions, limitations, and qualifications of such grants."2
"All bills for raising revenue shall originate in the House of Representatives," says the Constitution; and power "to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States," is given to Congress. Now it is to be observed that a pension bill to provide for particular classes of persons had been introduced into Congress, and Congress had either declined or had failed to enact the law. "A minister," says Mr. Lecky, "who has asked and been refused the sanction of Parliament for a particular policy, and who then proceeds to carry out that policy by other
1 Stead, Peers or People, p. 28. 2 Stead. Peers or People, p. 29.
means without parliamentary sanction, may be acting in a way that is strictly legal, but he is straining the principles of constitutional government."1 Now we have here a case of an executive officer who took from the Treasury of the United States millions of dollars and appropriated them to a purpose contemplated by this rejected law, without any law or warrant whatever from Congress. It is true that when the question was raised of his right to thus draw money from the Treasury of the United States without a law authorizing it, he declared that he was entitled to use the money under a prior statute. But he had been administering that same statute for years upon a totally different interpretation, and only resorted to the new interpretation when the proposed law of Mr. Sulloway was not passed by the Congress.
About February 1, 1905, the President of the United States agreed with the Dominican Government on a treaty or a convention whereby a Protectorate of the United States over San Domingo was created, and San Domingo agreed to permit a receiver of its customs duties, selected by the United States, to collect the customs and divide the collections. Forty-five per cent was to go to the support of the Dominican Government, and the remaining sum was to be applied by the United States, or its receiver, in payment of the foreign indebtedness of San Domingo. A considerable portion of this indebtedness was held by English bondholders. They had about �750,000 of bonds for which the Republic of San Domingo had received all told �38,000. 1 Lecky, Democracy and Liberty, vol. ii, p. 57.
This treaty with San Domingo was sent to the United States Senate for confirmation. A majority of the Committee on Foreign Relations were unfavorable to the treaty, and it was not reported to the Senate. With the treaty before the Committee on Foreign Relations, and no action having been taken upon it, the President, on April 1, 1905, entered into an agreement or protocol with the government of San Domingo embodying practically the same provisions as existed in the original rejected treaty. The original treaty provided that the United States was to grant to the Dominican government, aside from the collection of its revenues, "such other assistance as the former (the government of the United States) may deem proper to restore the credit, preserve the order, increase the efficiency of the civil administration, and advance the material progress and welfare of the Dominican Republic." If a treaty containing this provision had been confirmed by the Senate, the President would have been left the discretion to take any steps which he deemed proper "to restore the credit, preserve the order, increase the efficiency of the civil administration " of San Domingo, and advance its material progress and welfare. It is the exercise of just such discretionary powers that turns a constitutional officer into a dictator.
The government of the United States, without any treaty, through its receiver, actually collected the customhouse duties of San Domingo from April 1, 1905, until the year 1907, when at last, after several modifications, the treaty was finally approved by the Senate. Under what clause of the Constitution did the Presi
dent receive the right to appoint a receiver, take possession of the customhouse of San Domingo, collect customs and turn a portion of the amount collected over to the foreign creditors of San Domingo? As executive he can enforce only existing laws. Without any authority whatever, but still in the name of the United States, he, as its President, appointed a receiver of these customs, and became the collector for foreign nations for two years without one syllable of law to justify his action. There is not a precedent for such action in the history of any modern constitutional country. There is no power given to the President from which the right to do this can be possibly inferred. He had a right to make a treaty with San Domingo with the consent of the Senate, but he had no right to act upon any proposed treaty until it had become a treaty, and his action during the whole period of two years was a usurpation of power. If, in a time of peace with no crisis or emergency at hand, the President can exercise such powers, what will such a President do when a great crisis arises and violent passions are excited as in the time of our Civil War?
An act of Congress passed June 28, 1902, authorized the President of the United States to obtain by treaty control of the isthmus or territory known as Panama, a separate state of the Republic of Colombia, for the purpose of building a ship canal across it between the Atlantic and Pacific Oceans. This act provided that if the President should be unable to do so within a reasonable time and upon reasonable terms, that then he should proceed to acquire the necessary territory from
Costa Rica and Nicaragua. This act appropriated $10,000,000 to be used by the President toward the undertaking. It also authorized him to pay for the canal $40,000,000.
Pursuant to this authority. Secretary Hay entered into a treaty with Colombia, which was ratified by the Senate on March 17, 1903. The Congress of the Republic of Colombia, when this treaty was brought before them, refused to ratify it upon the ground that they could not alienate a portion of their national domain without an amendment to their constitution. Congress was not in session when this treaty was rejected by the Colombian Government. The representatives of the old Panama Canal Company and of the new Panama Canal Company were in New York City, watching closely the action of the Congress of Colombia; and it scarcely had rejected the treaty before a scheme was concocted in a law office in New York City to raise a sham revolution in Panama, to protect it by United States troops, and to make a new republic of Panama with which to deal. On November 2, 1903, the gunboat Nashville, under directions of the Navy Department, reached the Isthmus, and on the same day an order was sent from the Navy Department to the Nashville, the Boston, and the Dixie, containing these instructions: "Prevent landing of any armed force with hostile intent at any point within fifty miles of Panama. Government forces reported approaching the Isthmus in vessels. Prevent landing if in your judgment landing would precipitate conflict."
Our rights in Panama were procured by a treaty on December 12, 1846, between our own government and
New Granada, to whose rights, under this treaty, the Colombian Republic had succeeded. In that treaty we guaranteed to New Granada the rights of sovereignty and property which she possessed in Panama and agreed that "if the complete and absolute sovereignty and independence (of New Granada) should ever be assailed by any power at home or abroad, the United States will be ready, cooperating with the Government and their ally, to defend them." But when Panama, a state of Colombia, sought to secede, we, who had fought a four years' war to establish the doctrine that a state had no right to secede, sent our gunboats to the shores of a friendly country which we had agreed to protect if it was ever assailed by any power at home or abroad and to always recognize its sovereignty, we, in such a crisis, sent our gunboats to aid in dismembering it.
Now observe the hand of preparation. On November 2d our gunboats had reached Panama. On the next day Assistant Secretary Loomis, of the State Department, cabled from Washington to the Consul of the United States at Panama: "Uprising on isthmus reported. Keep department promptly and fully informed." The uprising which was contemplated, however, had not come off on time and the Consul General at Panama cabled this reply: "No uprising yet; reported there will be to-night." According to the plan the insurrection did come off at night pursuant to the telegram. In this way a valuable portion of a friendly state was wrested from the Republic of Colombia. Our gunboats and troops held at bay the forces sent by
Colombia to suppress this insurrection, and this was all done under the direction of the President or his Secretary. Suppose Great Britain, before the commencement of the Rebellion, had sent her war vessels to our shores, not only inciting the South to an insurrection but aiding- them to carry it out, what would we have thought of the justice of such an action? We would have met such a step with force and fought Great Britain, as well as the South, in the resentment of such an insult.
The President in all this acted in disregard of the act of Congress which directed him, in case he could not obtain control of the Isthmus of Panama in a reasonable time and upon reasonable terms, then to acquire the necessary territory for the canal from Costa Rica and Nicaragua. If the demands of a high civilization require that we appropriate Panama to our own uses, will not that high civilization also demand that we pay Colombia for the part of her territory which we have deliberately taken without giving her any return whatever? How does this unwarrantable seizure of Panama differ materially from the annexation of Texas? the expedition of General Lopez against Cuba in 1851? the spirit of the shameless Ostend Manifesto? the countenance of the government to the filibustering expedition of William Walker to Nicaragua in 1857? or the later attempts to acquire Cuba in 1851-59? And we continue as we did in these other shameless attacks upon the rights of the weak, to measure honor by inclination and justice by expediency.
About midnight of August 13 and 14, 1906, shots were fired in the village of Brownsville, Texas,
where the Twenty-fifth Infantry, composed of negro troops, were on duty in Fort Brown. A police officer was killed, and when the attention of the government was called to the suspicion that these shots had been fired by members of the Infantry, Major Blocksom, of the United States army, was sent to Brownsville to investigate. He took the .statements of twenty-one witnesses, eight only of whom claimed to be eyewitnesses of the matter. Major Blocksom made his report to his superior, General Garlington, of the regular army, that the soldiers of the Twenty-fifth Infantry he had interrogated had denied any knowledge whatever of the shooting or of the absence of their comrades from the fort on that occasion.
When this report came to the attention of the President he sent General Garlington to Fort Reno, where the members of the Infantry were encamped, and General Garlington there informed the soldiers that unless they frankly and fully disclosed any knowledge which they had as to who of their comrades had committed the offense, that they would be discharged from the army and debarred from ever again entering the service. Even under this threat all the soldiers denied having anything to do with the shooting or any knowledge whatever of who did it. General Garlington made his report to the President and recommended that Companies B, C, and D of the Twenty-fifth Infantry, comprising 167 soldiers and officers, be discharged without honor and be forever debarred from enlisting in the army and navy of the United States, as well as from employment in any civil capacity by the Government.
Upon the back of this report the President wrote: "Let this recommendation be executed." General Garlington, in his report, said: "In making this recommendation I recognize the fact that a number of men who have no direct knowledge as to the identity of the men of the Twenty-fifth Infantry who actually fired the shots on the night of August 13, 1906, will incur this extreme penalty."
It is conceded that only a small number of the soldiers had anything to do with the affray. No one of these 167 men were summoned before a court-martial or given any opportunity whatever to examine or cross-examine witnesses, nor were they represented by counsel, nor did they have a legal hearing in any way whatever. Twelve men, consisting of the Sergeant of the Guard, the men on guard, and other noncommissioned officers in charge of the quarters, the guns, and the gun racks on the night of August 13, and who must have known of the absence from the fort of a part of the three companies, if they were absent, and must have been implicated to some extent in the matter if it occurred, were arrested by the state authorities. An investigation covering three weeks before the grand jury at Brownsville took place, and they were finally dismissed by the grand jury on the ground that there was no evidence whatever upon which to convict them. It is elementary and fundamental law that in times of peace a soldier or officer accused of crime who denies its commission cannot be dismissed without honor and deprived of the right of reenlistment and the right to hold civil office under the government of the United
States, without charges being formulated and a hearing given him before a court-martial. The President had not the slightest legal right to discharge these men and inflict upon them the penalty which was inflicted without such a hearing.
The President is the Commander in Chief of the army and navy of the United States, but Congress is given the power to make rules for the government and regulation of the land and naval forces, and Congress, in 1895, prescribed the conditions under which a soldier in the regular army might be discharged without honor. The Articles of War then enacted by Congress under sixty-one separate provisions prescribes the different offenses for which a soldier may be brought before a court-martial and punished, and the sixty-second provision of these Articles of War provides that all other cases must be punished as a court-martial may direct. By the advice of the Department of War, charges against the twelve men whom the Texan authorities sought to indict were prepared under this sixty-second section of the Articles of War, with specifications and lists of witnesses, and apparently with the intent to bring each of the twelve before a court-martial. But because the President had exercised his alleged power to discharge, the apparent inconsistency of such an arraignment with his act brought the matter to an end without a court-martial.
Notwithstanding all these provisions the President, without a hearing, discharged these men without honor and debarred them from reenlistment or from holding any civil office under the United States. General Ains-worth, the Military Secretary of the War Department,
said in the report which he made to the President: "A protracted examination of the official records has thus far resulted in the failure to discover a precedent in the Regular Army for the discharge of these members of three companies of the Twenty-fifth Infantry who were present on the night of August 13, 1906, when an affray in the city of Brownsville took place." It would seem that the President knew that he had no right to discharge these men without their conviction by a court-martial, for in March, 1903, to a question relative to the retention in the army of a man accused of murder, he said: "In this matter, even if this man is a murderer, I am helpless. I have absolutely no power to dismiss anybody from the army in time of peace."1 The President is not above the law; he is the sworn servant of the law. His act in this case was known to every citizen of the land. There is no greater menace to our country to-day than the prevalent disregard of the orderly enforcement of the law. Between the years 1885 and 1904 inclusive, 2,286 executions for murder, after trials and convictions, have taken place. During the same period 2,917 suspected men, mostly negroes, have been lynched, and a considerable number of them were publicly burned and tortured. When the President, contrary to law, deprives 167 men of their livelihood and their right to employment by the national government, he sets a dangerous example to every person in the land.
Like usurpations have been numerous. Let us, however, observe one more. The constructive recess of three years ago was conceived by the President to permit the 1 North American Review, January 18, 1907, p. 217.
retention in office of certain officials to whom it was believed the Senate was opposed. This recess lasted only from the falling of the gavel in the hands of the President of the Senate, marking the close of the first session of the Fifty-eighth Congress, and the rapping to order which immediately followed the opening of the second session of the Fifty-eighth Congress. And it is to be remembered that the House of Representatives attempted to recognize this as a real recess by voting to themselves $190,000 mileage for attendance on the second session of the Fifty-eighth Congress.
What excuses are offered for these usurpations? Simply that the President thought such usurpations were for the welfare of the American people. Good intentions never justify usurpations of law. Tiberius Gracchus, conscious that his tribuneship had been of great value to the Roman people, and believing that the tribune who would succeed him could not be relied on to carry on his policy, offered himself, notwithstanding the law forbade it, to the Comitia for reflection. He reasoned just as our President reasons, that his tribuneship had brought great blessings to the Roman people; that the poor needed his protection; that the interests of the country demanded his reflection, and that to break the law for a good cause could be atoned for by the fruits of his administration for the second year. Noble as were his purposes, beneficial as might have been his rule, his illegal act resulted in armed resistance, and he and three hundred of his friends were killed at the polls and their bodies flung into the Tiber. The Constitution was given us as a guide of our action. It is beyond the ingenuity
of man to invent a justification for its violation. The example of a President obeying its mandates would contribute a thousandfold more to the general good than ever can come from any supposed benefit in its violation.
When it was moved in the Constitutional Convention that a single person should act as the executive of the nation, a profound silence followed, continuing for several minutes, until Washington, the presiding officer, asked what was the further pleasure of the Convention. In the conventions called for the adoption of the Constitution in all of the Southern States and in Massachusetts and New York, much alarm was expressed at the powers of the President and the danger of his perpetuating himself in office. Little did the people at that time contemplate that such vast power would attach to the office by reason of the growth in size of our country, its rapid industrial advancement, and its enormous increase in wealth. The precedent of Washington, followed by his successors, of refusing to accept the office for a third term, has made it unwise, if not practically impossible, for the President to seek it. But the all-sufficient reasons which preclude the President himself from seeking a third term, equally preclude his use of the great power of his office to bring about the nomination of any certain person as his successor. Jackson, to his discredit, dictated his successor as arbitrarily as he settled the question of the national bank. If it is permissible for the President to seek to control the nomination of his successor, then he can bring about the nomination in his party of the man he prefers, and thus perpetuate his rule, although he has ceased to act as President.
The Roman law wisely provided that no one should be a candidate for the Consulship unless he presented himself for the office from a private station in life. If the President is determined to select his successor, he has only to appoint him to a cabinet position of great power, and to vest him with patronage and influence, to make him an overmatch for any man aspiring to the office from private life. If the unwritten law of the land precludes a President from continuing in the office beyond two terms, let us make it also the unwritten law that the occupant of that high office shall not use the almost omnipotent power which he holds from the people in any manner whatever to select his successor. In short, let the American people insist that the exalted office of the President shall lift him far above the use of his power to place any man in the presidential chair, or to obstruct any man from seeking that exalted position from the walks of private life.
PATERNALISM AND IMPERIALISM
"The French government having assumed the place of Providence, it was natural that everyone should invoke its aid in his individual necessities."
"The mischief begins when, instead of calling forth the activity and powers of individuals and bodies, government substitutes its own activity for theirs; when, instead of informing, advising, and, upon occasion, denouncing, it makes them work in fetters, or bids them stand aside and does their work instead of them. The worth of a State, in the long run, is the worth of the individuals composing it."
JOHN STUART MILL.
"Foreign politics recede into the background with the growth of civil and political freedom, while they are the main prop of autocracies."
PATERNALISM AND IMPERIALISM
THE public newspapers a few months ago told the people of the country that a delegation from the New York Federation of Churches had that day called at the White House to lay before the President the facts about the waning of religious zeal and the decrease of church extension in New York. They desired the President's "aid toward arousing greater interest in religion." In the days of the birth of the Constitution the fathers lifted their thoughts to Heaven and to God for religious help, and they hardly anticipated a time when the President, for whose election they were providing, would be looked to by the American people for religious guidance. Noble Robert Collier was wont to tell the story of an old clergyman in Scotland who, when the scorners gathered around the church while services were going on, would leave the pulpit, catch the unrepentant sinners, and drag them before the altar of mercy. Perhaps the delegation from the New York Federation of Churches hoped that the President with his "big stick " would compel the people to attend church.
The value of this simple and trifling incident is found in that it is a typical illustration of the unfortunate condition of our people. Labor Unions, Boards of Trade,
National Banks, and like bodies are constantly turning to the President of the United States, asking him to arbitrate strikes, coerce corporations, and deposit government surplus, and generally to carry on the domestic affairs of the states. The present Secretary of the Treasury has deposited upward of $200,000,000 of the surplus of the government with the banks, issued $50,000,000 of three per cent certificates, and sold them to aid the banks, under the law that they may be issued when necessary to meet public expenditures, and sold $50,000,000 of the Panama bonds in advance of the need of the money, in order to relieve the money stringency. In the spring of 1907 we saw the strange spectacle of presidents of railways hastening to Washington to invoke the President to protect them from state legislation. A commission known as the Keep Commission recently has reported a plan to be submitted to Congress, providing that the government shall compel all its employees to make provision out of their salaries for annuities after retirement for age. The government on its side is to set aside, as part of the same fund, the sum of $725,000 for the first year, and this sum is to be increased during a period of thirty years, when the system is intended to be self-supporting. The maximum appropriation is to be $1,746,561. Wiser words were never spoken than those of President Cleveland that "it is not the business of a government to support its people, but of the people to support the government."
The peculiar thing about the condition of our government to-day is that the President is supposed by the people to determine everything. Shall a trust be prose
cuted? Ask the President, not the Attorney General. Shall we have further legislation with reference to railways? Ask the President and not Congress. All the affairs of government must be determined upon the President's idea. It is simply a personal matter with the President. In a healthy democratic republic, measures, not men, attract the attention of the people. But with us, the President, appointing so many officers, controlling the army and, to a considerable extent, the navy, is, to use a vulgar phrase, in the center of the stage with all eyes upon him.
In Switzerland, the most democratic government in the world, a President of the Confederation is reported as once saying that if anyone were to question ten Swiss, all of them would know whether their country was well governed or not, but that nine of them would not be able to give the name of the President, and the tenth, who might think he knew it, would be mistaken.1 When will the American people learn that an all-powerful executive, constantly posing before them, toying gigantic schemes in their sight, dazzling them with his power and the grandeur of his views, keeping their attention upon the world's politics, using the navy to collect from the weaker and smaller countries their indebtedness to European countries, advising his own people upon their domestic and social questions, is a menace to that liberty which never can continue unless it continues by reason of discussion of measures, not men. By too much trust in government the people are ceasing to trust
1 Lowell, Government and Parties in Cont. Europe, vol. II, p. 327.
themselves. The state cannot aid men without enfeebling their energies and imperiling their self-reliance. Such a condition goes on for a century or so, and by and by the people, who gradually have been losing independence and self-initiative, become an easy prey to the man on horseback.
Now let us see how these lamentable conditions have been brought about. In more than 200 addresses and messages and communications to Congress, during the last six years, the President has ever been holding before the people the one great theme � the power, the ability, and the willingness of the chief magistrate and of the national government to care for all the wants of the people. There is no subject, from football to race suicide, from simplified spelling to Constitutional construction, within the whole scope of human knowledge which has not been exploited more or less and held up to the people in these speeches and messages.
At Sioux Falls, on April 6, 1903, the President tells his audience <( that the Department of Agriculture devotes its whole energy to working for the welfare of farmers and stock growers," and then he enumerates the various ways in which the Department is working-for the benefit of the farmers of the country. It was proposed in the Constitutional Convention to appoint a Secretary of Domestic Affairs who should attend to the study of agriculture and manufactures, and the opening of roads, but this was not approved.1 It was also proposed to establish agricultural colleges to promote agri-1 Elliot's Deb., vol. v, p. 446.
culture, and this proposition was voted down. Notwithstanding this, hundreds of millions of the people's money have been used for the ostensible purpose of promoting agriculture. For years Congress has been purchasing seeds at ordinary seed stores and scattering them among the farmers of the country. During President Cleveland's second administration, Stirling G. Morton, Secretary of the Department of Agriculture, attempted to put a stop to this, and a representative from Louisiana arose in the House and declared that the distribution of seed was the only relation left him with his constituents, and now the Secretary of Agriculture was about to destroy that relationship.
In the President's message of December, 1906, he assures the people that "much is now being done for the States of the Rocky Mountains and great plains through the development of the national policy of irrigation and forest preservation." In a recent case l it is distinctly held that Congress has no power to devote the public money for carrying on irrigation in the states, but that possibly the power exists to devote the public money to the irrigation of public lands in the territories. The irrigation laws, the geological survey, the ten or fifteen divisions of the Agricultural Department given over to investigations of all kinds, using up hundreds of millions of dollars of the people's money, induce the people to look to the national government. These lavish appropriations are made with this express purpose in view. Every appropriation is a fresh draft from the exhaustless resources of a paternal govern-1 Kansas v. Colorado, 206 U. S., 91, 92.
ment, but not a dollar was ever yet spent by the government which was not taken out of the pockets of the people. The appropriations of Congress in the year 1898 were $485,002,044; in 1906 they were $820,184,624, nearly double the amount for 1898; and in 1907 they were about a billion dollars. In the year 1907 there was appropriated by the River and Harbor Bill alone, $83,816,138, a sum larger than the total cost of all government in the United States in any single year prior to 1860.
In the President's message in December, 1906, he devoted much attention to technical and industrial training, treating the whole matter as though the national government had power to establish schools in the different states, to instruct carpenters, blacksmiths, mechanics, textile workers, watchmakers, and all the members of the several industries of the country. Mr. Wadsworth, Chairman of the Committee on Agriculture, in the last Congress commented at length upon the tendency of the Department of Agriculture to usurp the powers of the state governments. The occasion of his speech was the consideration of what was known as the Nelson Amendment increasing the agricultural appropriations. Mr. Wadsworth said that the agricultural appropriations as a whole presented a serious menace to local control of education; that they included bills to extend aid to state normal schools, agricultural schools, mechanical schools, and city high schools; and that if appropriations were made for such purposes by and by they would be extended to the grade schools and then "you will have federal control and supervision of your
schools." Mr. Tawney, Chairman of the Committee on Appropriations, said: "If we continue this system of paternalism much longer it will not be long until the Congress will be swept off its feet and called on to account for from $25,000,000 to $50,000,000 annually for the construction and maintenance of good roads."
The late Secretary of the Treasury, Leslie M. Shaw, for the purpose of aiding the national banks, allowed bonds other than government bonds as prescribed by the statute to be used to secure circulation; purchased bonds in advance of their becoming due with the intent of easing the money market; and deposited the moneys received by the government for internal revenue, to the amount of $20,000,000, with the banks in the east and in the west, after it had been taken into the Treasury vaults, a power never exercised before by any Secretary. He also deposited the government moneys with importing banks, during the transit of gold from London, Paris, Berlin, and Amsterdam, to save the cost of interest in transit; offered government deposits to banks which would buy the Panama Canal bonds at two per cent; deposited the Treasury surplus from time to time in different banks to ease the money market; advised that the matter of the amount of the reserves required by law to be held in the national banks be left for the Secretary of the Treasury to determine; and finally announced that if $100,000,000 were given him as Secretary of the Treasury to be deposited with the banks or withdrawn as he might deem expedient, and that if he also was clothed with authority over the reserves of the banks and power to direct the circulation
of the national banks, he could prevent financial crises in the United States and all Europe, thus becoming the saviour of Europe as well as of the United States. The President, in commendation of the services of his Secretary of the Treasury, at the time of his resignation, wrote him: "People tend to forget year by year that the Secretary of the Treasury stands between them and business disaster. This report of yours shows how every year some crisis has occurred which might have had a most serious effect if it had not been met just as you have met it."
These are only a few of the attempts of the government to direct the attention of the people to it for the remedy of every evil. The Treasury of the United States has been opened wide by distributing money into every part of the country for purposes with which the national government has nothing to do, with the intention of directing the attention of the people to the all-wise providence of Congress and of the Executive. A hundred years ago our people asked no favors from government, but only for a fair, square deal, each man confident in his ability to win by his own brain and his own hand. To-day, under this paternal rule, everybody is in the habit of looking to the President and Congress for relief from every evil. Thus residents in the southern states recently sent a request to the Secretary of the Department of Agriculture that he rid them of the pest of the boll weevil, while the men of old Massachusetts, wherein personal independence in revolutionary days was most developed, send to Washington for help to drive the brown-tailed or gypsy moth from the bor
ders of their State. Just as at Rome, the leading men desiring the plaudits of the people provided them with a circus, just as Caius Gracchus proposed a provision that the grain at Rome should become state property, and that the government should sell wheat to the people at a ridiculously low price, so to-day President Roosevelt and some of his predecessors have used vast sums of money collected from the people through protective tariffs, internal revenue, and other means to bestow bounties here and there all over the land, and thus attach the people of the different states to the all-powerful, all-bounteous providential national government.
Now such government is destructive of public virtue. The function of democracy is not alone to make government good, but to make men strong by intensifying their individual responsibility. The belief that the President or government has the power to make everybody comfortable or happy, and the inclination of the people to depend upon our government as the people of France and Germany depend upon theirs, is a tendency destructive of liberty and individual initiative. Paternalism is the dry rot of government, and as surely brings paralysis through all its members as the law of gravitation controls the universe.
But even these are not the worst evils of paternalism. The greatest curse which it has brought upon the country is its teaching that all evils are political in nature, and that it is within the scope of the state to destroy the social miseries which inevitably exist. We are teaching the people that a law of Congress is a sovereign specific for every evil. The President of the
United States is constantly calling to the attention of the people in his messages and speeches the benefits to be derived from new laws, yet every student of history knows that better conditions cannot be brought about except through a change in the personal character of the people and their exercise of individual virtue and vigor. The exercise of arbitrary power by the President is bad because arbitrary power, whether it be political or industrial, has always had but one tendency, and that is to make good citizens bad citizens. The citizens who are contented to rely upon a paternal government never rise through one emancipation after another into a higher liberty. Social evolution progresses actually with the importance of the citizen above the state, and decreases exactly in the proportion of the importance of the state over the citizen. A good despotism is an absolutely false idea. The more civilized the country, the more noxious such a government.
The people must fight their own battles for better conditions. Every time they call upon that great central deity, the Government, to fight an evil, they surrender their God-given right to grow strong by fighting it themselves. By and by, if recent tendencies continue, they will surrender all their duties and all their rights, so dearly bought, to their rulers. By and by the government, like that of Germany, will dog the citizen's footsteps at every turn, provide him with old-age pensions, recompense him for all injuries received through negligence, destroy his manhood while alive, and bury him when dead. Let us go on at the same rate we have been during the last five years, and the
sole idea of our country will be a divinely inspired President whose authority, as guardian of the people, insures their general felicity. This evolution will consist in erecting an absolutely central power over the ruins of state and local life. All will be looking to Congress more and more for the righting of wrongs, for the control of commerce and industry, and for the curbing of the predatory railways and trusts. The command of the people to the President will be the command to the Roman dictator to take care that the state receives no harm, leaving the means and the methods entirely to his wise discretion. Then when evil conditions come, as they came recently to the wine growers in the south of France, through perfectly natural causes, our people in vain will turn their faces to the government to relieve them even as the French peasants sought government aid, and then rose in arms against a government that could find no cure for their ills.
Upon no subject has the President spoken with so much power as upon the decadence which race suicide is bringing upon the country. The conditions which the President laments are a menace to our national greatness, but no amount of severe language against married people who have no children will avail. Better a hundred times to find the reasons for race suicide and remove them. If the President does not know what those reasons are he has not carefully reflected upon existing conditions. The high price of the necessaries of life, whereby a large part of our people are reduced to a condition where the daily wage barely supports the family,
more than any other cause brings the condition which the President so wisely laments. The masses of men will be what their circumstances make them. If the present prices of the necessaries of life and of rent continue, the average laboring man with a family will be unable from his wages to support his family and to lay aside a dollar for his old age. He pays for the rent of the tenement in which he lives from twenty-five to fifty per cent more than he would pay for it were it not for the customs duties upon iron and steel, wood, nails, glass, cement, and everything that goes into the making of that tenement, whereby the domestic manufacturer is protected from foreign trade and allowed to deprive the poor man of his scanty earnings.
The tariff schedules of to-day carry duty on more than 4,000 articles. Nearly every duty on these 4,000 articles permits the domestic producer of the same article to impose a higher price for his product, and that price eventually falls in greater part upon the shoulders of the poor and deters them from marriage and childbirth. Superintendent Maxwell, of the New York City schools, two or three years ago said: "There are thousands of children in our city schools who cannot learn because they are hungry." And they are hungry, in part at least, because of that protective tariff which allows the wealth of the country to make every poor laboring man in this land pay tribute to increase its wealth. In 1,000 villages and cities, from one end of this country to the other, the wife of the poor man will be found in the market, the hard earnings of her husband in her gnarled hands, purchasing the necessaries
of life; and from every dollar's worth she buys, she is obliged, because of the tariff, to make a personal contribution to men who already have