It is a remarkable circumstance, that this provision was originally

proposed by a very earnest advocate of the rights of the

States,--Luther Martin. His design, however, was to supply a

substitute for a power over State legislation, which had been embraced

in the Virginia plan, and which was to be exercised through a negative

by the national legislature upon all laws of the States contravening

in their opinion the Articles of Union, or the treaties subsisting

under the authority of the Union.[312] The purpose of the substitute

was to change a legislative into a judicial power, by transferring

from the national legislature to the judiciary the right of

determining whether a State law, supposed to be in conflict with the

Constitution, laws, or treaties of the Union, should be inoperative or

valid. By extending the obligation to regard the requirements of the

national Constitution and laws to the judges of the State tribunals,

their supremacy in all the judicatures of the country was secured.

This obligation was enforced by the oath or affirmation to support

the Constitution of the United States;[313] and, as we shall see

hereafter, lest this security should fail, the final determination of

questions of this kind was drawn to the national judiciary, even when

they might have originated in a State tribunal.[314]

Closely connected in purpose with these careful provisions was the

mode in which the Constitution was to be ratified. The committee of

detail had made this the subject of certain articles in the

Constitution itself.[315] But the committee of revision afterwards

presented certain resolutions in the place of two of those articles,

which were adopted by the Convention after the Constitution had been

signed; leaving in the instrument itself nothing but the article which

determined the number of States whose adoption should be sufficient

for establishing it.[316] These resolutions pursued substantially the

mode previously agreed upon, of a transmission of the instrument to

Congress, a recommendation by the State legislatures to the people to

institute representative assemblies to consider and decide on its

adoption, and a notice of their action to Congress by each State

assembly so adopting it. The purpose of this form of proceeding, so

far as it was connected with the primary authority by which the

Constitution was to be enacted, has been already explained.[317]

What then were the meaning and scope of that supremacy which the

framers of the Constitution designed to give to the acts of the

government which they constructed?

In seeking an answer to this question, it is necessary to recur, as we

have constantly been obliged to do, to the nature of the government

which the Constitution was made to supersede. In that system, the

experiment had been tried of a union of States,--each possessed of a

complete government of its own,--which was intended to combine their

several energies for the common defence and the promotion of the

general welfare. But this combined will of distinct communities,

expressed through the action of a common agent, was wholly unable to

overcome the adverse will of any of them expressed by another and

separate agent, although the objects of the powers bestowed on the

confederacy were carefully stated and sufficiently defined in a public

compact. Thus, for example, the treaty-making power was expressly

vested in the United States in Congress assembled; but when a treaty

had been made, it depended entirely upon the separate pleasure of each

State whether it should be executed. If the State governments did not

see fit to enforce its provisions upon their own citizens, or thought

proper to act against them, there was no remedy, both because the

Congress could not legislate to control individuals, and because there

was no department clothed with authority to compel individuals to

conform their conduct to the requirements of the treaty, and to

disregard the opposing will of the State.

This defect was now to be supplied, by giving to the national

authority, not only theoretically but practically, a supremacy over

the authority of each State. But this was not to be done by

annihilating the State governments. The government of every State was

to be preserved; and so far as its original powers were not to be

transferred to the general government, its authority over its own

citizens and within its own territory must, from the nature of

political sovereignty, be supreme. There were, therefore, to be two

supreme powers in the same country, operating upon the same

individuals, and both possessed of the general attributes of

sovereignty. In what way, and in what sense, could one of them be made

paramount over the other?

It is manifest that there cannot be two supreme powers in the same

community, if both are to operate upon the same objects. But there is

nothing in the nature of political sovereignty to prevent its powers

from being distributed among different agents for different purposes.

This is constantly seen under the same government, when its

legislative, executive, and judicial powers are exercised through

different officers; and in truth, when we come to the law-giving

power alone, as soon as we separate its objects into different

classes, it is obvious that there may be several enacting authorities,

and yet each may be supreme over the particular subject committed to

it by the fundamental arrangements of society. Supreme laws, emanating

from separate authorities, may and do act on different objects without

clashing, or they may act on different parts of the same object with

perfect harmony. They are inconsistent when they are aimed at each

other, or at the same indivisible object.[318] When this takes place,

one or the other must yield; or, in other terms, one of them ceases to

be supreme on the particular occasion. It was the purpose of the

framers of the Constitution of the United States to provide a

paramount rule, that would determine the occasions on which the

authority of a State should cease to be supreme, leaving that of the

United States unobstructed. Certain conditions were made necessary to

the operation of this rule. The State law must conflict with some

provision of the Constitution of the United States, or with a law of

the United States enacted in pursuance of the constitutional authority

of Congress, or with a treaty duly made by the authority of the Union.

The operation of this rule constitutes the supremacy of the national

government. It was supposed that, by a careful enumeration of the

objects to which the national authority was to extend, there would be

no uncertainty as to the occasions on which the rule was to apply;

and as all other objects were to remain exclusively subject to the

authority of the States within their respective territorial limits,

the operation of the rule was carefully limited to those occasions.

The highly complex character of a system in which the duties and rights

of the citizen are thus governed by distinct sovereignties, would seem

to render the administration of the central power--surrounded as it is

by jealous and vigilant local governments--an exceedingly difficult and

delicate task. Its situation is without an exact parallel in any other

country in the world. But it possesses the means which no government of

a purely federal character has ever enjoyed, of an exact determination

by itself of its own powers; because every conflict between its

authority and the authority of a State may be made a judicial question,

and as such is to be solved by the judicial department of the nation.

This peculiar device has enabled the government of the United States to

act successfully and safely. Without it, each State must have been left

to determine for itself the boundaries between its own powers and those

of the Union; and thus there might have been as many different

determinations on the same question as the number of the States. At the

same time, this very diversity of interpretation would have deprived

the general government of all power to enforce, or even to have, an

interpretation of its own. Such a confused and chaotic condition had

marked the entire history of the Confederation. It was terminated with

the existence of that political system, by the establishment of the

rule which provides for the supremacy of the Constitution of the United

States, and by making one final arbiter of all questions arising under

it.

By means of this skilful arrangement, a government, in which the

singular condition is found of separate duties prescribed to the

citizen by two distinct sovereignties, has operated with success. That

success is to be measured not wholly, or chiefly, by the diversities

of opinion on constitutional questions that may from time to time

prevail; nor by the means, aside from the Constitution, that may

sometimes have been thought of for counteracting its declared

interpretation; but by the practical efficiency with which the powers

of the Union have operated, and the general readiness to acquiesce in

the limitations given to those powers by the department in which their

construction is vested. This general acquiescence has steadily

increased, from the period when the government was founded until the

present day; and it has now come to be well understood, that there is

no alternative to take the place of a ready submission to the national

will, as expressed by or under the Constitution interpreted by the

proper national organ, excepting a resort to methods that lie wholly

without the Constitution, and that would completely subvert the

principles on which it was founded. For while it is true that the

people of each State constitute the sovereign power by which the

rights and duties of its inhabitants not involved in the Constitution

of the United States are to be exclusively governed, it is equally

true that they do not constitute the whole of the sovereign power

which governs those relations of its inhabitants that are committed to

the national legislature. The framers of the Constitution resorted to

an enactment of that instrument by the people of the United States,

and employed language which speaks in their name, for the express

purpose, among other things, of bringing into action a national

authority, on certain subjects. The organs of the general government,

therefore, are not the agents of the separate will of the people of

each State, for certain specified purposes, as its State government is

the agent of their separate will for all other purposes; but they are

the agents of the will of a collective people, of which the

inhabitants of a State are only a part. That the will of the whole

should not be defeated by the will of a part, was the purpose of the

supremacy assigned to the Constitution of the United States; and that

the rights and liberties of each part, not subject to the will of the

whole, should not be invaded, was the purpose of the careful

enumeration of the objects to which that supremacy was to extend.

In this supremacy of the national government within its proper sphere,

and in the means which were devised for giving it practical

efficiency, we are to look for the chief cause that has given to our

system a capacity of great territorial extension. It is a system in

which a few relations of the inhabitants of distinct States are

confided to the care of a central authority; while, for the purpose of

securing the uniform operation of certain principles of justice and

equality throughout the land, particular restraints are imposed on the

power of the States. With these exceptions, the several States remain

free to pursue such systems of legislation as in their own judgment

will best promote the interest and welfare of their inhabitants. Such

a division of the political powers of society admits of the union of

far greater numbers of people and communities, than could be provided

for by a single representative government, or by any other system than

a vigorous despotism. Many of the wisest of the statesmen of that

period, as we now know, entertained serious doubts whether the country

embraced by the thirteen original States would not be too large for

the successful operation of a republican government, having even so

few objects committed to it as were proposed to be given to the

Constitution of the United States. If those objects had been made to

embrace all the relations of social life, it is extremely probable

that the original limits of the Union would have far exceeded the

capacities of a republican and representative government, even if the

first difficulties arising from the differences of manners,

institutions, and local laws could have been overcome.

But these very differences may be, and in fact have been, made a means

of vast territorial expansion, by the aid of a principle which has

been placed at the foundation of the American Union. Let a number of

communities be united under a system which embraces the national

relations of their inhabitants, and commits a limited number of the

objects of legislation to the central organs of a national will,

leaving their local and domestic concerns to separate and local

authority, and the growth of such a nation may be limited only by its

position on the surface of the earth. The ordinary obstacles arising

from distance, and the physical features of the country, may be at

once overcome for a large part of the purposes of government, by this

division of its authority. The wants and interests of civilized life,

modified into almost endless varieties, by climate, by geographical

position, by national descent, by occupation, by hereditary customs,

and by the accidental relations of different races, may in such a

state of things be governed by legislation capable of exact adaptation

to the facts with which it has to deal. In this way, separate States

under the republican form may be multiplied indefinitely.

Now what is required in order to make such a multiplication of

distinct States at the same time a national growth, is the operation

of some principle that will preserve their national relations to the

control of a central authority. This is effected by the supremacy of

the Constitution of the United States, against which no separate State

power can be exerted. This supremacy secures the republican form of

government, the same general principles and maxims of justice, and the

same limitations between State and national authority, throughout all

the particular communities; while, at the same time, it regulates by

the same system of legislation, applied throughout the whole, the

rights and duties of individuals that are committed to the national

authority. It was for the want of this supremacy and of the means of

enforcing it, that the Confederation, and all the other federal

systems of free government known in history, had failed to create a

powerful and effective nationality; and it is precisely this, which

has enabled the Constitution of the United States to do for the nation

what all other systems of free government had failed to accomplish.

In this connection, it seems proper to state the origin and purpose of

that definition of treason which is found in the Constitution, and

which was placed there in order, on the one hand, to defend the

supremacy of the national government, and on the other, to guard the

liberty of the citizen against the mischiefs of constructive

definitions of that crime. No instructions had been given to the

committee of detail on this subject. They, however, deemed it

necessary to make some provision that would ascertain what should

constitute treason against the United States. They resorted to the

great English statute of the 25th Edward III.; and from it they

selected two of the offences there defined as treason, which were

alone applicable to the nature of the sovereignty of the United

States. The statute, among a variety of other offences, denominates as

treason the levying of war against the king in his realm, and the

adhering to the king's enemies in his realm, giving them aid and

comfort in the realm, or elsewhere.[319] The levying of war against

the government, and the adhering to the public enemy, giving him aid

and comfort, were crimes to which the government of the United States

would be as likely to be exposed as any other sovereignty; and these

offences would tend directly to subvert the government itself. But to

compass the death of the chief magistrate, to counterfeit the great

seal or the coin, or to kill a judge when in the exercise of his

office, however necessary to be regarded as treason in England, were

crimes which would have no necessary tendency to subvert the

government of the United States, and which could therefore be left out

of the definition of treason, to be punished according to the separate

nature and effects of each of them. The committee accordingly provided

that "treason against the United States shall consist only in levying

war against the United States, or any of them; and in adhering to the

enemies of the United States, or any of them."[320]

But here, it will be perceived, two errors were committed. The first

was, that the levying of war against a State was declared to be

treason against the United States. This opened a very intricate

question, and loaded the definition with embarrassment; for, however

true it might be, in some cases, that an attack on the sovereignty of

a State might tend to subvert or endanger the government of the

United States, yet a concerted resistance to the laws of a State,

which is one of the forms of "levying war" within the meaning of that

phrase, might have in it no element of an offence against the United

States, and might have no tendency to injure their sovereignty.

Besides, if resistance to the government of a State were to be made

treason against the United States, the offender, as was well said by

Mr. Madison, might be subject to trial and punishment under both

jurisdictions.[321] In order, therefore, to free the definition of

treason of all complexity, and to leave the power of the States to

defend their respective sovereignties without embarrassment, the

Convention wisely determined to make the crime of treason against the

United States to consist solely in acts directed against the United

States themselves.

The other error of the committee consisted in omitting from the

definition the qualifying words of the statute of Edward III., "giving

them aid and comfort," which determine the meaning of "adhering" to

the public enemy.[322] These words were added by the Convention, and

the crime of treason against the United States was thus made to

consist in levying war against the United States, or in adhering to

_their_ enemies by the giving of aid and comfort.[323]

With respect to the nature of the evidence of this crime, the

committee provided that no person should be convicted of treason

unless on the testimony of two witnesses. But to make this more

definite, it was provided by an amendment, that the testimony of the

two witnesses should be to the same overt act; and also that a

conviction might take place on a confession made in open court. The

punishment of treason was not prescribed by the Constitution, but was

left to be declared by the Congress; with the limitation, however,

that no attainder of treason should work corruption of blood, or

forfeiture, except during the life of the person attainted.[324]

FOOTNOTES:

[309] These were the 1st, 7th, 20th, and 21st of the resolutions.

_Ante_, p. 190 _et seq._, note.

[310] "We, the people of the United States, in order to form a more

perfect union, establish justice, insure domestic tranquillity,

provide for the common defence, promote the general welfare, and

secure the blessings of liberty to ourselves and our posterity, do

ordain and establish this Constitution for the United States of

America."

[311] The Constitution, Art. VI. (See Appendix.)

[312] July 17. Elliot, V. 322.

[313] The Constitution. Art. VI.

[314] Ibid. Art. III. § 2.

[315] Articles XXI., XXII., XXIII. of their draft. Elliot, V. 381.

[316] The Constitution, Art. VII.

[317] _Ante_, p. 177, _et seq._ The resolutions may be found in

Elliot, V. 541 (Sept. 13). But the proceedings on them are not found

in Mr. Madison's Minutes, or in the Journal of the Convention. The

official record of their unanimous adoption was laid before Congress

on the 28th of September, 1787, and it bears date September 17th. It

recites the presence in Convention of all the states that attended

excepting New York, and in the place of that _State_ stands "Mr.

Hamilton _from_ New York." This record precedes the official letter

addressed by the Convention to Congress. See Journals of Congress for

September 28, 1787, Vol. XII. pp. 149-165.

[318] See a speech made by Hamilton in the Convention of New York.

Works, II. 462.

[319] 4 Blackstone's Com., Book IV. ch. 6.

[320] Art. VI. § 2 of the first draft of the Constitution. Elliot, V.

379.

[321] Elliot, V. 450.

[322] The effect of these words is as if the statute read "adhering to

the enemy _by_ giving him aid and comfort," and not as if they were

two separate offences.

[323] See the debate, Elliot, V. 447-451.

[324] Ibid. Art. III. § 3 of the Constitution.

CHAPTER XIII.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--ELECTION AND POWERS OF

THE PRESIDENT.

In describing the manner in which the Constitution and powers of the

Senate were finally arranged, I have already had occasion to state,

that, after the report of the committee of detail came in,--vesting

the appointment of the President in the national legislature, creating

a term of seven years, and making the incumbent ineligible a second

time,--a direct election by the people was negatived by a large

majority. This mode of election, as a means of removing the

appointment from the legislature, would have been successful, but it

was inadmissible on other accounts. In the first place, it would have

given to the government a character of complete consolidation, so far

as the executive department was concerned, to have vested the election

in the people of the United States as one community. In the second

place, not only would the States, as sovereignties, have been excluded

from representation in this department, but the slaveholding States

would have had a relative weight in the election only in the

proportion of their free inhabitants. On the other hand, to provide

that the executive should be appointed by electors, to be chosen by

the people of the States, involved the necessity of prescribing some

rule of suffrage for the people of all the States, or of adopting the

existing rules of the States themselves. Probably it was on account of

this embarrassment, that a proposition for electors to be chosen in

this mode was negatived, by a bare majority, soon after the vote

rejecting a direct election of the President by the people.[325] There

remained the alternatives of an election by one or both of the houses

of Congress, or by electors appointed by the States in a certain

ratio, or by electors appointed by Congress. The difficulty of

selecting from these various modes led the Convention to adhere to an

election by the two houses; and when the disadvantages of this plan,

already described, had developed the necessity for some other mode of

appointment, the relations between the Senate and the executive were,

as we have seen, sent to a grand committee, who devised a scheme for

their adjustment.

In this plan it was proposed that each State should appoint, in such

manner as its legislature might direct, a number of electors equal to

the whole number of senators and representatives in Congress to which

the State might be entitled under the provisions of the Constitution

already agreed upon. The advantages of this plan were, that it

referred the mode of appointing the electors to the States themselves,

so that they could adopt a popular election, or an election by their

legislatures, as they might prefer; and that it would give to each

State the same weight in the choice of the President that it was to

have in the two houses of Congress, provided a majority or a plurality

of the electoral votes were to determine the appointment. The

committee recommended that the electors should meet in their

respective States, on the same day, and vote by ballot for two

persons, one of whom, at least, should not be an inhabitant of the

same State with themselves; and that the person having the greatest

number of votes, if such number were a majority of all the electoral

votes, should be the President. To this part of the plan, there was

likely to be little objection. But the mode of electing the President

in case of a failure to concentrate a majority of the electoral votes

upon one person, or in case more than one person should have such a

majority, was the most difficult part of the whole scheme. The object

of the committee was to devise a process which should result in the

election both of a President and a Vice-President; and they proposed

to make the person having the next largest number of electoral votes

the Vice-President. If two of the persons voted for should have a

majority of all the votes, and the same number of votes, then the

Senate were immediately to choose one of them, by ballot, as the

President; if no person should have such a majority, then the Senate

were to choose the President by ballot from the five highest on the

list of candidates returned by the electors. If a choice of the

President had been effected by the electoral votes, the person having

the next highest number of electoral votes was to be the

Vice-President; and if there were two or more having an equal number

of electoral votes, the Senate were to choose one of them as

Vice-President.

From the proceedings which took place upon this plan, it appears that

what many of the framers of the Constitution most apprehended was,

that the votes in the electoral bodies would not be sufficiently

concentrated to effect a choice, from want of the requisite general

knowledge of the persons who might be considered in different parts of

the Union as fit candidates for these high offices; and consequently

that the election would be thrown into such other body as might be

directed to make it after a failure in the action of the electors. It

is a remarkable proof of their wisdom, that, although intimations

began to appear in the public prints, as soon as the Constitution was

published, that Washington would be the first President of the United

States,--an expectation that must, therefore, have been entertained by

the members of the Convention before they had finished their

labors,--they were at no time under the influence of this pleasing

anticipation.[326] They kept steadily in view a state of things in

which, from the absence of statesmen of national reputation and

influence, and from the effect of local preferences, no choice would

be made by the electors. Hence their solicitude to provide for the

secondary election, in such a way as to admit of a re-election of the

incumbent. It was soon found that between the President and the Senate

there would be a mutual connection and influence, which would be

productive of serious evils, whether he were to be made eligible or

ineligible a second time, if the Senate were to have the appointment

after the electors had failed to make a choice. To remedy this, many

of the members, among whom was Hamilton, preferred to let the highest

number of electoral votes, whether a majority or not, appoint the

President. As the grand committee had proposed to reduce the term of

office from seven to four years, and to strike out the clause making

the incumbent ineligible,--a change which met the approbation of a

large majority of the States,--it became still more necessary to

prevent any resort to the Senate for a secondary election. But an

appointment by less than a majority of the electoral votes presented,

on the other hand, the serious objection that the President might owe

his appointment to a minority of the States. To preserve, as far as

possible, a federal character for the government, in some of its

departments, was justly regarded as a point of great importance. One

branch of the legislature had become a depositary of the democratic

power of a majority of the people of the United States;--the other

branch was the representative of the States in their corporate

capacities;--the President was to be in some sense a third branch of

the legislative power, by means of his limited control over the

enactment of laws;--and it was, therefore, something more than a mere

question of convenience, whether he should, at the final stage of the

process, be elected by a less number than a majority of all the

States. That part of the plan which proposed to elect him by a

majority of all the electoral votes, giving to each State as many

votes as it was to have in both houses of Congress, might make the

individual, when so elected, theoretically the choice of a majority of

the people of the United States, although not necessarily the choice

of a majority of the States. But there was a peculiar feature of this

plan,--afterwards, in the year 1804, changed to a more direct

method,--by which the electors were required to return their votes for

two persons, without designating which of them was their choice for

President, and which for Vice-President, the designation being

determined by the numbers of votes found to be given for each person.

This method of voting increased the chances of a failure to choose the

President by the electoral votes. It is not easy to understand why the

framers of the Constitution adhered to it; although it is probable

that its original design was to prevent corruption and intrigue.

Whatever its purpose may have been, it served to make still more

prominent the expediency, not only of removing the ultimate election

from the Senate, but of providing some mode of conducting that

election by which an appointment by a minority of the States would be

prevented, when a majority of the electoral votes had not united upon

any one individual, or had united upon two.

The plan which had been prepared by the grand committee, and which

adjusted the relations between the executive and the Senate respecting

appointments and treaties, had left no body in the government so

likely to be free from intimate relations with the President, and at

the same time so capable of being made the instrument of an election,

as the House of Representatives. By the fundamental principle on which

that body had been agreed to be organized,--in direct contrast to the

basis of the Senate,--its members were the representatives of the

people inhabiting the several States, and in the business of

legislation a majority of their votes was to express the will of a

majority of the people of the United States. But the representatives

were to be chosen in the separate States; and nothing was more easy,

therefore, than to provide that, in any other function, they should

act as the agents of their States, making the States themselves the

real parties to the act, without doing any violence to the principle

on which they were assembled for the purposes of legislation.

Accordingly, as soon as a transfer of the ultimate election from the

Senate to the House of Representatives was proposed, the method of

voting by States was adopted, with only a single dissent.[327] The

establishment of two thirds as a quorum of the States for this

purpose, and the provision that a majority of all the States should be

necessary to a choice, followed naturally as the proper safeguards

against corruption, and were adopted unanimously.

The principal office of the executive department was thus provided

for; but the ultimate choice of the Vice-President remained to be

regulated. This office was unknown to the draft of the Constitution

prepared by the committee of detail, and was suggested only when the

mode of organizing the executive, and of providing for some of the

separate functions of the Senate, came to be closely considered

together. We are to look for its purposes, therefore, in the

provisions specially devised for the settlement of these relations. In

the first place, it was apparent that the executive would be a branch

of the government that ought never to be vacant. The principle which,

in hereditary monarchies, on the death of the sovereign, instantly

devolves the executive power upon him who stands next in a fixed order

of succession, must in some degree be imitated in purely elective

governments, if great mischiefs are to be avoided. The difficulty

which attends its application to such governments consists not in the

nature of the principle itself, but in finding a number of public

functionaries who can be placed in a certain order of succession,

without creating mere heirs to the succession, for that purpose alone.

In hereditary governments, the members of a family, in a designated

order, stand as the successive recipients of the executive office; and

each of them, until he reaches the throne, may have no other function

in the state than that of an heir, near or remote, to the crown, and

may, without inconvenience to the public welfare, occupy that

position alone. But in elective, and especially in republican

governments, the succession must be devolved on some person already

filling some other office; for to designate as a successor to the

chief magistrate a person who has no public employment, and no other

public position than that of an heir apparent, would be attended with

many obvious disadvantages, in such a government.

Fortunately, the peculiar construction of the Senate was found to

require a presiding officer who should not be a member of the body

itself. As each State was to be represented by two delegates, and as

it would be important not to withdraw either of them from active

participation in the business of the chamber, a presiding officer was

needed who would represent neither of the States. By placing the

Vice-President of the United States in this position, he would have a

place of dignity and importance, would be at all times conversant with

the public interests, and might pass to the chief magistracy, on the

occurrence of a vacancy, attended with the public confidence and

respect. This arrangement was devised by the grand committee, and was

adopted with general consent. It contemplated, also, that the

Vice-President, as President of the Senate, should have no vote,

unless upon questions on which the Senate should be equally divided;

and on account of his relation to this branch of the legislature, the

ultimate election of the Vice-President, when the electors had failed

to appoint him under the rule prescribed, was retained in the hands of

the Senate.

The rule that was to determine when the Vice-President was to succeed

to the functions of the chief magistrate, was also embraced in the

plan of the grand committee. It was apparent that a vacancy in the

principal office might occur by death, by resignation, by the effect

of inability to discharge its powers and duties, and by the

consequences of an impeachment. When either of these events should

occur, it was provided that the office should devolve on the

Vice-President. In the case of death or resignation of the President,

no uncertainty can arise. In a case of impeachment, a judgment of

conviction operates as a removal from office. But the grand committee

did not provide, and the Constitution does not contain any provision

or direction, for ascertaining the case of an inability to discharge

the powers and duties of the office. When such an inability is

supposed to have occurred, and is not made known by the President

himself, how is it to be ascertained? Is there any department of the

government that can, with or without a provision of law, proceed to

inquire into the capacity of the President, and to pronounce him

unable to discharge his powers and duties? What is meant by the

Constitution as _inability_ is a case which does not fall within the

power of impeachment, for that is confined to treason, bribery, and

other high crimes and misdemeanors. It is the case of a simple

incapacity, arising from insanity, or ill health, or, as might

possibly occur, from restraint of the person of the President by a

public enemy. But in the former case, how shadowy are the lines which

often separate the sound mind or body from the unsound! Society has

had one memorable example, in modern times and in constitutional

monarchy, of the delicacy and difficulty of such an inquiry;--an

instance in which all the appliances of science and all the fixed

rules of succession were found scarcely sufficient to prevent the rage

of party, and the struggles of personal ambition, from putting the

state in jeopardy.[328] With us, should such a calamity ever happen,

there must be a similar effort to meet it as nearly as possible upon

the principles of the Constitution, and consequently there must be a

similar strain on the Constitution itself.

In order to make still further provision for the succession, Congress

were authorized to declare by law what officer should act as

President, in case of the removal, death, resignation, or inability of

both the President and the Vice-President, until the disability should

be removed, or a new President should be elected.

The mode of choosing the electors was, as we have seen, left to the

legislatures of the States. Uniformity, in this respect, was not

essential to the success of this plan for the appointment of the

executive, and it was important to leave to the people of the States

all the freedom of action that would be consistent with the free

working of the Constitution. But it was necessary that the time of

choosing the electors, and the day on which they were to give their

votes, should be prescribed for all the States alike. These

particulars were, therefore, placed under the direction of Congress,

with the single restriction, that the day of voting in the electoral

colleges should be the same throughout the United States. In order to

make the electors a distinct and independent body of persons,

appointed for the sole function of choosing the President and

Vice-President, it was provided further, that no senator or

representative, or person holding an office of trust or profit under

the United States, shall be appointed an elector.[329]

The electors were required to meet in their respective States, and to

vote by ballot for two persons, one of whom at least should not be an

inhabitant of the same State with themselves. Having made a list of

all the persons voted for, and of the number of votes given for each,

they were to sign and certify it, and to transmit it sealed to the

seat of government of the United States, directed to the President of

the Senate, who, in the presence of the Senate and the House of

Representatives, was to open all the certificates, and the votes were

then to be counted.

Such was the method devised by the framers of the Constitution for

filling the executive office. Experience has required some changes to

be made in it. It has been found that to require the electors to

designate the persons for whom they vote as the President and

Vice-President, respectively, has a tendency to secure a choice by the

electoral votes, and therefore to prevent the election from being

thrown into the House of Representatives; and it has also been deemed

expedient, when the election has devolved on the House of

Representatives, to confine the choice of the States to the three

highest candidates on the list returned by the electors. These changes

were made by the twelfth of the amendments to the Constitution,

adopted in the year 1804, which also provides that the person having

the greatest number of the electoral votes for President shall be

deemed to be chosen by the electors, if such number be a majority of

the whole number of electors appointed. If a choice is not made by the

electors, or by the House of Representatives, before the fourth day of

March next following the election, the amendment declares that the

Vice-President shall act as President, "as in the case" (provided by

the Constitution) "of the death or other constitutional disability of

the President."

In the appointment of the Vice-President, the amendment has also

introduced some changes. The person having the greatest number of the

electoral votes as Vice-President, if the number is a majority of all

the electors appointed, is to be the Vice-President; but if no choice

is thus effected, the Senate are to choose the Vice-President from the

two highest candidates on the list returned by the electors; but a

quorum for this purpose is to consist of two thirds of the whole

number of senators, and a majority of the whole number is made

necessary to a choice. The amendment further adopts the same

qualifications for the office of Vice-President as had been

established by the Constitution for the office of President.[330]

Thus it appears, from an examination of the original Constitution and

the amendment, that the most ample provision is made for filling the

executive office, in all contingencies but one. If the electors fail

to choose according to the rule prescribed for them, the election

devolves on the House of Representatives. If that body does not choose

a President before the fourth day of March next ensuing, the office

devolves on the Vice-President elect, whether he has been chosen by

the electors or by the Senate. But if the House of Representatives

fail to choose a President, and the Senate make no choice of a

Vice-President, or the Vice-President elect dies before the next

fourth day of March, the Constitution makes no express provision for

filling the office, nor is it easy to discover in it how such a

vacancy is to be met. The Constitution, it is true, confers upon

Congress authority to provide by law for the case of removal, death,

resignation, or inability of _both_ the President and Vice-President,

and to declare what officer shall then act as President; and it

provides that the officer so designated by a law of Congress shall act

accordingly, until the disability be removed, or a President shall be

elected. But there is every reason to believe that this provision

embraces the case of a vacancy in both offices occasioned by removal,

death, resignation, or inability, not of the President and

Vice-President elect, but of the President and Vice-President in

office. It may be doubted whether the framers of the original

Constitution intended to provide for a vacancy in both offices

occasioned by the failure of the House of Representatives to elect a

President and the death of the Vice-President elect, or a non-election

of a Vice-President by the Senate, before the fourth day of March.

Their plan was in the first instance studiously framed for the purpose

of impressing on the electors the duty of concentrating their votes;

and although they saw and provided for the evident necessity of an

election of a President by the House of Representatives, when the

electoral votes had not produced a choice, they omitted all express

provision for a failure of the House to choose a President, apparently

for the purpose of making the States in that body feel the importance

of the secondary election, and the duty of uniting their votes. This

omission was supplied by the amendment, which authorizes the

Vice-President elect to act as President, when the House of

Representatives have failed to choose a President, "as in the case of

the death or other constitutional disability of the President." This

adoption, for the case of a non-election by the House, of the mode of

succession previously established by the Constitution, shows that the

authority which the Constitution gave to Congress to declare by law

what officer shall act as President, in case of a vacancy in both

offices, was confined to the removal, death, resignation, or inability

of the President and Vice-President in office, and does not refer to

the President and Vice-President elect, whose term of office has not

commenced.[331]

The committee of detail made no provision respecting the

qualifications of the President. But the grand committee, to whom the

construction of the office was referred, recommended the

qualifications which are to be found in the Constitution; namely, that

no person shall be eligible to the office who was not born a citizen

of the United States, or was not a citizen at the time of the adoption

of the Constitution, and who had not attained the age of thirty-five

years, and been fourteen years a resident within the United States.

These requirements were adopted with unanimous assent.[332]

That the executive should receive a stipend, or pecuniary

compensation, was a point which had been settled in the earliest stage

of the proceedings, notwithstanding the grave authority of Franklin,

who was opposed to it. The speech which he delivered on this subject

was based upon the maxim, that, in all cases of public service, the

less profit, the greater honor. He seems to have been actuated chiefly

by the fear that the government would in time be resolved into a

monarchy; and he thought this catastrophe would be longer delayed, if

the seeds of contention, faction, and tumult were not sown in the

system, by making the places of honor places of profit. He maintained

this opinion for the case even of a plural executive, which he

decidedly advocated; and he instanced the example of Washington, who

had led the armies of the Revolution for eight years without receiving

the smallest compensation for his services, to prove the

practicability of "finding three or four men, in all the United

States, with public spirit enough to bear sitting in peaceful council

for perhaps an equal term, merely to preside over our civil concerns,

and see that our laws are duly executed." His plan was treated with

the respect due to his illustrious character, but no one failed to see

that it was a "Utopian idea."[333] The example of Washington was, in

truth, inapplicable to the question. A patriotic Virginia gentleman,

of ample fortune, was called upon, in the day of his country's

greatest trial, to take the lead in a desperate struggle for

independence. The nature of the war, his own eminence, his character

and feelings, the poverty of a country which he foresaw would often be

unable to pay even the common soldier, and his motives for embarking

in the contest, all united to make the idea of compensation

inadmissible to a man whose fortune made it unnecessary. Such a

combination of circumstances could scarcely ever occur in the case of

a chief magistrate of a regular and established government. If an

individual should happen to be placed in the office, who possessed

private means enough to render a salary unnecessary to his own wants,

or to the dignity of the position, the duty of his example might point

in precisely the opposite direction, and make it expedient that he

should receive what his successors would be unable to decline. But the

real question which the framers of the Constitution had to decide was,

in what way could the office be constituted so as to give the people

of the United States the widest range of choice among the public men

fit to be placed in it. To attach no salary to the chief executive

office, in a republican government, would practically confine the

office to men who had inherited or accumulated wealth. The Convention

determined that this mischief should be excluded. They adopted the

principle of compensation for the office of chief magistrate, and when

the committee of detail came to give effect to this decision, they

added the provision, that the compensation shall neither be increased

nor diminished during the period for which a President has been

elected.[334] The limitation which confines the President to his

stated compensation, and forbids him to receive any other emolument

from the United States, or from any State, was subsequently

introduced, but not by unanimous consent.[335]

The question whether the single person in whom the executive power was

to be vested should exercise it with or without the aid or control of

any council of state, was one that in various ways ran through the

several stages of the proceedings. As soon as it was settled that the

executive should consist of a single person, the nature and degree of

his responsibility, and the extent to which it might be shared by or

imposed upon any other officers, became matters of great practical

moment. What was called at one time a council of revision was a body

distinct from a cabinet council, and was proposed for a different

purpose. The function intended for it by its advocates related

exclusively to the exercise of the revisionary check upon legislation.

But we have seen that the nature of this check, the purposes for which

it was to be established, and the practical success with which it

could be introduced into the legislative system, required that the

power and the responsibility should rest with the President alone.

There remained, however, the further question concerning a cabinet, or

council of state; an advisory body, with which some of the most

important persons in the Convention desired to surround the

President, to assist him in the discharge of his duties, without the

power of controlling his actions, and without diminishing his legal

responsibility. Such a plan not having received the sanction of the

Convention, the draft of the Constitution reported by the committee of

detail of course contained no provision for it. It was subsequently

brought forward, and received the recommendation of a committee;[336]

but the grand committee, who were charged with the adjustment of the

executive office, substituted for it a different provision, which gave

the President power to "require the opinion in writing of the

principal officer in each of the executive departments, upon any

subject relating to the duties of their respective offices." The

friends of a council[337] regarded this arrangement of the executive

office, especially with regard to the power of appointment, as

entirely defective.[338] But the reason on which it was rested by the

grand committee, and on which the plan of a council of state was

rejected, was, that the President of the United States, unlike the

executive in mixed governments of the monarchical form, was to be

personally responsible for his official conduct, and that the

Constitution should do nothing to diminish that responsibility, even

in appearance. If it had not been intended to make the President

liable to impeachment, a cabinet might have been useful, and would

certainly have been necessary, if there was to be any responsibility

anywhere for executive acts. But a large majority of the States

preferred to interpose no shield between the President and a public

accusation. He might derive any assistance from the great officers of

the executive departments which Congress might see fit to establish,

that he could obtain from their opinions or advice; but the powers

which the Constitution was to confer on him must be exercised by

himself, and every official act must be performed as his own.[339]

What those powers were to be, had not been fully settled when the

first draft of the Constitution came from the committee of detail. The

executive function, or the power and duty of causing the laws to be

duly and faithfully executed; authority to give information to

Congress on the state of the Union, and to recommend measures for

their consideration; power in certain cases to convene and to adjourn

the two houses; the commissioning of all officers, and the appointing

to office in cases not otherwise provided for by the Constitution; the

receiving of ambassadors; the granting of reprieves and pardons; the

chief command of the army and navy of the United States and of the

militia of the several States,--were all provided for. But the foreign

relations of the country were committed wholly to the Senate, as was

also the appointment of ambassadors and of judges of the Supreme

Court. It is not necessary to explain again the grounds on which the

Convention were finally obliged to alter this arrangement. It will be

convenient, however, to take up the several powers and functions of

the executive, and to describe briefly the scope and purpose

ultimately given to each of them.

In the plan of government originally proposed by Governor Randolph,

the division into the three departments of an executive, a

legislative, and a judiciary, implied, for the first of these

departments, according to the theory of all governments which are thus

separated, power to carry into execution the existing laws. This

government, however, was to succeed one that had regulated the affairs

of the Union for several years, in which all the powers vested in the

confederacy of the States were held and exercised by the Congress of

their deputies; and among those powers was that of declaring war and

making peace. This function is, moreover, embraced in the general

powers of the executive department, in most governments in which there

is a regular separation of that department from the legislative and

the judiciary. But it became apparent at the very commencement of the

process of forming the Constitution of the United States, that the

question whether the executive should be intrusted with the power of

war and peace would not only be made, but that the system would have

to be so arranged as to make the government, in this particular, an

exception to the general rule. This was partly owing to an

unwillingness to intrust such a power to one person;--or even to a

plurality of persons, if the executive should be so constituted. If to

the general powers of executing the laws, and of appointing to office,

there were to be added the power to make war and peace, and the whole

were to be vested in a single magistrate, it was rightly said that the

government would be in substance an elective monarchy. The power of

the executive, over the external relations of the country at least,

would be the same, in kind and in extent, as it is in constitutional

monarchies, and the sole difference would be that the supreme

magistrate would be elective. This was not intended, and was not

admissible. Still another reason for making the government of the

United States, in this feature, an exception to the general rule, was

the necessity for giving to the States, in their corporate capacities,

some control over the foreign relations of the country.

Our further inquiries concerning this part of the powers and functions

of the chief magistrate will only need to extend so far as to

ascertain what is the "executive power," which the Constitution

declares shall be "vested" in the President. In the resolutions, which

at different stages had previously passed in the Convention, this had

been described as a "power to carry into execution the national laws";

and this description was regarded as including such other powers, not

legislative or judicial in their nature, as might from time to time be

delegated to the President by Congress.[340] The committee of detail,

in drafting the Constitution, employed the phrase "executive power" to

describe what had thus been designated by the resolutions sent to

them; and as the plan of government which they presented proposed to

make the declaration of a state of war a legislative act, the

prosecution of a war, when declared, was left to fall within the

executive duties as part of the "executive power." In order, moreover,

that the executive duties might be still more clearly defined, the

committee provided that the President "shall take care that the laws

be faithfully executed," and imposed upon him the same obligation by

the force of his oath of office. The committee having been directed to

provide for the end in view, it was considered that they were also to

provide the means by which the end was to be obtained.[341]

Accordingly, they made the President commander-in-chief of the army

and navy, and of the militia of the States when called into the

service of the United States. The President appears, therefore, to

have been placed in the same position with reference to the means to

be employed in the discharge of all his executive duties, when force

may in his judgment be necessary. The declaration of a state of war is

an enactment by the legislative branch of the government; the creation

of laws is a function that belongs exclusively to the same

department;--but when a law exists, or the state of war exists, it is

for the President, by virtue of his executive office, and of his

position as commander-in-chief, to employ the army and navy, and the

militia actually called into the service of the United States, in the

execution of the law, or the prosecution of hostilities, in such a

manner as he may think proper.[342]

Closely allied to the power of executing the laws is that of pardoning

offences, and relieving against judicial sentences. This power was

originally extended by the committee of detail to all offences

against the United States, excepting cases of impeachment, in which

they provided that the pardon of the President should not be pleaded

in bar. This would have made the power precisely like that of the king

of England; since, by the English law, although the king's pardon

cannot be pleaded in bar of an impeachment, he may, after conviction,

pardon the offender. But as it was intended in the Constitution of the

United States to limit the judgment in an impeachment to a removal

from office, and to subsequent disqualification for office, there

would not be the same reason for extending to it the executive power

of pardon that there is in England, where the judgment is not so

limited. The Convention, therefore, took from the President all power

of pardon in cases of impeachment, making them the sole exception to

the power.[343] A strong effort was indeed made to establish another

exception in cases of treason, upon the ground, chiefly, that the

criminal might be the President's own instrument in an attempt to

subvert the Constitution. But since all agreed that a power of pardon

was as necessary in cases of treason as in all other offences, and as

it must be given to the legislature, or to one branch of it, if not

lodged with the executive, a very large majority of the States

preferred to place it in the hands of the President, especially as he

would be subject to impeachment for any participation in the guilt of

the party accused.[344]

The power to make treaties, which had been given to the Senate by the

committee of detail, and which was afterwards transferred to the

President, to be exercised with the advice and consent of two thirds

of the senators present, was thus modified on account of the changes

which the plan of government had undergone, and which have been

previously explained. The power to declare war having been vested in

the whole legislature, it was necessary to provide the mode in which a

war was to be terminated. As the President was to be the organ of

communication with other governments,[345] and as he would be the

general guardian of the national interests, the negotiation of a

treaty of peace, and of all other treaties, was necessarily confided

to him. But as treaties would not only involve the general interests

of the nation, but might touch the particular interests of individual

States, and, whatever their effect, were to be part of the supreme law

of the land, it was necessary to give to the senators, as the direct

representatives of the States, a concurrent authority with the

President over the relations to be affected by them. The rule of

ratification suggested by the committee to whom this subject was last

confided was, that a treaty might be sanctioned by two thirds of the

senators present, but not by a smaller number. A question was made,

however, and much considered, whether treaties of peace ought not to

be subjected to a different rule. One suggestion was, that the Senate

ought to have power to make treaties of peace without the concurrence

of the President, on account of his possible interest in the

continuance of a war from which he might derive power and

importance.[346] But an objection, strenuously urged, was, that, if

the power to make a treaty of peace were confided to the Senate alone,

and a majority or two thirds of the whole Senate were to be required

to make such a treaty, the difficulty of obtaining peace would be so

great, that the legislature would be unwilling to make war on account

of the fisheries, the navigation of the Mississippi, and other

important objects of the Union.[347] On the other hand, it was said

that a majority of the States might be a minority of the people of the

United States, and that the representatives of a minority of the

nation ought not to have power to decide the conditions of peace.

The result of these various objections was a determination on the part

of a large majority of the States not to make treaties of peace an

exception to the rule, but to provide a uniform rule for the

ratification of all treaties. The rule of the Confederation, which had

required the assent of nine States in Congress to every treaty or

alliance, had been found to work great inconvenience; as any rule must

do, which should give to a minority of States power to control the

foreign relations of the country. The rule established by the

Constitution, while it gives to every State an opportunity to be

present and to vote, requires no positive quorum of the Senate for the

ratification of a treaty; it simply demands that the treaty shall

receive the assent of two thirds of all the members who may be

present. The theory of the Constitution undoubtedly is, that the

President represents the people of the United States generally, and

the senators represent their respective States; so that, by the

concurrence which the rule thus requires, the necessity for a fixed

quorum of the States is avoided, and the operations of this function

of the government are greatly facilitated and simplified.[348] The

adoption, also, of that part of the rule which provides that the

Senate may either "advise or consent," enables that body so far to

initiate a treaty, as to propose one for the consideration of the

President;--although such is not the general practice.

Having already described the changes which took from the Senate alone

the appointment of the judges of the Supreme Court and ambassadors, it

is only necessary in this connection to notice the manner in which the

power of appointment to all offices received its final scope and

limitations. The plan reported by the committee of detail had, as we

have repeatedly seen, vested the appointment of ambassadors and judges

of the Supreme Court in the Senate, and had given to the President the

sole voice in the appointment of all other officers of the United

States. The adjustment afterwards made gave the nomination of all

officers to the President, but required the advice and consent of the

Senate to complete an appointment. Two inconveniences were likely to

be experienced under this arrangement. Many inferior offices might be

created, which it would be unnecessary and inexpedient to fill by this

process of nomination by the President and confirmation by the Senate;

and vacancies might occur in all offices, which would require to be

filled while the Senate was not in session. To obviate these

inconveniences, the Congress were authorized to vest the appointment

of such inferior officers as they might think proper in the President

alone, in the courts of law, or in the heads of departments; and power

was given to the President to fill up all vacancies that might happen

during the recess of the Senate, by granting commissions which should

expire at the end of their next session.[349] In order to restrain the

President from practically creating offices by the power of

appointment, his power was limited to "offices created by law," and to

those specially enumerated in the Constitution.[350]

In addition to these powers, the committee of detail had provided for

certain direct relations, of a special nature, between the President

and the Congress. One of these was to consist in giving to the

Congress from time to time information of the state of the Union, and

in recommending to their consideration such measures as he shall judge

necessary and expedient. The other was embraced in the power to

convene the two houses on extraordinary occasions; and, whenever there

should be a disagreement between them with respect to the time of

adjournment, to adjourn them to such time as he shall think proper.

The latter power is to be taken in connection with the clause which

requires Congress to meet at least once in every year, and on the

first Monday in December, unless a different day shall be appointed by

law. Neither the two houses by agreement, nor the President in case of

a disagreement, can fix on a time of adjournment beyond the day of the

commencement of the next regular session. But subject to this

restriction, the power of the President to determine the time at which

the two houses shall reassemble, when they do not agree upon a time,

extends to every session of Congress, whether it be regular or

"extraordinary."[351]

FOOTNOTES:

[325] August 24. Elliot, V. 472, 473.

[326] The Constitution was published in the Pennsylvania Journal,

Sept. 19th. On the 27th, another Philadelphia paper suggested, or, as

we should now say, "nominated" General Washington for the Presidency.

[327] Delaware. Elliot, V. 519.

[328] I allude, of course, to the case of King George III., which had

not happened when our Constitution was framed. To ascertain the sanity

of a private person is certainly often no less delicate and difficult,

than to inquire into the sanity of a person in a high public position.

But there is a legal process for determining the capacity of every

person to discharge private duties or to exercise private rights. In

the case of the President of the United States, there is no mode

provided by the Constitution for ascertaining his inability to

discharge his public functions, and no authority seems to have been

given to Congress to provide for such an inquiry. Perhaps the

authority could not have been given, with safety and propriety.

[329] This clause was inserted, by unanimous consent, on the motion of

Mr. King and Mr. Gerry, September 6. Elliot, V. 515.

[330] See _post_, p. 621.

[331] Congress, however, have not only provided that the President

_pro tempore_ of the Senate and the Speaker of the House of

Representatives shall successively act as President, in case of the

removal, death, resignation, or inability both of the President and

Vice-President, until the disability be removed or a President shall

be elected, but also that, whenever the offices of President and

Vice-President _shall both become vacant_, a new appointment of

electors shall be ordered, and a new election made. The constitutional

authority for this latter provision is at least doubtful. (Act of

March 1, 1792.) I have discovered no evidence that the framers of the

Constitution contemplated an intermediate election of President and

Vice-President, excepting an amendment moved by Mr. Madison. The

clause which enables Congress to declare what officer shall act as

President, on the death, &c. of both the President and Vice-President,

was introduced by Governor Randolph, and terminated thus: "And such

officer shall act accordingly, until the time of electing a President

shall arrive." Mr. Madison moved to substitute for this the words,

"until such disability be removed, or a President shall be elected";

and he has recorded in his Minutes, that he remarked, on moving this

amendment, that the phraseology of Governor Randolph "would prevent a

supply of the vacancy by an intermediate election." This amendment was

adopted. (Elliot, V. 520, 521.) But the difficulty in the way of

construing the clause so as to give effect to this suggestion is, that

the terms employed by Mr. Madison do not of themselves necessarily

import an authority to Congress to order an intermediate election, any

more than those used by Governor Randolph. Either of these

expressions, when incorporated into the Constitution, would have to be

construed with reference to the whole system prescribed by the

Constitution for filling the executive branch of the government.

Taking all the provisions together, it appears that the executive

power is to be vested in a President, who is to hold his office for a

term of four years; that Congress shall fix the day on which he is to

be chosen by the electors; that, when so chosen, he is to hold the

executive power for four years; that if he dies, or is disabled,

within that term, and there is no Vice-President to succeed him,

Congress shall declare by law what officer shall then _act as

President_, that is, shall hold and exercise the executive power, and

such officer is to _act accordingly_, until the disability be removed,

or a President shall be elected. It would seem, therefore, that when

the officer designated by Congress is required to _act as President_,

the powers and duties of the office are devolved upon him for the

residue of the term of four years, in a case of vacancy by death,

removal, or resignation; for the terms "until a President shall be

elected" certainly do not import any express authority to order a new

election; and although there is a general authority in Congress to fix

the day for the election of a President, it must be a President chosen

for the term of four years.

[332] Elliot, V. 462, 507, 521, 522.

[333] He anticipated that it would be so regarded. Hamilton, who was

in all his views, as unlike Franklin as any man could be, seconded the

motion, out of respect for the mover.

[334] Elliot, V. 380.

[335] Connecticut, New Jersey, Delaware, and North Carolina voted

against it.

[336] Elliot, V. 446, 462.

[337] Mason, Franklin, Wilson, Dickinson, and Madison.

[338] Elliot, V. 525.

[339] Those who are not familiar with the precise structure of the

American government will probably be surprised to learn that what is

in practice sometimes called the "Cabinet" has no constitutional

existence as a directory body, or one that can decide anything. The

theory of our government is, that what belongs to the executive power

is to be exercised by the uncontrolled will of the President. Acting

upon the clause of the Constitution which empowers the President to

call for the opinions in writing of the heads of departments,

Washington, the first President, commenced the practice of taking

their opinions in separate consultation; and he also, upon important

occasions, assembled them for oral discussion, in the form of a

council. After having heard the reasons and opinions of each, he

decided the course to be pursued. The second President, Mr. John

Adams, followed substantially the same practice. The third President,

Mr. Jefferson, adopted a somewhat different practice. When a question

occurred of sufficient magnitude to require the opinions of all the

heads of departments, he called them together, had the subject

discussed, and a vote taken, in which he counted himself but as one.

But he always seems to have considered that he had the _power_ to

decide against the opinion of his cabinet. That he never, or rarely,

exercised it, was owing partly to the unanimity in sentiment that

prevailed in his cabinet, and to his desire to preserve that

unanimity, and partly to his disinclination to the exercise of

personal power. When there were differences of opinion, he aimed to

produce a unanimous result by discussion, and almost always succeeded.

But he admits that this practice made the executive, in fact, a

directory. Jefferson's Works, V. 94, 568, 569.

[340] Elliot, V. 141, 142.

[341] Elliot, V. 343, 344.

[342] The Constitution having vested in Congress power to provide for

calling the militia into the service of the United States, to execute

the laws, suppress insurrections, and repel invasions, the President

cannot call out the militia unless authorized to do so by Congress.

But with respect to the employment of the army and navy for any

executive purpose, it may be doubted whether any authority from

Congress is necessary; as it may also be doubted whether Congress can

exercise any control over the President in the use of the land or

naval forces, either in the execution of the laws, or in the discharge

of any other executive duty.

[343] Elliot, V. 480.

[344] Ibid. 549.

[345] It was to be one of the distinct functions of the President "to

receive ambassadors and other public ministers."

[346] Mr. Madison so thought. Elliot, V. 524.

[347] Ibid.

[348] The several votes taken upon different aspects of the rule for

the ratification of treaties make the theory quite clearly what is

stated in the text. See the proceedings, September 7, 8. Elliot, V.

524, 526.

[349] This power embraces of course only those offices the appointment

to which is vested in the President and Senate.

[350] The Constitution (Art. II. § 2) seems to contemplate

ambassadors, other public ministers and consuls, and judges of the

Supreme Court, as officers to exist under the Constitution, whether

provision is or is not made by law for their appointment and

functions. It is made the imperative duty of the President to

nominate, and with the consent of the Senate to appoint them. Hence it

has been supposed that the President can appoint a foreign minister

without waiting to have his particular office regulated or established

by law; and as the President conducts the foreign intercourse of the

country, he could prescribe the duties of such a minister. In like

manner, with the consent of the Senate, the President could appoint a

judge of the Supreme Court, and would be bound to do so, although no

act of Congress existed providing for the organization and duties of

the Court. But as the President cannot distribute the judicial power,

the Court, when so appointed, would have only the functions conferred

by the Constitution, namely, original jurisdiction in certain

enumerated cases.

[351] In the text of the Constitution, the President's power to adjourn

the two houses of Congress in case of a disagreement follows immediately

after his power to convene them on "extraordinary occasions"; and it

has, therefore, been suggested that his power to adjourn them is

confined to cases where they have been "extraordinarily" convened under

the first power. But it is to be observed that the whole of the third

section of Article II. contains an enumeration of separate powers of the

President, recited _seriatim_. The power to _convene_ Congress is one

power; and it extends only to "extraordinary" occasions, because the

Constitution itself, or a law, convenes them at a fixed period, and thus

makes the _ordinary_ occasions. But the power to adjourn the two houses

to a particular time, in cases of disagreement as to the time, is a

separate and general power, because the reason for which it was given at

all applies equally to all sessions. That reason is, that there may be a

peaceful termination of what would otherwise be an endless and dangerous

controversy. Both Hamilton in the Federalist and Judge Story in his

Commentaries have treated this as a separate and general power. (The

Federalist, No. 77. Story on the Constitution, § 1563.)

CHAPTER XIV.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--FORMATION OF THE

JUDICIAL POWER.

There now remains to be described the full conception and creation of

the third department of the government, its judicial power.

The distribution of the powers of government, when its subjects are to

sustain no relation to any other sovereignty than that whose

fundamental laws it is proposed to ordain, is a comparatively easy

task. In such a government, when the theoretical division into the

legislative, executive, and judicial functions is once adopted, the

objects to which each is to be directed fall readily into their

appropriate places. All that is necessary is, to see that these

departments do not encroach upon the rights and duties of each other.

There is, at least, no other power, claiming the obedience of the same

people, whose just authority it is necessary to regard, and on whose

proper domain no intrusion is to be permitted.

How different is the task, when a government, either federal or

national, is to be created, for a people inhabiting distinct political

States, whose sovereign power is to remain for many purposes supreme

over their respective subjects; when the individual is to be under

rules of civil duty declared by different public organs; and when the

object is to provide a judicial system through which this very

difference of authority may be made to work out the ends of social

order, harmony, and peace! This difficult undertaking was imposed upon

the framers of the Constitution of the United States, and it was by

far the most delicate and difficult of all their duties. It was

comparatively easy to agree on the powers which the people of the

States ought to confer on the general government, to define the

separate functions of the legislature and the executive, and to lay

down certain rules of public policy which should restrain the States

in the exercise of their separate powers over their own citizens. But

to construct a judicial power within the general government, and to

clothe it with attributes which would enable it to secure the

supremacy of the general Constitution and of all its provisions; to

give it the exact authority that would maintain the dividing line

between the powers of the nation and those of the State, and to give

to it no more; and to add to these a faculty of dispensing justice to

foreigners, to citizens of different States, and among the sovereign

States themselves, with a more even hand and with a more assured

certainty of the great ends of justice than any State power could

furnish,--these were objects not readily or easily to be attained. Yet

they were attained with wonderful success. The judicial power of the

United States, considered with reference to its adaptation to the

purposes of its creation, is one of the most admirable and felicitous

structures that human governments have exhibited.

The groundwork of its formation has been partly described in a

previous chapter, where some of the principles are stated, which had

been arrived at as being necessary to its great purposes. These

principles related to the persons who were to exercise its functions,

and to the jurisdiction or authority which they were to possess. With

respect to the persons who were to exercise the judicial power, the

result that had been reached when the first draft of the Constitution

was to be prepared had fixed the tenure of good behavior for their

office, and had placed their salaries, when once established, beyond

the reach of any power of diminution by the legislature. It had also

been determined that there should be one supreme tribunal, under the

Constitution, and that the legislature should have power to establish

inferior tribunals. But nothing more precise had been arrived at

respecting jurisdiction, than the broad principles which declared that

it should extend to cases arising under laws passed by the general

legislature, and to such other questions as might touch the national

peace and harmony. The committee of detail were to give effect to this

declaration. Their scheme provided, under the first of these heads,

that the jurisdiction should embrace cases arising under the laws of

the United States; and as questions touching the national peace and

harmony, they enumerated all cases affecting ambassadors, other

public ministers, and consuls; impeachments of officers of the United

States; all cases of admiralty and maritime jurisdiction;

controversies between two or more States, excepting such as might

regard territory or jurisdiction; controversies between a State and

citizens of another State, between citizens of different States, and

between a State or the citizens thereof and foreign states, citizens,

or subjects. In cases of impeachment, cases affecting ambassadors,

other public ministers, and consuls, and those in which a State should

be party, they assigned the original jurisdiction to the Supreme

Court. In all the other cases enumerated, the jurisdiction of the

supreme tribunal was to be appellate only, with such exceptions and

regulations as the legislature might make; and the original

jurisdiction was left to be assigned by the legislature to such

inferior tribunals as they might from time to time create. The trial

of all criminal offences, except in cases of impeachment, was to be in

the State where they had been committed, and was to be by jury.

Controversies between States respecting jurisdiction or territory, and

controversies concerning lands claimed under grants of different

States, were to be tried by the Senate, and were consequently excluded

from the judicial power.

This plan, when compared with the full outline of the jurisdiction, as

it was finally established, presented several remarkable defects. In

the first place, it was silent with respect to the important

distinction, familiar to the people of the United States, between

proceedings in equity and proceedings at common law. This distinction,

which extends not only to the forms of pleading, but to the principles

of decision, the mode of trial, and the nature of the remedy, had been

brought by the settlers of most of the Colonies from England, and had

been perpetuated in their judicial institutions. It existed in most of

the States, at the time of the formation of the national Constitution,

and it was, in fact, a characteristic feature of the only system of

judicature which the American people had known, excepting in their

courts of admiralty. Although the institutions of the States differed

in the degree in which they had adopted and followed it, the basis of

their jurisprudence and forms of proceeding was the common law, as

derived from its English sources and modified by their own customs or

legislation, with more or less of that peculiar and more ample relief

which is afforded by the jurisprudence and remedy known in the English

system under the name of equity.

Since the judicial power of the United States was to be exercised over

a people whose judicial habits were thus fixed; since it must, to some

extent, take cognizance of rights that would have to be adjudicated in

accordance with the jurisprudence under which they had arisen; and

since the individuals who would have a title to enter its tribunals

might reasonably demand remedies as ample as a judicature of English

origin could furnish, it was highly expedient that the Constitution

should fully adopt the main features of that judicature. It is quite

true, that a provision in the Constitution extending the judicial

power to "all cases" affecting certain persons or certain rights,

might be regarded by the legislature as a sufficient authority for the

establishment of inferior courts with both a legal and an equitable

jurisdiction, and might be considered to confer such a double

jurisdiction on the supreme tribunal contemplated by the Constitution.

But the text of the Constitution itself would be the source to which

the people of the United States would look, when called upon to adopt

it, for the benefits which they were to derive from it, and there

would be no part of it which they would scrutinize more closely than

that which was to establish the judicial power of the new government.

If they found in it no imperative declaration making it the duty of

Congress to provide for a jurisdiction in equity as well as at law,

and no express adoption of such a jurisdiction for the supreme

tribunal, they might well say that the character of the judicial power

was left to the accidental choice of Congress, or to doubtful

interpretation, instead of being expressly ordained in its full and

essential proportions by the people. If a citizen of one State were to

pursue a remedy in the courts of the Union against a citizen of

another State, or if one State should have a judicial controversy with

another, that would be a very imperfect system of judicature which

should leave the form and extent of the remedy to be determined by the

local law where the process was to be instituted, or which should

confine the relief to the forms and proceedings of the common law. If

the appellate jurisdiction of the supreme national tribunal were to be

exercised over any class of controversies originating in the State

courts, it was extremely important that the Constitution should

expressly ascertain whether suits at law, or suits in equity, or both,

were to be embraced within that appellate power. For these reasons, it

became necessary for the Convention to supply this defect, by

extending the judicial power, both in equity and at law, to the

several cases embraced in it.

Another defect in the report of the committee,--or what was regarded

as a defect when the Constitution was ratified,--and one which the

Convention did not supply, was in the omission of any express

provision for trial by jury in civil cases. Such a provision was

supplied by an amendment proposed by the first Congress that assembled

under the Constitution, and adopted in 1791; but it was regarded by

the framers of the Constitution as inexpedient, on account of the

different construction of juries in the different States, and the

diversity of their usages with respect to the cases in which trial by

jury was used.[352] It is quite possible that, after the Constitution

had declared that the jurisdiction of the national tribunals should

extend to all cases "in law" affecting certain parties or rights,

Congress would not have been at liberty to establish inferior

tribunals for the trial of cases "in law" by any other method than

according to the course of the common law, which requires that the

fact in such cases shall be tried by a jury. But the objection which

afterwards prevailed was connected, as we shall presently see, with

what was regarded as a dangerous ambiguity in the clause of the

Constitution which gave to the Supreme Court its appellate

jurisdiction both as to law and fact.

The plan of the committee of detail contemplated a supreme tribunal

with original jurisdiction over a few of the cases within the judicial

power, and appellate jurisdiction over all the other cases enumerated.

Inquiry was made in the Convention, whether this appellate

jurisdiction was intended to embrace fact as well as law, and to

extend to cases of common law as well as to those of equity and

admiralty jurisdiction. The answer was given, that such was the

intention of the committee, and the jurisdiction of the federal court

of appeals, under the Confederation, was referred to as having been so

construed. The words "both as to law and fact" were thereupon

introduced into the description of the appellate power, by unanimous

consent.[353] Various explanations were subsequently given, when the

Constitution came before the people, of the force and meaning of these

words. The most probable and the most acute of these explanations was

that made by Hamilton in the Federalist,[354] which limited the effect

of the words, in reference to common law cases, to so much cognizance

of the facts involved in a record as is implied in the application of

the law to them by the appellate tribunal. But the truth was, the

words were of very comprehensive import. While they were used in order

to save to the Supreme Court power to revise the facts in equity and

admiralty proceedings, they made no distinction, and imposed upon

Congress no duty to make a distinction, between cases in equity and

admiralty, and cases at common law; and although it might be true,

that in some States the facts in all cases were tried by a jury, and

that in some cases so tried there ought to be a power to revise the

facts, yet it was not conceded that such a power ought to exist over

the verdicts of juries in cases of common law jurisdiction. This

explanation will serve to show the double purpose of the amendment

made in 1791. The people of many of the States required an express

guaranty that trial by jury should be preserved in suits at common

law, and that the facts once tried by a jury should not be re-examined

otherwise than according to the rules of the common law, which have

established certain well-defined limits to the power of an appellate

tribunal concerning the facts appearing to have been found by a

jury.[355]

There was still another omission in the report of the committee, of

great magnitude. They had included in the judicial power cases arising

under the laws of the United States, but they had not embraced cases

arising under the Constitution and under treaties. At the same time,

the Constitution was to embrace not only the powers of the general

government, but also special restrictions upon the powers of the

States; and not only the Constitution itself, but the laws made in

pursuance of its provisions, and all treaties made under the authority

of the United States, were to be the supreme law of the land. This

supremacy could only be enforced by some prescribed action of some

department of the general government. The idea of a legislative

arrest, or _veto_, of State laws supposed to be in conflict with some

provision of the national Constitution, or with a treaty or a law of

the United States, had been abandoned. The conformity, moreover, of

the laws of Congress to the provisions of the Constitution, could only

be determined by the judicial power, when drawn into question in a

judicial proceeding. The just and successful operation of the

Constitution, therefore, required that, by some comprehensive

provision, all judicial cases[356] arising under the Constitution,

laws, or treaties of the United States--whether the question should

grow out of the action of a State legislature, or the action of any

department of the general government--should be brought within the

cognizance of the national judiciary. This provision was added by the

Convention. It completed the due proportions and efficacy of this

branch of the judicial power.

Trial by jury of all criminal offences (except in cases of

impeachment) had been provided for by the committee of detail, and

such trial was to be had in the State where the offence had been

committed. The Convention, in order to secure the same right of a jury

trial in cases where the offence had been committed out of any State,

provided that the trial should be at such place or places as the

Congress might by law have directed.[357]

These additions, with one other which included within the judicial

power all cases to which the United States might be party; the

transfer of the trial of impeachments to the Senate; and the transfer

to the judiciary of controversies between the States respecting

jurisdiction or territory, and controversies respecting land titles

claimed under the grants of different States,--were the principal

changes and improvements made in the plan of the committee.

The details of the arrangement will perhaps fail to interest the

general reader. Yet I cannot but think that to understand the purpose

and operation of this department of the national government would be a

very desirable acquisition for any of my readers not already possessed

of it; and having completed the description of the mode in which the

judicial power was constructed, I shall conclude this part of the

subject with a brief statement of its constitutional functions.

One of the leading purposes for which this branch of the government

was established, was to enable the Constitution to operate upon

individuals, by securing their obedience to its commands, and by

protecting them in the enjoyment of the rights and privileges which it

confers. The government of the United States was eminently intended,

among other purposes, to secure certain personal rights, and to exact

certain personal duties. The Constitution confers on the general

government a few special powers, but it confers them in order that the

general government may accomplish for the people of each State the

advantages and blessings for which the State governments are presumed

to be, and have in fact proved to be, inadequate. It lays upon the

governments and people of the States certain restrictions, and it lays

them for the protection of the people against an exercise of State

power deemed injurious to the general welfare. The government of the

United States, therefore, is not only a government which seeks to

protect the welfare and happiness of the people who live under it, but

it is so constructed as to make its citizens directly and individually

its subjects, exacting of them certain duties, and securing to them

certain rights. It comes into this relation by reason of its supreme

legislative power over certain interests, and the supreme authority of

its restrictions upon the powers of the States; and it is enabled to

make this relation effectual through its judicial department, which

can take cognizance of every duty that the Constitution exacts and of

every right that it confers, whenever they have assumed a shape in

which judicial power can act upon them. Let us take, as illustrations

of this function of the national judiciary, a single instance of the

obedience required by the Constitution, and also one of a right which

it protects. The Constitution empowers Congress to lay and collect

duties; which, when they are laid and incurred, become a debt due from

the individual owner of the property on which they are assessed to the

general government. Payment, in disputed cases, might have been left

to be enforced by executive power; but the Constitution has interposed

the judicial department, as the more peaceful agent, which can at once

adjudicate between the government and the citizen, and compel the

payment of what is found due. Again, the Constitution provides that no

State shall pass any law impairing the obligation of contracts. An

individual supposing himself to be aggrieved by such a law might have

been left to obtain such redress as the judicial or legislative

authorities of the State might be disposed to give him; but the

Constitution enables him finally to resort to the national judiciary,

which has power to relieve him against the operation of the law upon

his personal rights, while the law itself may be left upon the

statute-book of the State.

But while the judicial department of the general government was thus

designed to enforce the duties and protect the rights of individuals,

it is obvious that, in a system of government where such rights and

duties are to be ascertained by the provisions of a fundamental law

framed for the express purpose of defining the powers of the general

government and of each of its departments, and establishing certain

limits to the powers of the States, the mere act of determining the

existence of such rights or duties may involve an adjudication upon

the question, whether acts of legislative or executive power are in

conformity with the requirements of the fundamental law. On the one

hand, the judicial department is to see that the legislative authority

of the Union does not exact of individuals duties which are not within

its prescribed powers, and that no department of the general

government encroaches upon the rights of any other, or upon the rights

of the States; and, on the other hand, it has to see that the

legislative authority of the States does not encroach upon the powers

conferred upon the general government, or violate the rights which the

Constitution secures to the citizen. All this may be, and constantly

is, involved in judicial inquiries into the rights, powers, functions,

and duties of private citizens or public officers; and therefore, in

order that the judicial power should be able effectually to discharge

its functions, it must possess authority, for the purposes of the

adjudication, to declare even an act of legislation to be void, which

conflicts with any provision of the Constitution.

There were great differences of opinion in the Convention upon the

expediency of giving to the judges, as expositors of the Constitution,

power to declare a law to be void;[358] and undoubtedly such a power,

if introduced into some governments, would be legislative in its

nature, whether the persons who were to exercise it should be called

judges, or be clothed with the functions of a council of revision. But

under a limited and written constitution, such a power, when given in

the form and exercised in the mode provided for in the Constitution of

the United States, is strictly judicial. This is apparent from the

question that is to be determined. It arises in a judicial controversy

respecting some right asserted by or against an individual; and the

matter to be determined is whether an act of legislation, supposed to

govern the case as law, is itself in conformity to the supreme law of

the Constitution. In a government constituted like ours, this question

must be determined by some one of its departments. If it be left with

the executive to decide finally what laws shall be executed, because

they are consistent with the Constitution, and what laws shall be

suspended, because they violate the Constitution, this practical

inconvenience may arise, namely, that the decision is made upon the

abstract question, before a case to be governed by the law has arisen.

If the legislature were empowered to determine, finally, that the laws

which they enact are constitutional, the same practical difficulty

would exist; and the individual, whose rights or interests may be

affected by a law, when put into operation, would have no opportunity

to be heard upon what in our form of government is a purely juridical

question, on which every citizen should be heard, if he desires it,

before the law is enforced in his case. On the other hand, if the

final and authoritative determination is postponed until the question

arises in the course of a judicial controversy respecting some right

or duty or power of an individual who is to be affected by the law, or

who acts under it, the question itself is propounded not in the

abstract, but in the concrete; not in reference to the bearing of the

law upon all possible cases, but to its bearing upon the facts of a

single case. In this aspect, the question is of necessity strictly

judicial. To withhold from the citizen a right to be heard upon the

question which in our jurisprudence is called the constitutionality of

a law, when that law is supposed to govern his rights or prescribe his

duties, would be as unjust as it would be to deprive him of the right

to be heard upon the construction of the law, or upon any other legal

question that arises in the cause. The citizen lives under the

protection, and is subject to the requirements, of a written

fundamental law. No department of the national, or of any State

government, can lawfully act otherwise than according to the powers

conferred or the restrictions imposed by that instrument. If the

citizen believe himself to be aggrieved by some action of either

government which he supposes to be in violation of the Constitution,

and his complaint admit of judicial investigation, he must be heard

upon that question, and it must be adjudicated, or there can be no

administration of the laws worthy of the name of justice.

It is interesting, therefore, to observe how this function of the

judicial power gives to the operation of the government a

comparatively high degree of simplicity, exactness, and directness,

notwithstanding the refined and complex character of the system which

its framers were obliged to establish. To judge of the merits of that

system, in this particular, it is necessary to recur again to those

alternative measures, to which I have frequently referred, and which

lay directly in their path. One of these measures was that of a

council of revision, to be charged with the duty of arresting improper

laws. Besides the objection which has been already alluded to,--that

the question of the conformity of a law to the Constitution would have

thus been finally passed upon in the abstract,--such an institution,

although theoretically confined to this inquiry, would have become

practically a third legislative chamber; for it would inevitably have

happened that considerations of expediency would also have found their

way into the deliberations of a numerous body appointed to exercise a

revisory power over all acts of legislation. There is no mode in which

the question of constitutional power to enact a law can be determined,

without the influence of considerations of policy or expediency, so

effectually, as by confining the final determination to the special

operation of the law upon the facts of an individual case. When the

tribunal that is to decide this question is, by the very form in which

it is required to act, limited to the bearing of the law upon some

right or duty of an individual placed in judgment by a record, it is

at once relieved of the responsibility, and in a great degree freed

from the temptation, of considering the policy of the legislation. If,

therefore, it be conceded--as every one will concede--that, whatever

public body is specially instituted for the purpose of submitting the

acts of the legislature to the test of the Constitution, it should

neither possess the power, nor be exposed to the danger, of invading

the legislative province, by acting upon motives of expediency, it

must be allowed that the framers of the Constitution did wisely in

rejecting the artificial, cumbrous, and hazardous project of a council

of revision. The plan of such a council was, it is true, much favored,

and indeed insisted upon, by some of the wisest men in the Convention.

But it was urged at a time when the negative that was to be given to

the President had not been settled, and when he had not been made

sufficiently independent of the legislature to insure his unfettered

employment of the negative that might be given to him. The purpose of

the proposed council of revision was to strengthen his hands, by

uniting the judges with him in the exercise of the "veto." This would

have given to the judges a control both over the question of

constitutional power and the question of legislative policy. As to the

latter, it became unnecessary, as well as inexpedient, to unite the

judges with the President, after he had been clothed with a suitable

negative, and after his election had been taken from the legislature;

and as to the former question, the final arrangement of the judicial

power made it equally unnecessary to form the judges into a council

of revision, since, if the President should fail to arrest an

unconstitutional law, when presented for his approval, it could be

tested in the ordinary course of judicial proceedings after it had

gone into operation.

But the conformity of laws of Congress to the Constitution was not all

that was to be secured. Some prudent and effectual means were to be

devised, by which the acts of the State governments could be subjected

to the same test. The project of submitting the laws of the States to

some department of the general government, while they were in the

process of being enacted, or before they could have the form of law,

was full of inconvenience and hazard. It could not have been attempted

without an injury to State pride, that would have aroused an

inextinguishable opposition to the national authority, even if the

plan could once have been assented to. Yet there was no other

alternative, unless the judicial power of the general government

should be so constructed as to enable it to take the same cognizance

of a constitutional question, when arising upon the law of a State,

that it was to take of such a question when arising upon an act of

Congress. The same necessity would exist in the one case, as in the

other, for a power within the general government to give practical

effect to that supremacy which the Constitution was to claim for

itself, for treaties, and for the laws passed in pursuance of its

provisions. All the restrictions which the Constitution was to lay

upon the powers of the States would be nugatory, if the States

themselves were to be the final judges of their meaning and operation.

This transcendent power of interpretation and application, so

logically necessary, and yet so certain to wound and irritate, if

exercised by direct interference, could be wielded, without injurious

results, through the agency of judicial forms, by a judicial

investigation into personal rights, when affected by the action of a

State government, just as it could be in reference to the acts of any

department of the national government that could be made the subject

of proceedings in a court of justice.

The relation of the judicial power to the execution of treaties rests

upon the same grounds of paramount necessity. It is not merely for the

sake of uniformity of interpretation, that the national judiciary is

authorized to decide finally all cases arising under treaties,

although uniformity of interpretation is essential to the preservation

of the public faith; but it is in order that the treaty shall be

executed, by being placed beyond the hazards both of wrong

construction and of interested opposition. The memorable instance of

the Treaty of Peace, the absolute failure of which in point of

execution, before the adoption of the Constitution, has been described

in the first volume of this work, presents the great illustration, in

our constitutional history, of the only mode in which the supremacy of

treaty stipulations as law can be maintained in our system of

government. "The United States in Congress assembled," under the

Confederation, had the same exclusive authority to make treaties that

is now possessed by the President and the Senate under the

Constitution, and a treaty was in theory as obligatory then, upon the

separate States and their inhabitants, as it is now. But it has been

found to be an axiom of universal application in the art of

government, that a supremacy which is merely theoretical is no real

supremacy. If a stipulation made by the proper authority with a

foreign government is to have the force of law, requiring the

obedience of individuals and of all public authorities, its execution

must be committed to a judiciary acting upon private rights without

the hinderance or influence of adverse legislation.

There is another branch of the judicial power which illustrates in a

striking manner the object embraced in the preamble of the

Constitution, where the people of the United States declare it to be

their purpose "to establish justice." This is found in the provision

for a special jurisdiction over the rights of persons bearing a

certain character. Like almost everything else in the Constitution,

this feature of the judicial power sprang from a necessity taught by

previous and severe experience. Reasoning from the mere nature of such

a government as that of the United States, it might seem that the

judicatures of the separate States would be sufficient for the

administration of justice in all cases in which private rights alone

are concerned, and by which no power or interest of the general

government, and no provision of the general Constitution, is likely to

be affected. But we find in the judicial power of the United States a

particular jurisdiction given on account of the mere civil characters

of the parties to a controversy; and its existence there is to be

accounted for upon other than speculative reasons. From the

Declaration of Independence to the day of the ratification of the

Constitution, the judicial tribunals of the States had been unable to

administer justice to foreigners, to citizens of other States, to

foreign governments and their representatives, and to the governments

of their sister States, so as to command the confidence and satisfy

the reasonable expectations of an enlightened judgment. Hence the

necessity for opening the national courts to these various classes of

parties, whose different positions may now be briefly considered.

In a country of confederated States, each possessing a full power of

legislation, it could not but happen--as it did constantly happen in

this Union before the adoption of the Constitution--that the

determination of controversies between citizens of the State where the

adjudication was to be had, and citizens of another State, would be

exposed to influences unfavorable to the ends of justice. In truth,

one of the parties in such a controversy was virtually an alien, in

the tribunal which he was obliged to enter; for although the Articles

of Confederation undertook to secure to the free inhabitants of each

State all the privileges and immunities of free citizens in the

several States, yet it is obvious that the efficacy of such a

provision must depend almost wholly upon the spirit of the tribunals,

and upon their capacity to give effect to such a declaration of

rights, against a course of State policy or the positive enactments of

a State code. The chief difficulty of the condition of affairs

existing before the Constitution lay not so much in the hazards of a

violation of principle through local prejudice, or the superior force

of local policy or legislation,--although these influences were always

powerful,--as in the fact that, when these influences were likely to

be most active, or were most feared, there was no tribunal to which

resort could be had, and which was known to be beyond their operation

and their reach. The articles of compact between the States had

intended to remove from the citizens of the different States the

disabilities of practical alienage under which they would have stood

in the tribunals of each other. But with that mere declaration those

articles stopped. If the litigant saw that the local law was likely to

be administered to him as if he were a foreigner, or feared that the

scales of justice would not be held with an impartial hand, he could

go nowhere else for a decision. This was a great evil; for much of the

value of every judicature depends upon the confidence it inspires.

There were still other and perhaps stronger reasons for creating an

independent jurisdiction, to be resorted to by foreigners, in

controversies with citizens of the States. No clause in the

Constitution was to make them equal in rights with citizens, and for

the very reason of their alienage, therefore, it was necessary to

give them access to tribunals organized under the authority of the

general government, which would be responsible to foreign powers for

the treatment that their subjects might receive in the United States.

Ambassadors, too, and other foreign ministers, would not only be

aliens, but would possess the character of representatives of their

sovereigns; and consuls would be the public agents of their

governments, although not bearing the diplomatic character. These

functionaries were therefore permitted to resort to the judicial power

of the United States; and for the purpose of more effectually

protecting the national interests that might be involved in their

personal or official relations, original jurisdiction was given to the

Supreme Court in all cases affecting them.

In addition to these, there were other controversies, which, as we

have seen, were included within the judicial power of the United

States, on account of the character of the parties; namely, those to

which the United States might be a party; those to which a State of

the Union might be a party, where the opposite party was another State

of the Union, or a citizen of another State of the Union, or a foreign

state or its citizens or subjects; and those between citizens of a

State of the Union, and foreign states, citizens, or subjects.

Finally, controversies between citizens of the same State claiming

lands under grants of different States were placed under the same

jurisdiction for similar reasons;--because the State tribunals could

not be expected to afford that degree of impartiality which the

circumstances of these several cases required.

There remains only one other branch of the jurisdiction conferred by

the Constitution on the tribunals of the United States which it is

necessary to notice; namely, the admiralty and maritime jurisdiction.

With respect to the criminal jurisdiction in admiralty, in cases of

piracies and felonies committed on the high seas, and the prize

jurisdiction, the Articles of Confederation had given to the Congress

the exclusive power of appointing courts for the trial of the former,

and for hearing and finally determining appeals in all cases of

capture. Such appeals were taken from the State courts of

admiralty,--tribunals which also possessed and exercised a civil

jurisdiction corresponding to that of the admiralty in England, but in

practice somewhat more extensive. When the Constitution was framed, it

was perceived to be expedient, on account of the relation of maritime

commerce to the intercourse of the people of the United States with

foreign nations, or to the intercourse of the people of different

States with each other, to give the whole civil as well as criminal

jurisdiction in admiralty, and the entire prize jurisdiction, original

as well as appellate, to the government of the Union. This was

effected by the comprehensive provision, which gives the judicial

power cognizance of "all cases of admiralty and maritime

jurisdiction"; expressions which have often been, and are still likely

to be, the subject of much forensic controversy with respect to the

particular transactions, of a civil nature, intended to be embraced

in the jurisdiction, but in reference to which there is nothing in the

known proceedings of the Convention, other than what is to be inferred

from the language selected, that affords any special evidence of the

intention of the framers of the Constitution.

FOOTNOTES:

[352] Elliot, V. 550.

[353] Elliot, V. 483.

[354] No. 81.

[355] See the seventh Amendment.

[356] By "cases arising under the Constitution," &c. the framers of

that instrument did not mean all cases in which any department of the

government might have occasion to act under provisions of the

Constitution, but all cases _of a judicial nature_; that is, cases

which, having assumed the form of judicial proceedings between party

and party, involve the construction or operation of the Constitution

of the United States. Elliot, V. 483.

[357] Elliot, V. 484. Constitution, Art. III. § 2, clause 3.

[358] Elliot, V. 429.

CHAPTER XV.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--EFFECT OF

RECORDS.--INTER-STATE PRIVILEGES.--FUGITIVES FROM JUSTICE AND FROM

SERVICE.

We now come to a class of provisions designed to place the people of

the separate States in more intimate relations with each other, by

removing, in some degree, the consequences that would otherwise flow

from their distinct and independent jurisdictions. This was to be done

by causing the rights and benefits resulting from the laws of each

State to be, for some purposes, respected in every other State. In

other words, by the establishment and effect of certain exceptions,

the general rule which absolves an independent government from any

obligation to regard the law, the authority, or the policy of another

government was, for some purposes, to be obviated between the States

of the American Union.

To some extent, this had been attempted by the Articles of

Confederation, by providing,--first, that the free inhabitants of each

of the States (paupers, vagabonds, and fugitives from justice excepted)

should be entitled to all privileges and immunities of free citizens in

the several States; and that the people of each State should have free

ingress and regress to and from any other State, and the same

privileges of trade and commerce as its inhabitants;--secondly, that

fugitives from justice charged with certain enumerated crimes, and

escaping from one State into another, should be given up, on demand of

the executive of the State from which they had escaped;--and thirdly,

that full faith and credit should be given in each State to the

records, acts, and judicial proceedings of the courts and magistrates

of every other State.

The Confederation, however, was a "firm league of friendship with each

other," entered into by separate States, and the object of the

provisions above cited was "the better to secure and perpetuate mutual

friendship and intercourse among the people" of those States. One of

the purposes of the Constitution, on the other hand, was "to form a

more perfect Union"; and we are therefore to expect to find its

framers enlarging and increasing the scope of these provisions, and

giving to them greater precision and vigor. We shall see, also, that

they made a very important addition to their number.

The first thing that was done was to make the language of the

Confederation respecting the privileges of general citizenship

somewhat more precise. The Articles of Confederation had made "the

free _inhabitants_ of each State," with certain exceptions, entitled

to the privileges and immunities of "free _citizens_ in the several

States."[359] It is probable that these two expressions were intended

to be used in the same sense, and that by "free inhabitants" of a

State was meant its "free citizens." The framers of the Constitution

substituted the latter expression for the former, and thus designated

more accurately the persons who are to enjoy the privileges and

immunities of free citizens in other States besides their own.

In the next place, while the Articles of Confederation declared that

full faith should be given in each State to the acts, records, and

judicial proceedings of every other State, they neither prescribed the

mode in which the proof was to be made, nor the effect when it had

been made. The committee of detail, in preparing the first draft of

the Constitution, merely adopted the naked declaration of the

articles. The Convention added to it the further provision, which

enabled Congress to prescribe by general laws the manner in which such

acts, records, and proceedings shall be proved, and the effect to be

given to them when proved.[360]

With respect to fugitives from justice, the Articles of Confederation

had specified persons "charged with treason, felony, or other high

misdemeanor in any State," as those who were to be given up by the

States to each other. For the purpose of avoiding the ambiguity of

this language, the provision was made to embrace all other crimes, as

well as treason and felony.[361]

Besides correcting and enlarging these provisions, the framers of the

Constitution introduced into the system of the Union a special

feature, which, in the relations _of the States to each other_, was

then entirely novel, although not without precedent. I refer, of

course, to the clause requiring the extradition of "fugitives from

service," who have escaped from one State into another.

In describing the compromises of the Constitution relating to slavery,

I have not placed this provision among them, because it was not a part

of the arrangement by which certain powers were conceded to the Union

by one class of States, in consideration of certain concessions made

by another class. It is a provision standing by itself, in respect to

its origin, about which there is some popular misapprehension. Its

history is as follows.

In many of the discussions that had taken place, in preparing the

outline of the government that was sent to the committee of detail, a

good deal of jealousy had been felt and expressed by some of the

Southern members, not only with regard to the relative weight of their

States in the representative system, but also with respect to the

security of their slave property. Slavery, although it had existed in

all of the States, and although there still remained in all of them

excepting Massachusetts some persons of the African race still held in

that condition, was likely soon to disappear from the States of New

Hampshire, Rhode Island, Connecticut, New York, and Pennsylvania,

under changes that would be introduced by their constitutions or by

statutory provision. In the whole of New England, therefore, and in

nearly all of the Middle States excepting Maryland, if the principles

of the common law and of the law of nations were to be applied to such

cases, the relation of master and slave, existing under the law of

another State, could not be recognized, and there could be no means of

enforcing a return to the jurisdiction which gave to the master a

right to the custody and services of the slave. At the same time, it

was apparent that, in the five States of Maryland, Virginia, North

Carolina, South Carolina, and Georgia, slavery would not only be

likely to continue for a very long period of time, but that this form

of labor constituted, and would be likely long to constitute, a

necessary part of their social system. The theory on which the

previous Union had been framed, and on which the new Union now

intended to be consummated was expressly to be founded, was, that the

domestic institutions of the States were exclusively matters of State

jurisdiction. But if a relation between persons, existing by the law

of a particular State, was to be broken up by an escape into another

State, by reason of the fact that such a relation was unknown to or

prohibited by the law of the place to which the party had fled, it

was obvious that this theory of the Union would be of very little

practical value to the States in which such a relation was to exist,

and to be one of great importance. If the territory of every State in

which this relation was not to be recognized, were to be made an

asylum for fugitives, the right of the master to the services of the

slave would be wholly insecure.

It was in reference to this anticipated condition of things, that

General Pinckney of South Carolina, at the time when the principles

that were to be the basis of the Constitution were sent to the

committee of detail,[362] gave notice, that, unless some provision

should be inserted in their report to prevent this consequential

emancipation, he should vote against the Constitution. Considering the

position and influence of this gentleman, his declaration was

equivalent to a notice that, without such a provision, the

Constitution would not be accepted by the State which he represented.

Still, the committee of detail omitted to make any such special

provision in their report of a Constitution, and inserted only a

general article that the _citizens_ of each State should be entitled

to all the privileges and immunities of citizens in the several

States.[363] General Pinckney was not satisfied with this, and renewed

his demand for a provision "in favor of property in slaves."[364] But

the article was adopted, South Carolina voting against it, and the

vote of Georgia being divided.

As soon, however, as the next article was taken up, which required the

surrender of fugitives from justice escaping from one State into

another, the South Carolina members moved to require "fugitive slaves

and servants to be delivered up, like criminals."[365] Objection was

made, that this would require the executive of the State to do it at

the public expense,[366] and that there was no more propriety in the

public seizing and surrendering a slave or a servant, than a

horse.[367] The proposition was then withdrawn, in order that a

particular provision might be framed, apart from the article requiring

the surrender of fugitives from justice. That article was then adopted

without opposition.[368]

For a provision respecting fugitives from service, the movers had two

remarkable precedents to which they could resort, and which had

settled the correctness of the principle involved. Negro slavery, as

well as other forms of service, had existed in the New England

Colonies at a very early period. In 1643, the four Colonies of

Massachusetts Bay, Plymouth, Connecticut, and New Haven had formed a

confederation, in which, among other things, they had mutually

stipulated with each other for the restoration of runaway "servants";

and there is indubitable evidence, that African slaves, as well as

other persons in servitude, were included in this provision.[369]

The other precedent was found in the Ordinance which had just been

adopted by Congress for the settlement and government of the Territory

northwest of the river Ohio; in which, when legislating for the

perpetual exclusion of "slavery or involuntary servitude," a similar

provision was made for the surrender of persons escaping into the

Territory, "from whom labor or service is lawfully claimed in any one

of the original States."

In making this provision, the early colonists of New England, and the

Congress of the Confederation, had acted upon a principle directly

opposite to the objection that was raised in the formation of the

Constitution of the United States. When it was said in the Convention,

that the public authority ought no more to interfere and surrender a

fugitive slave or servant than a horse, it was forgotten that, by the

principles of the common law and the comity of nations, not only is

property in movable things recognized by civilized states, but a

remedy is afforded for restitution. But in the case of a fugitive

person, from whom, by the law of the community from which he escapes,

service is due to another, the right to the service is not recognized

by the common law or the law of nations, and no means exist of

enforcing the duties of the relation. If the case is to be met at all,

therefore, it can only be by a special provision, in the nature of a

treaty, which will so far admit the relation and the claim of service,

as to make them the foundation of a right to restore the individual to

the jurisdiction of that law which recognizes and enforces its duties.

This was precisely what was done by the New England Confederation of

1643, and the Ordinance of 1787; and it was what was now proposed to

be done by the Constitution of the United States. It was regarded at

the time by the Southern States as absolutely necessary to secure to

them their right of exclusive control over the question of

emancipation,[370] and it was adopted in the Convention by unanimous

consent,[371] for the express purpose of protecting a right that would

otherwise have been without a satisfactory security. A proper

understanding of the grounds of this somewhat peculiar provision is

quite important.

The publicists of Christendom are universally agreed, that independent

nations are under no positive obligation to support the institutions,

or to enforce the municipal laws, of each other. So far does this

negative principle extend, that the general law of nations does not

even require the extradition of fugitive criminals, who have escaped

from one country into another. If compacts are made for this purpose,

they rest entirely upon comity, and upon those considerations of

public policy which make it expedient to expel from our own borders

those who have violated the great laws on which the welfare of society

depends; and such compacts are usually limited to those offences which

imply great moral as well as civil guilt. The general rule is, that a

nation is not obliged to surrender those who have taken sanctuary in

its dominions. At the same time, every political state has an

undoubted right to forbid the entry into its territories of any person

whose presence may injure its welfare or thwart its policy. No

foreigner, whether he comes as a fugitive escaping from the violated

laws of another country, or comes for the innocent purposes of travel

or residence, can demand a sanctuary as a matter of right. Whether he

is to remain, or not to remain, depends entirely upon the discretion

of the state to which he has resorted;--a discretion that is regulated

by a general principle, among Christian nations, while at the same

time the general principle is subject to such exceptions as the

national interest may require to be established.

Slavery, or involuntary servitude, being considered by public law as

contrary to natural right, and being a relation that depends wholly on

municipal law, falls entirely within the principle which relieves

independent nations of the obligation to support or to enforce each

other's laws. It has not, therefore, been customary for states which

have no peculiar connection, to surrender fugitives from that

relation, or to do anything to enforce its duties. But such fugitives

stand upon a precise equality with all other strangers who seek to

enter a society of which they are not members. If the welfare of the

society demands their exclusion, or if it may be promoted by a

stipulation that they shall be taken back to the place where their

service is lawfully due, the right to exclude or to surrender them is

perfect; for every political society has the moral power, and is under

a moral obligation, to provide for its own welfare. If such

stipulations have not usually been made among independent nations,

their absence may prove that the public interest has not required

them, but it does not prove the want of a right to make them.