I.

PRELIMINARY TOPICS.

CHAPTER I.

CONSTITUTIONAL GOVERNMENT.

THE reader will not desire to spend much time over a discussion of constitutional government. The leading aspects of that subject relate to the political and social progress of the country rather than to judicial history. This volume embraces the history of what has been accomplished by the courts. But courts derive their authority from constitutions, and have had an important duty in expounding and enforcing them. Some notice of the constitutional origin and powers of courts is a proper preliminary.

GENERAL NATURE OF A CONSTITUTION.

The art of administering government according to the directions of a written constitution may justly be claimed among the products of American thought and effort during the century. It is not understood by all that the system is so recent in development; and many who live and prosper under our government, and who trust and love it, are hardly aware of the strong contrast in fundamental principle between it and older European systems. It is of American origin and recent growth. Our fathers devised it without much aid from Old-World precedents. The adoption of written constitutions by Virginia and Pennsyl

vania in 1776, and by other states not long afterwards, upon recommendation of the Continental Congress, initiated this method, which has become essential to the general security, prosperity, and progress of our country. There were, indeed, according to generally accepted tradition, articles of compact framed and subscribed between members of the early companies of colonists, which embodied the germ of the plan; but the whole practical development of it, in existing forms, belongs to our first century.

It is true that instances of a written resolution adopted by a people for the guidance of the government existed before the era of the revolution, and that such have been known abroad as well as in this country. All such instruments were, however, very limited in scope as compared with the "constitutions" used at the present day. And they-the European ones especially-embody a different principle from that of a constitution. They do not purport to create and organize a government; but, assuming a government as already existing, they seek to impose restrictions upon its action. Take Magna Charta as an example of a state-paper popularly supposed to be of the nature of a constitution. There was a government already in full sway, of traditional origin; claimed to be founded upon conquest, or divine or hereditary right; administered by an executive power transferred by descent; and taking little from the people except obedience and supplies. The barons complained of the usurpations and excesses of the crown. Complaints rose to resistance, and resistance to conquest. The crown was compelled to give pledges to administer justice more impartially, respect the liberty of the subject, reduce taxation, and refrain from various abuses. These restrictions, imposed upon a tyrannical government by the people, form Magna Charta. Now this principle is just the reverse of a constitution as we in America understand that term. It signifies an instrument far more fundamental than any of the state-papers of past centuries. Our idea is that there is no di

vine or hereditary right, but that all the powers of government, all the authority which society can rightly exercise towards individuals, are originally vested in the masses of the people; and that the people meet together (by their delegates) to organize a government, and then freely decide what officers they will have to act for them in making and administering laws, and what the powers of those officers shall be. These written directions from the people, declaring what their officers may do and what they may not do, form the constitution. A constitution is a grant of existence and powers from a people to a government. A charter is a grant of privileges or securities from a government to subjects. The idea of constitutional government, in its practical development, is modern and American.

The course of jurisprudence through the past century has shown that it is possible, and, with the short, though severe, exception of the civil war, that it is not difficult, for an intelligent, conscientious, self-controlled community, who realize that the will of the people is the source of power, to create and administer government by these written constitutions. It has been practicable to have these writings framed. The thirteen colonies, in obedience to the suggestions of their Congress, and notwithstanding the embarrassments and discord of the period, severally adopted constitutions at a very early day; and from time to time since, as new communities in the territories have grown to sufficient numbers, they have been prompt to ask an enabling act from Congress, and have readily given the time and attention needed for assembling a convention of delegates to prepare a constitution, and for holding a popular election to enact it. It has been practicable to have these writings expounded. The judiciary created by a constitution sits clothed with power to explain whatever doubtful provisions may be found therein, and to test the acts of the Legislature by the constitutional standard; and these decisions have been readily accepted. It has been practicable to secure obedience. Throughout the land

a constant succession of elections has been held pursuant to the directions of the constitution; the defeated candidates have retired cheerfully; the successful ones have assumed the powers, privileges, and duties prescribed by the written organic law, have administered them through the defined term, and have obediently relinquished them at its close, to constitutionally elected successors. It has been practicable to have these constitutions amended. They do not become rigid, iron-bound shrouds stifling the development of institutions, but contain a germ and a stimulus of growth such as the future may demand.

STATE AND NATIONAL ORGANIZATIONS.

The character of the somewhat complex system of government which has become established over the United States has been the subject of much discussion among political writers and theorists. For, while the duties of the various members and officers of government are well described in the constitutions, those instruments give very little theoretic explanation of the nature of the Union intended to be formed. Many theories have been propounded; they can be generalized in three types. Brief views will be given of these three leading conceptions of American government; a volume might be written in explanation of each.

At one extreme stands what has been called the State Rights" theory, which presents the constitution as a species of treaty or compact between the State governments. According to this view, the movement for independence was a movement to make the colonies independent States. To accomplish this purpose, the colonies united in a common effort, the chief instrument of which was the Continental Congress, which is to be deemed a temporary alliance of neighboring governments against a common enemy, and the success of which effort made the States sovereign and independent. Desiring to organize a mode of securing common interests, they, the State governments, formed

an alliance or compact for that purpose, which was the old Confederation. Finding this compact inefficient, the States rescinded it and formed another, more intimate and vigorous, which is the constitution; and this likewise is a compact between the States -of thirteen States at early date, but since accepted and assumed by others which have sprung into existence by political acts of the inhabitants of new territories.

At the other extreme stands a theory that the Union is the original government, the earlier of the two, and that the State governments have derived their existence from it, or by its authority and protection. Upon this view, the colonies, before they attained existence as States, being desirous to achieve independence, formed a Union under the Continental Congress, which, indeed, was not very formally organized, and was incomplete and inefficient as to many subjects, but yet was a real, national government, by the military operations of which the colonies were set free from foreign control, and by the permission of which, after they were free, State governments were organized for the exercise of such powers as were not vested in the Union. These governments, at the demand of the Union, conceded a more explicit statement of the powers and authority of the latter, in the old Articles of Confederation; and still later, by the constitution, surrendered to the national government those broad powers which it now wields. The Union, having given liberty and political existence to the thirteen States, and having acquired extensive territory and national jurisdiction beyond their limits, has authorized the settlement of that territory, and has from time to time organized the settlements into States: these are created by the Union, and come into existence subject to its proper national authority.

A medium view may be stated thus: that the colonial governments were not in any proper sense even the germs which ripened into the governments now existing, but were creations of foreign authority, and perished with the sundering of the