III. The governing authorities of the university are created partly by the direct action of its members as graduates, partly by that of the colleges as communities. So in America Congress is created partly by the citizens as citizens, partly by the States as communities. Before the reforms of 1854 the part played by the colleges was much greater than it is now, because the Council, which is a sort of Upper House of the university legislature, consisted entirely of heads of colleges.

IV. The university has very little authority over the colleges as corporations, and indeed scarcely comes in contact with them all. Under a recent statute they are obliged to make certain contributions to the university, and to send a copy of their accounts to a university office. But they are self-governing; the university cannot interfere with their internal management, nor with the exercise of their jurisdiction over their members, which is their own and not delegated by it. So the States exercise an original and not a delegated authority over their citizens, and cannot be controlled by the National government in respect of all those numerous matters as to which the Constitution leaves them free.

NOTE (A) TO CHAPTER XXX

CONSTITUTION OF THE CONFEDERATE STATES, 1861-65

THE Constitution adopted 11th March 1861 by the Slave States which seceded from the Union and formed the short-lived Southern Confederacy, was a reproduction of the Federal Constitution of 1788-89, with certain variations, interesting because they show the points in which the States' Rights party thought the Federal Constitution defective as inadequately safeguarding the rights of the several States, and because they embody certain other changes which have often been advocated as likely to improve the working of that instrument.

The most important of these variations are the following:

Art. i. § 2. A provision is inserted permitting the impeachment of a Federal officer acting within the limits of any State by a vote of twothirds of the legislature thereof.

Art. i. § 6. There is added: "Congress may by law grant to the principal officer in each of the executive departments, a seat upon the

floor of either House, with the privilege of discussing any measure appertaining to his department."

Art. i. § 7. The President is permitted to veto any particular item or items in an appropriation bill.

Art. i. § 8. The imposition of protective duties and the granting of bounties on industry are forbidden, and the granting of money for internal improvements is strictly limited.

Art. i: § 9. Congress is forbidden to appropriate money from the Treasury, except by a vote of two-thirds of both Houses, unless it be asked by the head of a department and submitted by the President, or be for the payment of its own expenses, or of claims against the Confederacy declared by a judicial tribunal to be just.

Art. ii. § 1. The President and Vice-President are to be elected for six years, and the President is not to be re-eligible.

Art. ii. § 2. The President is given power to remove the highest officials at his pleasure, and others for good cause, reporting the removals to the Senate.

Art. v. The process for amending the Constitution is to be by a Convention of all the States, followed by the ratification of two-thirds of the States.

Of these changes, the third and fifth were obvious improvements; and much may be said in favour of the second and eighth. The second was a slight approximation towards the Cabinet system of England.1

I omit the important changes relating to slavery, which was fully protected, because these have only a historical interest.

The working of the Constitution of the Confederate States cannot be fairly judged, because it was conducted under the exigencies of a war, which necessarily gave it a despotic turn. The executive practically got its way. Congress usually sat in secret and "did little beyond register laws prepared by the executive, and debate resolutions for the vigorous conduct of the war. Outside of the ordinary powers conferred by the legislature, the war powers openly or practically exercised by the executive were more sweeping and general than those assumed by President Lincoln."-Alexander Johnston in American Cyclopaedia of Political Science, Art. "Confederate States."

1 A singular combination of the Presidential with the Cabinet system may be found in the present Constitution of the Hawaiian kingdom, promulgated 7th July 1887. Framed under the influence of American traditions, it keeps the Cabinet, which consists of four ministers, out of the legislature, but having an irresponsible hereditary monarch, it is obliged to give the legislature the power of dismissing them by a vote of want of confidence. The legislature consists of two sets of elective members, Nobles (unpaid), and Representatives (paid), who sit and vote together. Two successive legislatures can alter the Constitution by certain prescribed majorities: the Constitution is therefore a Rigid one.

NOTE (B) TO CHAPTER XXX

THE FEDERAL CONSTITUTION OF CANADA

THE Federal Constitution of the Dominion of Canada is contained in the British North America Act 1867, a statute of the British Parliament (30 Vict. c. 3).1 I note a few of the many points in which it deserves to be compared with that of the United States.

The Federal or Dominion Government is conducted on the socalled "Cabinet system" of England, i.e. the Ministry sit in Parliament, and hold office at the pleasure of the House of Commons. The Governor-General is in the position of an irresponsible and permanent executive similar to that of the Crown in Great Britain, acting on the advice of responsible ministers. He can dissolve Parliament. The Upper House or Senate is composed of 78 persons, nominated for life by the Governor-General, i.e. the Ministry. The House of Commons has at present 210 members, who are elected for five years. Both senators and members receive salaries. The Senate has very little power or influence. The GovernorGeneral has a veto but rarely exercises it, and may reserve a bill for the Queen's pleasure. The judges, not only of the Federal or Dominion Courts, but also of the Provinces, are appointed by the Crown, i.e. by the Dominion Ministry, and hold for good behaviour.

Each of the Provinces, at present seven in number, has a legislature of its own, which, however, consists in Ontario, British Columbia, and Manitoba, of one House only, and a LieutenantGovernor, with a right of veto on the acts of the legislature, which he seldom exercises. Members of the Dominion Parliament cannot sit in a Provincial legislature.

The Governor-General has a right of disallowing acts of a Provincial legislature, and sometimes exerts it, especially when a legislature is deemed to have exceeded its constitutional competence.

In each of the Provinces there is a responsible Ministry, working on the Cabinet system of England.

The distribution of matters within the competence of the Dominion Parliament and of the Provincial legislatures respectively, bears a general resemblance to that existing in the United States; but there is this remarkable distinction, that whereas in the United

1 See also 34 & 35 Vict. c. 28, and 49 & 50 Vict. c. 35.

States, Congress has only the powers actually granted to it, the State legislatures retaining all such powers as have not been taken from them, the Dominion Parliament has a general power of legislation, restricted only by the grant of certain specific and exclusive powers to the Provincial legislatures (§§ 91-95). Criminal law is reserved for the Dominion Parliament; and no province has the right to maintain a military force. Questions as to the constitutionality of a statute, whether of the Dominion Parliament or of a Provincial legislature, come before the courts in the ordinary way, and if appealed, before the Judicial Committee of the Privy Council in England.

The Constitution of the Dominion was never submitted to popular vote, and can be altered only by the British Parliament, except as regards certain points left to its own legislature. It was drafted by a sort of convention in Canada, and enacted en bloc by the British Parliament. There exists no power of amending the Provincial constitutions by popular vote similar to that which the peoples of the several States exercise in the United States.

NOTE TO CHAPTER XXXIII

THE DARTMOUTH COLLEGE CASE

THE famous case of Dartmouth College v. Woodward (4 Wheat. 518), decided in 1818, has been so often brought up in English discussions, that it seems proper to give a short account of it, taken from an authoritative source, an address by Mr. Justice Miller (senior justice, and one of the most eminent members, of the Supreme court), delivered before the University of Michigan, June 1887.

"It may well be doubted whether any decision ever delivered by any court has had such a pervading operation and influence in controlling legislation as this. It is founded upon the clause of the Constitution (Art. i. § 10) which declares that no State shall make any law impairing the obligation of contracts.

"Dartmouth College existed as a corporation under a charter granted by the British Crown to its trustees in New Hampshire, in the year 1769. This charter conferred upon them the entire governing power of the college, and among other powers that of

filling up all vacancies occurring in their own body, and of removing and appointing tutors. It also declared that the number of trustees should for ever consist of twelve and no more.

"After the Revolution, the legislature of New Hampshire passed a law to amend the charter, to improve and enlarge the corporation. It increased the number of trustees to twenty-one, gave the appointment of the additional members to the executive of the State, and created a board of overseers to consist of twenty-five persons, of whom twenty-one were also to be appointed by the executive of New Hampshire. These overseers had power to inspect and control the most important acts of the trustees.

"The Supreme court, reversing the decision of the Superior court of New Hampshire, held that the original charter constituted a contract between the Crown, in whom the power was then vested, and the trustees of the college, which was impaired by the act of the legislature above referred to. The opinion, to which there was but one dissent, establishes the doctrine that the act of a government, whether it be by a charter of the legislature or of the Crown, which creates a corporation, is a contract between the state and the corporation, and that all the essential franchises, powers, and benefits conferred upon the corporation by the charter become, when accepted by it, contracts within the meaning of the clause of the Constitution referred to.

"The opinion has been of late years much criticized, as including with the class of contracts whose foundation is in the legislative action of the States, many which were not properly intended to be so included by the framers of the Constitution, and it is undoubtedly true that the Supreme court itself has been compelled of late years to insist in this class of cases upon the existence of an actual contract by the state with the corporation, when relief is sought against subsequent legislation.

"The main feature of the case, namely, that a State can make a contract by legislation, as well as in any other way, and that in no such case shall a subsequent act of the legislature interpose any effectual barrier to its enforcement, where it is enforceable in the ordinary courts of justice, has remained. The result of this principle has been to make void innumerable acts of State legislatures, intended in times of disastrous financial depression and suffering to protect the people from the hardships of a rigid and prompt enforcement of the law in regard to their contracts, and to