Page images
PDF
EPUB

NOTE (A) TO CHAPTER XXX

CONSTITUTION OF THE CONFEDERATE STATES, 1861-1865

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 two-thirds 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, fourth, seventh, and eighth. The second was a very slight approximation towards the Cabinet system of England.'

1 A singular combination of the Presidential with the Cabinet system may be found in the Constitution of the Hawaiian kingdom, promulgated 7th July, 1887, which lasted till the islands were annexed to the United States in 1898. Framed under the influence of American traditions, it kept the Cabinet, which consisted of four ministers, out of the legislature, but having an irresponsible hereditary monarch, it was obliged to give the legislature the power of dismissing them by a vote of want of confidence. The legislature consisted of two sets of elective members, Nobles (unpaid), and Representatives (paid), who sat and voted together. Two successive legislatures could alter the Constitution by certain prescribed majorities: the Constitution was therefore a rigid one.

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 Cyclopedia of Political Science, Article Confederate States.")

[ocr errors]

66

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).' 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 so-called "Cabinet system of England, i.e. the Ministry sit in Parliament, and hold office at the pleasure of the House of Commons. The GovernorGeneral 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 87 persons, nominated for life by the GovernorGeneral, i.e. the Ministry. The House of Commons has at present 221 members, who are elected for five years. Both senators and members receive salaries. The Senate has little power or influence. The Governor-General 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 nine in number, has a legislature of its own, which, however, consists in Ontario, British Columbia, Manitoba, and New Brunswick of one House only, and a Lieutenant-Governor, appointed by the Dominion Government, 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, on the advice of his ministers, acts of a Provincial legislature, and sometimes (though rarely) exerts it, especially when a legislature is deemed to have exceeded its constitutional competence.

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

In each of the Provinces there is a responsible Ministry, working on the Cabinet system of England, the Lieutenant-Governor representing the Crown and acting as a sort of constitutional sovereign.

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 States, Congress has only the powers actually granted to it, the State legislatures retaining al 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 (§§ Ji-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 small convention in Canada, and enacted en bloc by the British Parliament. There exists no power of amending the Provinicial constitutions by popular vote similar to that which the people of the several States exercise in the United States.

As to the Constitution of the Commonwealth of Australia, drafted in Australia and enacted by the British Parliament in 1900, the reader may refer to the author's Studies in History and Jurisprudence, where it is described and commented on. The Constitution of the South African Union, enacted in 1909 by the British Parliament at the request of a Convention held in South Africa, is more unitary in its character than are those of Canada and Australia.

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 European discussions, that it seems proper to give a short account of it, taken from an authoritative source, an address by the late Mr. Justice Miller (then 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.

66

The opinion has been of late years much criticised, 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 prevent the States from repealing, abrogating, or avoiding by legislation contracts fairly entered into with other parties.

"This decision has stood from the day it was made to the present hour as a great bulwark against popular effort through State legislation to evade the payment of just debts, the performance of obligatory contracts, and the general repudiation of the rights of creditors."

As here intimated, the broad doctrine laid down in this case has been of late years considerably qualified and restricted. It has also become the practice for States making contracts by grants to which the principle of this decision could apply, to reserve power to vary or annul them, so as to leave the hands of the State free.

ARTICLES OF CONFEDERATION, 1781-1788

Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia.

ARTICLE I. The style of this confederacy shall be, "The United States of America."

ART. II. Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States in Congress assembled.

ART. III. The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.

ART. IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions, as the inhabitants thereof respectively; provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State of which the owner is an inhabitant; provided, also, that no imposition, duties, or restriction, shall be laid by any State on the property of the United States, or either of them.

If any person guilty of, or charged with, treason, felony, or other high misdemeanour in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the governor or executive power of the State from which he fled, be delivered up, and removed to the State having jurisdiction of his offence.

Full faith and credit shall be given, in each of these States, to the records, acts, and judicial proceedings of the courts and magistrates of every other State.

ART. V. For the more convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislature of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.

No State shall be represented in Congress by less than two, nor by more than seven members; and no person shall be capable of being a delegate for more than three years, in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the

« PreviousContinue »