done; they have in a few instances secured the individual citizen, judicially, in his natural right to life, liberty, or property; they continue to be a standing moral restraint upon the legislative and executive branches of the government; and they form a noble decalogue of great principles to be kept before the eyes of all American citizens; but, nevertheless, the judicial records of the century show that the government which the framers of the Constitution established would have moved on just as it has done, if these ten amendments had never been proposed. The conscience and intelligence of the country have been the real safeguards of the citizen against injustice and oppression.

The Eleventh Amendment was caused by the extreme ground taken by the early supreme court in Chisholm v. Georgia (2 Dall., R. 419), and the incipient rebellion of that State. Its purpose was to overrule that decision and to exempt a State from suit by a citizen. If Marshall had been upon the bench the decision would never have been made; and, singularly, it was overruled by the sanie court a hundred years afterward (Hans v. Louisiana, 134 U. S. R. 1). The Thirteenth, Fourteenth, and Fifteenth Amendments grew out of the Civil War. They abolished slavery; they impose restraints upon State governments; they confer on some persons constitutional rights; they guarantee certain rights, privileges, and immunities to citizens and persons; and they contain some provisions relating to representation in Congress. Much litigation has been caused by them; some statutes have been held constitutional and some unconstitutional; a larger proportion of representation has fallen to the Southern States; the guaranty given to all citizens of the right to vote without regard to race, color, or previous condition of servitude" is not absolutely effective, and the government of the United States moves on precisely as it did before.

It has been said herein that from the point of view of the framers of the Constitution their work has been changed in only one trifling particular. That change relates to the election of President, and was effected by the Twelfth Amendment. Under the Constitution as it originally stood each elector voted for two persons for President. He who should have the greatest number of votes would become President; he who might come next would be Vice-President. Under this provision, Mr. Lincoln, in 1861, would have become President, and Mr. Seward Vice-President. That is to say, the Republican electors, following the direction of their party, as expressed by the national convention, would have cast all their votes for Mr. Lincoln, and all but one for Mr. Seward. The purpose of the framers was a wise one: to secure for the country the two strongest statesmen of the party constituting for the time being the majority of the people, to fill the offices of President and Vice-President. No better plan could have been devised for obtaining a strong executive. We see a weak and modified application of the principle in national conventions when the defeated "wing of the party" is placated by being allowed to designate the candidate for Vice-President. But in 1801 there had been a tie, whereby the electors had failed to elect, and the election had gone into the House. If it had not been for that mishap, the Twelfth Amendment would not now exist;

and if the original system had survived until the time of rapid communication by railroad and telegraph and better party organization, it is safe to say that it would now be in unquestioned operation. Political conventions would long ago have adopted its leading principle, and the struggle would have been as to which of the two strongest candidates should be first or second upon the ticket. The system would have given greater dignity to the office of Vice-President, and would have brought the possible importance of that office always before the eyes of the citizen. But whether we think well or ill of the original method, one thing is certain, that the only change made by the Twelfth Amendment is a trivial one of administrative detail. After all the changes this country has passed through in the last hundred years changes in civilization, of territory, of population, of ideas, education, and public convictions, and individual lifechanges such as the world has never witnessed in one country or in one century, the only change made in the Constitution has been the paltry one of having the electoral vote cast in one form instead of in another.

The unwritten åmendment of the Constitution, as it has been called, also relates to the selection of the President. It is said by some of the commentators, and indeed it is now generally believed, that the electoral colleges were intended to be "deliberative bodies." In one sense this is true in the legal sense. The electors are not ministerial or administrative officers; they do not perform a specific work in a way determined by higher official authority; in legal contemplation the responsibility of their action rests upon themselves. But the framers of the Constitution never supposed that the electors would disregard the political pledges upon which they were chosen, or that the American people, either directly or through their State legislatures, would blindly choose electors to evolve a President out of their inner consciousness. On the contrary, they contemplated the successful candidates receiving the votes of "a majority of the whole number of electors," and they required the electors to vote "in their respective States," and to vote on the same day. If they had framed a provision requiring all of the electors to convene at the seat of the government in one body, and there in their own there would be good reason for saying that way and time proceed to choose a President, actual deliberation was intended; but they did not give to the electors one single power of attribute by virtue of which they could deliber

ate.

That very thing was attempted and the attempt failed. The question before the convention was, in effect: "Where shall the deliberative power to choose the President be vested when the formal casting and counting of the electoral vote fails to elect?» The answering propositions were, "In the Senate," or "In the House of Representatives." Then Spaight, of North Carolina, said that "he would prefer their [the electors] meeting altogether [all together] and deciding finally"; and he moved "that the electors meet at the seat of the general government"; and all of the States except North Carolina voted against it. The evidence is therefore both negative and positive-the convention did not invest the electors with the

necessary powers and means for deliberation, and positively refused to do so; and refusal is conclusive of non-intent.

The idea that it was ever intended that the electors should nominate the candidate for whom they themselves should vote is a myth which has been unthinkingly reiterated by most eminent writers, but which does not rest upon a single fact. Nothing perplexed the convention more than the subject of the executive. Plan after plan was weighed and found wanting. The electoral system was late in coming to the front, and was the solvent of many difficulties. Hamilton early foresaw the inevtable, and proposed that "the selection be made by electors chosen by the people." Madison, later, said that the option before the convention "lay between an appointment by electors chosen by the people and an immediate appointment by the people"; and he at the same time said that "the electors would be chosen for the occasion, would meet at once, and proceed immediately to an appointment." It was as well understood then as it is now that they would but register the decree of the political power which appointed them. The internal evidence of intent is even more conclusive. He who supposes that the framers intended that thirteen different bodies should convene in thirteen different places at one time for one object and for one day, and that object the selection of the executive of a nation, confesses a most superficial knowledge of the greatest constructive statesmen of their century and of the great work which they deliberately planned and built. And what better could the framers of the Constitution have done? Wilson, who proposed "an election by the people," was "almost unwilling to declare the mode which he wished to take place, being apprehensive that it might appear chimerical." Gerry, "who liked the principle." "thought the community not yet ripe"; he "was for waiting till the people should feel more the necessity of it." Gouverneur Morris admitted "that difficulties attended this mode," but thought that they would be "found superable." Madison liked an election by the people best, but acknowledged "the disadvantage this would throw on the smaller States." Ellsworth declared "the objection drawn from the different sizes of the States unanswerable."

It has been a fashion of late to speak of the electoral system as curious machinery which may give rise to serious complications; but viewed amid the difficulties and conditions and limitations of 1787, there is no stroke of practical statesmanship in the Constitution more wise and ingenious. The choosing of candidates soon drifted into Congress; with the coming of the steamboat and the railroad it passed from the congressional caucus to national conventions; and yet, notwithstanding these radical changes of usage, the expansion of territory, the multiplication of States, and the unscrupulousness of political partisanship, there have been no more mishaps than are incident to any system of human device.

To foretell the future of the Constitution is to foretell the future of the American people. They will change before it is changed. As with Washington and Lincoln, the more we know of them the better they appear; so of the Constitution, the more we contemplate its trials the better it appears adapted to our national

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needs. With the growth of knowledge there has been a growth of reverence. The people will experiment with State constitutions and tear them up and experiment again, but when it comes to the Constitution - the great Constitution there is a sturdy sentiment of "hands off," and that sentiment is incomparably stronger now than it was at the beginning of the century. Judicial construction has moved backward rather than forward, and where Marshall left it it stands, substantially, to-day.

The amendatory provision of the Constitution is an unbarred door which may be opened at any time. It was wise and prudent of the framers to leave it thus unlocked. But he who tries to swing open that door will find two things of which he did not reckon: first, a vis inertia in the ignorance and indifference of congressmen in their doubts whether the amendments will be popular-in their absorption in lesser things; and, second, that there is always some one on the other side pressing back the door.

Long

as

At this time there is an amendment pending to have senators elected directly by the people. It is a popular amendment, and yet is absolutely needless. The men who framed the Constitution constructed it of general principles, and left it flexible for administrative details. ago, Abraham Lincoln and Stephen A. Douglas were senatorial candidates, and were directly candidates before the people of Illinois as Mr. Gladstone and Lord Beaconsfield ever were before the people of England; and the legislature of Illinois carried into effect the public will. During the past year the people of North Carolina have nominated a candidate for senator by what is termed a "direct primary," and the legislature of North Carolina will give effect to their will. When the people of the United States find that it is easier to instruct the delegates they send to State conventions to proceed and nominate a candidate for United States senator than to obtain an amendment to the Constitution, the election of senators by the people will in practical effect take place.

CHARLES C. NOTT,

Chief Justice Court of Claims.

Constitution of the United States, the governing instrument of the United States or America, adopted in 1787, when it took the place of the Articles of Confederation. (For details of its adoption see CONSTITUTION, FRAMING OF THE.) Political discussion of the time played a much greater part in the compromises of this instrument than its provisions in turn exerted on political history in the following period, which to a surprising degree may be attached to only two clauses of the instrument and to these two simply because of their vagueness, and their mutually contradictory nature. Section 8 (18) in defining the powers of Congress adds the blanket provision of power, "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." The second historic clause occurs in the Amendments, where Article X reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The

enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

3 Every order, resolution, or vote to which the concurrence of the Senate and House of Representa tives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

SECTION 8. 1 The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

2 To borrow money on the credit of the United States;

3 To regulate commerce with foreign nations, and among the several States, and with the Indian tribes; 4 To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

5 To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and

measures;

6 To provide for the punishment of counterfeiting the securities and current coin of the United States; 7 To establish post offices and post roads;

8 To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

9 To constitute tribunals inferior to the Supreme Court;

10 To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

11 To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

12 To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

13 To provide and maintain a navy;

14 To make rules for the government and regulation of the land and naval forces;

15 To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions;

16 To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

17 To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings; and

18 To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

SECTION 9. I The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each

person.

2 The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

3 No bill of attainder or ex post facto law shall be passed.

4 No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.

5 No tax or duty shall be laid on articles exported from any State.

6 No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another: nor shall vessels bound to, or from, one State be obliged to enter, clear, or pay duties in another.

7 No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.

8 No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign State.

SECTION 10. I No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

2 No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws: and the net produce of all duties and imposts laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.

3 No State shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

ARTICLE II

SECTION 1. 1 The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows

2 Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the State may be entitled in the Congress: but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

The electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the president of the Senate. The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said house shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice President.

3 The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

4 No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.