Documents of American history n296wz65n

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CROFTS AMERICAN HISTORY SERIES

DOCUMENTS of

AMERICAN HISTORY

DOCUMENTS of

AMERICAN HISTORY Edited by

HENRY STEELE COMMAGER

&

APPLETON-CENTURY-—CROFTS, INC.

CopyricHT © 1958 sy APPLETON-CENTURY-CROFTS, INC.

All rights reserved. This book, or parts thereof, must not be reproduced in any form without permission of the publisher. 662-30

Library of Congress Card Number: 58-5145

COPYRIGHT, 1934, 1940, 1943, BY F. S. CROFTS & COQ., INC. COPYRIGHT, 1948, 1949, BY APPLETON-CENTURY-CROFTS, INC. COPYRIGHT RENEWED 1962 BY HENRY STEELE COMMAGER

PRINTED IN THE UNITED STATES OF AMERICA

To

EVAN WHO LIKED THEM

FOREWORD BY THE GENERAL EDITOR Here are the fundamental sources of American history which all students of the subject read about, but for the most part, have not read; in this they share embarrassment with many of their teachers, well-read scholars though they be. It is reassuring, nevertheless, that such confessions are now made with shame, whereas our grandfathers, unless they were lawyers, would have quoted fifth-hand testimony with as clear a conscience as documents themselves. The literary historians in the mid-years of the nineteenth century cared little where they found material, so long as it molded well into a moving narrative. Joel T. Headley, one of the most popular American historical writers of his time, while secretary of state in Albany thought New York was wasting money in the elaborate publication of its colonial documents; and at the end of the century John Fiske could make a great reputation as an historian without much concern for original sources. But appreciation of their high importance and zeal to gather and present them in convenient form had appeared long before, even in young America. Hezekiah Niles had compiled his Principles and Acts of the Revolution in 1822 and between 1837 and 1853 Peter Force produced nine massive folios of American Archives, which, unfortunately, a stupid federal government refused to continue. The credit for establishing contemporary sources as materials for teaching must go chiefly to Albert Bushnell Hart, who nearly forty years ago began to publish, for classes from elementary school to college, books of source-extracts illustrating the history of the United States,—flavorous samples from diaries and pamphlets, satires and sermons, prose and poetry. Others in their compilations held more strictly to archival records. The present generation knows it does not know a fact until it has checked with the primary source. But inconvenience mocks at duty, and few there are who form the habit of consulting documents before they speak. Effective educational use of documents is practically impossible without a compilation.

It is not likely, for example, that a college library could afford space for more than one set of the United States Statutes at Large. Suppose a conscientious class of forty were told to examine the Civil Rights Act of April 9, 1866, before tomorrow morning; it is easy to Imagine what would happen to Volume XIV, and, since a book can be read by but one at a time, the disappointment of the thirty, at the least, who had to appear next day unprepared. Probably the library would contain no set of the Laws of Mississippi or of Louisiana and even the five or ten fortunate enough to have read the Act in question could have no first-hand knowledge of the state policies that brought it forth. With the present volume on his own table the student has not only the Act immediately before him in Document 252 but also six statutes of the Black Codes, in Documents 246 and 247, from which he can better understand it; he has in the brief editorial comment a clear idea of the setting of each and, all told, fourteen authors cited, from which, if time and disposition will permit, he may get the general background and detail. By such procedure he will acquire the habit of historical investigation, an objective miore important than the amassing of information to be poured back on examination day. The novelty in the present work is in its successful essay toward practical completeness. Naturally, the compiler would make no claim that he has included here every document of significance in the development of the United States, but he has certainly brought together a larger and perhaps a better balanced collection than any predecessor. Difficult it is to annotate such documents without erring on the side of spare obviousness or on that of wearisome pedantry. In his introductory notes Professor Commager has nicely stopped at the point where essential helpfulness is completed and has referred to special works for vii

Vill FOREWORD extended comment. The volume becomes, therefore, a bibliographical guide in addition to its other usefulness. These documents distil the spirit of the American people as understood by organized groups, parties, governmental bodies and responsible officials; in general they represent concerted and matured opinion or binding public action. These are not personal vagaries, interesting as those might be, but statements which have mirrored and directed the trend of our national growth. Without disparaging the infinitely various and voluminous testimony on which what is called social history must be predicated, the touchstone here has generally been the bearing of a document upon the transactions of politics. But the compiler knows full well that political forces do not rise alone in halls of legislation or of justice or in party conclaves; hence he properly includes such documents as Garrison’s manifesto in the Liberator and that of Tillman in the Charleston Courier, the Declaration of Purpose of the National Grange and the solemn pledge of the W. C. T. U. No one can foresee the ways in which these documents can be used, nor bracket them in logical relation so as to suit all users; Professor Commager has wisely chosen strict chronology as his principle of arrangement. This in itself is logical and exhibits the manysidedness of public life in any decade.

Commager’s Documents, we dare to prophesy, will be cited everywhere as a convenient form in which most basic sources of our political history may be consulted. In the college classroom, either as the foundation of a course or as supplementary reading, they will perform but one of many services. Everywhere that swift convenience is essential in historical inquiry this volume, we like to think, will many times repay its cost. Its wide-spread use, in its provision of the basic texts, will go far to dissolve the reputation of glib and careless volubility sometimes fixed upon our countrymen and supplant it with that of accuracy and security in historical statement. Nearly five hundred messages from the past, serious and well-considered, are here open to instruct us.

Drxon Ryan Fox Union College

PREFACE These documents are designed to illustrate the course of American history from the Age of Discovery to the present. Exigencies of space and of circumstance have required that the term document be interpreted in a very narrow sense. Properly speaking, almost everything of an original character is a document: letters, memoirs, ballads, folk-lore, poetry, fiction, newspaper reports and editorials, sermons and speeches, to say nothing of inscriptions, stamps, coins, buildings, painting and sculpture, and all the innumerable memorials which man has left in his effort to understand and organize his world. I have tried to limit my selection to documents of an official and quasi-official character, though I have been no more consistent in this than in other things. I have not included selections often, and mistakenly, referred to as “readings”; even partially to illuminate American history from letters, memoirs, travelers’ descriptions, etc. would require many volumes; this material, too, should be read in its entirety rather than in excerpt, and is readily available to students. What is presented here, then, is part of the official record, and students know that the official record is neither the whole record nor in every case the real record. I cannot say that I have been guided in my choice of material by any rigid principles of selection. The choice has been determined by the experience of the class-room, by personal interest, and by availability. I have attempted to include those documents with which students should be familiar, such as the Northwest Ordinance or Marbury v. Madison; those which are illustrative or typical, such as colonial charters or land laws; those which focussed upon themselves the attention of the country, such as the Missouri Compromise or the Lincoln-Douglas Debates; those which serve as a convenient point of departure for the study of some economic or political development, such as labor cases or party platforms; those which illuminate some phase of our social life, such as the constitution of the Brook Farm Association or the Mooney-Billings Report; those which have certain qualities of interest, eloquence or beauty, such as Lee’s Farewell to his Army or Holmes’ dissent in the Abrams Case.

No one can be more acutely conscious of the inadequacies of such a collection than is the editor. Students familiar with the sources of American history will find many omissions and will discover many episodes unilluminated. To most of these charges I can plead only the exigencies of space; to some I must confess personal idiosyncrasy and fallibility. Students will look in vain for Webster’s Reply to Hayne or Stephen’s Cornerstone speech, for Hamilton’s Report on Manufactures or the Federal Reserve Act, for the diplomatic correspondence on the X.Y.Z. affair or the Trent episode. These, and scores of similar selections, were omitted because I was not able to achieve a satisfactory condensation and did not feel that they could be included in extenso. While I have made efforts to find documents which would illustrate phases of our social and economic history, there are fewer of these

than is desirable. Such documents are hard to come by: spiritual forces do not readily

translate themselves into documents. I would have liked to have included Emerson’s Divinity School Address, Fitzhugh’s Pro-Slavery Argument, the platform of the American Economic Association; to have yielded to this temptation would have opened the flood-gates of miscellaneous source material. It cannot be pretended that presidential messages, supreme court decisions, or statutes, reveal much of the undercurrents of our social life. To discover these it would be necessary to go to church records, school reports, the minutes of fraternal orders, the records of labor organizations and agricultural societies, the records of probate courts, etc. American historians have been distressingly backward in the appreciation and publication of such material. These records therefore are not readily available, nor would a lifetime be sufficient to canvass them and take from them that which is typical. Neither the notes nor the bibliographies which accompany these documents pretend to be extensive. In the notes IJ have attempted to state only what is essential for an understand-

ing of the background of the document; the bibliographies are designed to indicate additional reading for the orientation of the document and additional bibliographical references. I have only occasionally included references to the rich deposits of material in IX

X PREFACE periodicals and the publications of learned societies: for these the student will have to go to specialized bibliographical guides and to the invaluable Writings on American History which Miss Griffin has compiled. The documents themselves have been taken from and collated with the sources indicated. No effort has been made to standardize spelling, capital-

ization or punctuation, or even to correct obvious errors in the originals: to have undertaken this, even granting its propriety, would have produced confusion. I have taken very few liberties with these documents. Omissions have been indicated by the customary ellipsis

sign, but I have omitted such phrases as “be it also enacted” and “done at the city of Washington, etc.” without any indication. I have in most instances abbreviated Article to . Art. and Section to Sec., and I have frequently substituted numbered dates for the lengthier form. Because of the possibility that a two-volume edition of the collection may be issued, it was thought best to begin a new pagination with the period since 1865: the Documents, however, have been numbered consecutively. I have no doubt that in the many processes of copying, collating, and printing, numerous errors have crept in; for these I beg the indulgence of the reader. I am under obligation to many people for codperation in the compilation of this volume. The officials of the libraries of New York University bore patiently with my demands. To

my colleagues in the Department of History, Mr. Cochran, Mr. Craven, Mr. Hoffman, Mr. Musser, and Mr. Wettereau, to Mr. Stein of the Department of Economics, Mr. Thach of the Department of Government, and Dean Sommer of the Law School of New York University, I am grateful for suggestions. Without the faithful and intelligent assistance of Miss Margaret Carroll this volume could never have been prepared. HENRY STEELE COMMAGER

PREFACE TO THE SIXTH EDITION Almost ten years have passed since the last edition of this book, and ten years of

mid-twentieth century are like a cycle of colonial history. It is doubtless an illusion that more happens today than two or three hundred years ago, it may be an illusion that what happens today is more important than what happened then, and it is certainly an illusion that it makes better reading. But one thing is indisputably true, that the written record today is both fuller and more verbose, than ever before. Only a fraction of the documents that submitted persuasive claims to admission could be included in this edition, and in most instances admission was denied not on grounds of merit but of space. Where in the fifth edition I found it possible to drop sixteen old and add nineteen new documents. this edition omits only eight old and adds no less than fifty-two new documents. As with the last edition the majority of documents fall into two categories, those addressed to the conduct of foreign relations, and judicial opinions, largely though not

exclusively on matters of civil liberties. This preponderance reflects, with substantial accuracy, the major issues of the last decade which have been in the realm of foreign affairs and, unhappily. of constitutional liberties and rights.

For assistance in the preparation of this edition J am indebted to Mr. Norton Garfinkle. HENRY STEELE COMMAGER

TABLE OF CONTENTS

poc, NO. PAGE VOLUME I

I. PRIVILEGES AND PREROGATIVES GRANTED TO COLUMBUS. April 30,1492 . . . . l

2. PAPAL BULL INTER CAFTERA,. May 4, 1493 . . . 2... wh teté«
.) «72 3. ADMINISTRATION OF JUSTICE ACT. May 20, 1774 . . . . . . 4). O73

4. QUEBEC ACT. Jume 22, 1774 . . . 2... 4

50. PENNSYLVANIA RESOLUTIONS ON BOSTON PORT ACT. June 20, 1774 . . . . 76 51. NEW YORK CITY RESOLUTIONS ON BOSTON PORT ACT. July 6, 1774 . . . . . 76 52. RESOLUTIONS OF ALBEMARLE COUNTY, VIRGINIA. July 26, 1774 . . . . . 77 53. VIRGINIA INSTRUCTIONS TO CONTINENTAL CONGRESS. August 1, 1774 . . . . 78

54. VIRGINIA NON-IMPORTATION AGREEMENT. August 1, 1774 . . . . . . . 80

55. GALLOWAY’S PLAN OF UNION. September 28, 1774 . . . . . . . . O81 56. DECLARATION AND RESOLVES OF FIRST CONTINENTAL CONGRESS. October 14, 1774 . 82

57. THE ASSOCIATION. October 20, 1774 . . . . . . 84 58. PETITION OF LONDON MERCHANTS FOR RECONCILIATION. January 23, 1775 . . 87 59. BATTLE OF LEXINGTON

1. AMERICAN ACCOUNT OF BATTLE OF LEXINGTON. April 26, 1775 . . . . 89 2. ENGLISH ACCOUNT OF BATTLE OF LEXINGTON. April 22, 1775 . . . . 90 60. ADDRESS OF CONTINENTAL CONGRESS TO INHABITANTS OF CANADA. May 29, 1775 91

61. DECLARATION OF CAUSES AND NECESSITY OF TAKING UP ARMS. July 6, 1775 . . 92

62. PROCLAMATION OF REBELLION. August 23, 1775 . . . . . . . 4). 95 63. INSTRUCTIONS FROM MALDEN, MASSACHUSETTS, FOR INDEPENDENCE. May 27, 1776 96

64. MECKLENBURG COUNTY RESOLUTIONS, May 31, 1776 . . . . . . .) .) 98

65. RESOLUTION FOR INDEPENDENCE. June 7, 1776 . . . . . . . . «. . 100 66. DECLARATION OF INDEPENDENCE. July 4, 1776 . . . . . . . . . ~~. 100

67. VIRGINIA BILL OF RIGHTS. June 12,1776 . . . . . . . 2 ee «108

1776 6 wk ke ek ewe «104

68. CONCORD TOWN MEETING DEMANDS A CONSTITUTIONAL CONVENTION. October 21,

69. TREATY OF ALLIANCE WITH FRANCE. February 6, 1778 . . . . . . . ~~. 105

70. MASSACHUSETTS BILL OF RIGHTS. 1780 . . . . . . . we eS «2107

71. QUOCK WALKER CASE. 1783 . . . . 2. 2 eee eee ee «CL

72. ARTICLES OF CONFEDERATION. March 1, 1781 . . . . . . . . . . 2111 73. COMMONWEALTH WV. CATON ETAL. 1782. . . 2.) . wee ets SCG

74, TREATY OF PEACE WITH GREAT BRITAIN. September 3, 1783 . . . . . . 117 75. RESOLUTION OF CONGRESS ON PUBLIC LANDS. October 10,1780 . . . . . . 119 76. VIRGINIA’S CESSION OF WESTERN LANDS. December 20,1783. . . . . . ~~ . 120 77. REPORT OF GOVERNMENT FOR WESTERN TERRITORY. April 23, 1784 . . . . . 121

78. LAND ORDINANCE OF 1785. May 20,1785. . . . . . . 2. 2 ee 123 79. MEMORIAL OF PRESBYTERY OF HANOVER COUNTY, VIRGINIA. October 24,1776 . . 124

80. VIRGINIA STATUTE OF RELIGIOUS LIBERTY. January 16, 1786 . . . . . . 125

81. SHAYS’S REBELLION. 1786 . . . . . 2. 6 we ee eee ee 126

82, NORTHWEST ORDINANCE. July 13, 1787 re 2;

83. ANNAPOLIS CONVENTION. September 14, 1786 . . . . . . . . . . 132 84, VIRGINIA PLAN OF UNION. May 29,1787 . . . . . . .« . 2 « «) . 134 85. PATERSON PLAN OF UNION. June 15, 1787 . . . . . . . «. ss) . 136 86. HAMILTON’S PLAN OF UNION. June 18,1787 . . . . . 2. . 2. «e137 87. CONSTITUTION OF THE UNITED STATES. September 17, 1787 . . . . . . 138

88. OBJECTIONS TO FEDERAL CONSTITUTION. 1787 . . «© «. .« «© «© «© «© « 149

89. BAYARD & WIFE UV. SINGLETON. 1797. . «we ee ee ee «50

90. WASHINGTON’S FIRST INAUGURAL ADDRESS. April 30,1789 . . . . . . . I51

91. JUDICIARY ACT OF 1789. September 24, 1789 . . «© . «© «© 2 we e153

92. VIRGINIA RESOLUTIONS ON ASSUMPTION. December 16, 1790 . . . . . . 155 93. HAMILTON’S OPINION ON CONSTITUTIONALITY OF BANK. February 23, 1791 . . 156 94. JEFFERSON’S OPINION ON CONSTITUTIONALITY OF BANK. February 15, 1791 . . 158

95. CHISHOLM v. GEORGIA. 1793. . 2. . 6 ee eee ew ee we 160

Doc. NO. PAGE

TABLE OF CONTENTS XI

96. PROCLAMATION OF NEUTRALITY. April 22, 1793 2. ©. 6 2 6 © 8 8 162 97. PROCLAMATION ON WHISKEY REBELLION. August 7, 1794 . . - + + + + 163

98. JAY TREATY. November 19, 1794 . ©. - © © 6 + 8 e 8 ef ts 165 99. PINCKNEY TREATY. October 27,1795 . «2 6 © 5 8 8 ee hs 168

100. WASHINGTON’S FAREWELL ADDRESS. September 17, 1796 . . . «© + + | 169 101. ALIEN AND SEDITION ACTS

1. THE NATURALIZATION ACT. June 18, 1798 . 2. «. 2 + © © © 6 175

2. THE ALIEN ACT. June 25,1798 ©. «© «6 6 6 ee ee es 176 3. THE ALIEN ENEMIES ACT. July 6,1798 . . 2. © 6+ © 5 © 2 © + 177 4. THE SEDITION ACT. July 14, 1798 . «© «© 6 ee 6 ee ees 177 102. KENTUCKY AND VIRGINIA RESOLUTIONS OF 1798

1. KENTUCKY RESOLUTIONS. November 16,1798 . . . «© «© «© «© + «+ 178 2. VIRGINIA RESOLUTIONS. December 24, 1798 . . «© «© «© «© «© «©: 182 103. KENTUCKY RESOLUTIONS OF 1799. February 22, 1799 . . .« «© «© «© «© 183 104. STATE REPLIES TO VIRGINIA AND KENTUCKY RESOLUTIONS

1. RHODE ISLAND TO VIRGINIA. February, 1799 . . . . «© «© « + « 184 27. NEW HAMPSHIRE RESOLUTION. June 15,1799 . . . . «© «© « = ~ 185

105. LAND act of 1800. May 10,1800 . . . . 2. / ew ee ee 185 106. JEFFERSON’S FIRST INAUGURAL ADDRESS. March 4, 1801 . . . «© + = 186

107. JEFFERSON ON THE IMPORTANCE OF NEW ORLEANS. April 18,1802 . . . . . 189

108. THE CESSION OF LOUISIANA. April 30, 1803 . . . . » . «© «© «© « «+ 190

109. MARBURY UV. MADISON. 1803... 2. ee ee eee ee 19

110. JEFFERSON’S MESSAGE ON BURR CONSPIRACY. January 22, 1807 . . . . . 195 111. ACT TO PROHIBIT IMPORTATION OF SLAVES. March 2, 1807 . . . . . . . 197 112. COMMERCIAL WARFARE

1. BERLIN DECREE. November 21, 1806 . . . . . « »© «© «© « « 199 2. BRITISH ORDER IN COUNCIL. January 7, 1807. . . . . . «© « « 200 3. BRITISH ORDER IN couNCcIL. November 11, 1807 . . . . . . « . 200

4. MILAN DECREE. December 17, 1807 . . . . . . . «© «© « « 201 5. EMBARGO ACT. December 22, 1807 . . . . 2. 6 ee wee 202 6. NON-INTERCOURSE ACT. March 1, 1809 . . . . . . 2 eee 2083 7, MACON’S BILL, NO. 2. May 11,1810 . . . . . . . « « «+ « « 204 8. THE RAMBOUILLET DECREE. March 23, 1810 . . . . . . . «. . 204

113. FLETCHER v. PECK.1810. . . 2. 0. eee ee ee ew 205 114. MADISON’S WAR MESSAGE. June 1, 1812 Ce eee 207 115. REPORT AND RESOLUTIONS OF HARTFORD CONVENTION. January 4, 1815 . . . 209

116. MADISON’S VETO OF BONUS BILL. March 3, 1817 . . . . . . . . . . 211 117. RUSH-BAGOT AGREEMENT. April 28,1818 . . . 2. 2. 2. ee ee ee 213

118. M’CULLOCH UV. MARYLAND. 1819. 2. 2... wee ee ee 21S 119. DARTMOUTH COLLEGE v. WOODWARD. 1819. . 2. 2... ew ee eee 220 120. FLORIDA TREATY. February 22, 1819 . . . . 2. 2. 2 wee eee 223 121. THE MISSOURI COMPROMISE

. |. THE TALLMADGE AMENDMENT. February 13, 1819 . . . . . . . 225 2. THE TAYLOR AMENDMENT. January 26, 1820 . . . . . . . . . 225 3. THE THOMAS AMENDMENT. February 17, 1820 . . . . . . . = . 225

4. MISSOURI ENABLING ACT. March 6, 1820 . . . . . . . . . . 226 5. CONSTITUTION OF MISSOURI. July 19, 1820 . . . . . . . . ) . 226

6. RESOLUTION FOR ADMISSION OF MISSOURI. March 2, 1821 . . . . = . 227

122. LAND LAW OF 1820. April 24,1820 . . . . . wee 227 123. COHENS VU. VIRGINIA. 1821 . . 2... eee ee ww 228 124. CHANCELLOR KENT ON UNIVERSAL SUFFRAGE. 1821 . . . . . . «© « « 232 125. MONROE’S VETO OF CUMBERLAND ROAD BILL. May 4, 1822 . . . . . . . 233 126. ENGLISH BACKGROUND OF MONROE DOCTRINE. August 20, 1823 . . . . . 234

127. MONROE DOCTRINE. December 2, 1823 . . . . . . . . . 235 128. TENNESSEE PROTEST AGAINST CAUCUS. 1823 . . . . . . . 1. . ) . 237

129. GIBBONS Vv. OGDEN. 1824. . 2... we ee 238 130. NATIONALISM OF PRESIDENT J. Q. ADAMS. December 6, 1825 . . . . . . 242

131. PANAMA CONGRESS. December 26, 1825 . . . . . . . 2. we ee 244

DOC. NO. PAGE

XIV TABLE OF CONTENTS

132. MARTIN v. MOTT. 1827. . 2. 2. . . ww. kk kk 246 133. MASSACHUSETTS HIGH SCHOOL LAW oF 1827... .. ..... 247

134. AMERICAN INSURANCE COMPANY v. CANTER. 1828. . . . . . ,. . 248 135. SOUTH CAROLINA PROTEST AGAINST TARIFF OF 1828. December 19,1828. . . . 249

136. CONSTITUTION OF A LYCEUM. 1829 . . . . . . . De, 251

137, CRAIG ET AL. v. MIssouRI. 1830. . . . . . a 28

138. JACKSON’S VETO OF MAYSVILLE ROAD BILL. May 27, 1830 . . . . . . . 253

139. MARCY ON THE SPOILS OF VICTORY. 1831 . . . . . . . . . . . 255

140. CHEROKEE NATION Uv. GEORGIA. 1831. 2. 2. 2. 1. wee 2

141. WORCESTER Vv. GEORGIA. 1832. ©. 2. 2. ww ww 258 142. JACKSON’S MESSAGE ON REMOVAL OF SOUTHERN INDIANS. December 7, 1835 . . 259 143. SOUTH CAROLINA ORDINANCE OF NULLIFICATION. November 24, 1832 . . . . 261 144. JACKSON’S PROCLAMATION TO PEOPLE OF SOUTH CAROLINA. December 10, 1832 . 262 145. SOUTH CAROLINA’S REPLY TO JACKSON’S PROCLAMATION. December 20, 1832 . . 268

146. NULLIFICATION OF FORCE BILL. March 18, 1833 . . . . . . . . . 269

1833.0. ww 274

147. JACKSON’S VETO OF THE BANK BILL. July 10,1832 . . . . . . .) .) , 270

148. REMOVAL OF THE PUBLIC DEPOSITS: JACKSON’S PAPER TO CABINET. September 18,

149. THE LIBERATOR. VOLUME I., NO. 1. January 11,1831 . . . . . 3. 3.) 0.) 277 150. THE AMERICAN ANTI-SLAVERY SOCIETY: CONSTITUTION AND DECLARATION OF SEN-

TIMENTS. December 4, 1833 . . . . . . Oe 278

151. SOUTH CAROLINA RESOLUTIONS ON ABOLITIONIST PROPAGANDA. December 16, 1835 281

152. TEXAS DECLARATION OF INDEPENDENCE. March 1, 1836 . . . . . . . 282

153. SPECIE CIRCULAR. July 11, 1836 . . . 2...) 8 283 154. JACKSON’S MESSAGE ON SPECIE CIRCULAR. December 5, 1836 . . . . . . 284

155. CHARLES RIVER BRIDGE UV. WARREN BRIDGE. 1837. . . . . . . wee 285

156. THE CAROLINE AFFAIR. January 8, 1838 . . . . . . 2). ee 287

157. PRE-EMPTION ACT OF 1841. September 4, 1841 . . . . . . .0 hh. 291

158. PRIGG Vv. COMMONWEALTH OF PENNSYLVANIA. 1842. . . . . . . 0). Oe 292 159. PEOPLE v. FISHER. 1835 . . . . . . a 295 160. COMMONWEALTH Vv. HUNT. 1842. . . . . . wee aw 296

161. WEBSTER-ASHBURTON TREATY. August 9, 1842 . . . . . . . .) 298

162. CONSTITUTION OF BROOK FARM ASSOCIATION. 1841 . . . . . . . . =» . 300

163. DOROTHEA DIX’S MEMORIAL TO LEGISLATURE OF MASSACHUSETTS. January, 1843 . 301

164. CLAY’S RALEIGH LETTER. April 17, 1844 . 2. . 2. . 0... 304 165. ANNEXATION OF TEXAS. March 1, 1845 . . . . . . hh. 306 166. TEXAS AND OREGON: EXTRACT FROM POLK’S INAUGURAL ADDRESS. March 4, 1845 . 307

167. POLK’S REASSERTION OF MONROE DOCTRINE. December 2, 1845 . . . . . 309 168. POLK’S MESSAGE ON WAR WITH MEXICO. May 11,1846 . . . . . . . = , 310

169. OREGON TREATY. June 15, 1846 . . . . . . . ea

170. INDEPENDENT TREASURY ACT. August 8, 1846 . . . . . . . . ..) 6.312 171. TREATY OF GUADALUPE HIDALGO. February 2, 1848 . . . . . . .).) . 313

172. SENECA FALLS DECLARATION AND RESOLUTIONS. July 19, 1848 . . . . . ) . 315 173. HORACE MANN ON EDUCATION AND NATIONAL WELFARE. 1848 . . . . .. . 317 174. COMPROMISE OF 1850.

1. CLAY’S RESOLUTIONS. January 29,1850 . . . . . . . . .) e319

2. TEXAS AND NEW MEXICO ACT. September 9, 1850 . . . . . . . =. 320

3. UTAH ACT. September 9, 1850 . . . . . . . ht 8322

4, FUGITIVE SLAVE ACT. September 18, 1850 . . . . . . . . .. . 321

1850 2. wk ek 8323

5. ACT ABOLISHING SLAVE TRADE IN DISTRICT OF COLUMBIA. September 20,

175. GEORGIA PLATFORM. 1850 . . . . . . ek ee 823

176. RESOLUTIONS OF NASHVILLE CONVENTION. June 10, 1850 . . . . . . . 324

177. CLAYTON-BULWER TREATY. April 19, 1850 . . . . . . . . 0. 326 178. TRIAL OF MRS. DOUGLAS FOR TEACHING COLORED CHILDREN TO READ. 1853 . . . 327

179. APPEAL OF THE INDEPENDENT DEMOCRATS. January 19, 1854 . . . . . = . 329

180. KANSAS-NEBRASKA ACT. May 30, 1854 . . . . . . . eee 331

181. OSTEND MANIFESTO. October 18, 1854 . 2. . 2. . 1 4 ee te ee 333

DOC. NO. PAGE

TABLE OF CONTENTS XV

182. MASSACHUSETTS PERSONAL LIBERTY ACT. May 21, 1855 . . . . «. © . 335

183. AMERICAN PARTY PLATFORM. 1856 . . . . eee ee eee SST 184. CONSTITUTION OF COMMITTEE OF VIGILANTES OF SAN FRANCISCO. May 15, 1856 . 338 185. DRED SCOTT ¥. SANDFORD. 1857). 2. 2 ee ee ee ee SSI 186. LINCOLN’S HOUSE DIVIDED SPEECH. June 17, 1858 . . . . 2. . «© « + 345 187. LINCOLN-DOUGLAS DEBATES

1. SECOND JOINT DEBATE. Freeport, August 27, 1858 . . . . . . . . 348 2. THIRD JOINT DEBATE. Jonesboro, September 15,1858 . . . . . . « 349 3, SEVENTH JOINT DEBATE. Alton, October 15, 1858 . . . . . « « « SSI

188. ABLEMAN v. BOOTH. 1859. . . . . eee ee we 358

189. JOHN BROWN’S LAST SPEECH. November 2, 1859 . . . . . . . . . $61

190. FLOYD COUNTY, GEORGIA, RESOLUTIONS ON SECESSION. 1860 . . . . . .« . 362 191. PLATFORM OF CONSTITUTIONAL UNION PARTY. May, 1860 . . . . . . = . $63

192. PLATFORM OF REPUBLICAN PARTY. May 16, 1860 . . . . . . . ~~ . 363 193. PLATFORM OF DEMOCRATIC PARTY. June 18, 1860 . . . . . . . « . 365 194. PLATFORM OF DEMOCRATIC (BRECKENRIDGE FACTION) PARTY. June, 1860 . . . 366

195. PRESIDENT BUCHANAN ON SECESSION. December 3, 1860 . . . . . . . 366 196. CRITTENDEN PEACE RESOLUTIONS. December 18, 1860 . . . . . . . . 369 197. MISSISSIPPI RESOLUTIONS ON SECESSION. November 30, 1860 . . . . . . 3/1 198. SOUTH CAROLINA ORDINANCE OF SECESSION. December 20, 1860 . . . . . 372 199. SOUTH CAROLINA DECLARATION OF CAUSES. December 24,1860 . . . . . . 372

6, 1861 2... 874

200. MAYOR WOOD’S RECOMMENDATION FOR SECESSION OF NEW YORK CITY. January

201. CONSTITUTION OF CONFEDERATE STATES OF AMERICA. March 11, 1861 . . . . 376

202. LINCOLN’S FIRST INAUGURAL ADDRESS. March 4, 1861 . . . . . . . . 385

203. DAVIS’S MESSAGE TO CONGRESS. April 29, 1861 . . . . . . . . 389

204. SEWARD’S PLAN TO AVERT CIVIL WAR. April 1, 1861 . . . . 2. . 392 205. LINCOLN’S MESSAGE TO CONGRESS. July 4, 1861 . . . . . 2. 83988 206. CRITTENDEN-JOHNSON RESOLUTIONS ON OBJECTS OF WAR. July, 1861 . . . . 395

207. GENERAL BUTLER’S ‘“‘CONTRABANDS.” July 30,1861 . . . . . . . 1.) . 396 208. FREMONT’S PROCLAMATION ON SLAvES. August 30, 1861 . . . . . ..) . 397

209. EX PARTE MERRYMAN. 1861 . . . . . . 1... 898 210. SECESSION OF KENTUCKY. November 20, 1861 . . . . . . . . ..) . 401 211. COMPENSATED EMANCIPATION

1. MESSAGE TO CONGRESS. March 6, 1862 . . . . . . . . OO. 402 2. MESSAGE TO CONGRESS. December 1, 1862 . . . . . . . 2). . 403 212. SUMNER’S RESOLUTIONS ON THEORY OF SECESSION. February 11, 1862. . . . 406

213. DAVIS’S INAUGURAL ADDRESS. February 22, 1862 . . . . . . . 3. 3.) 407

214. HOMESTEAD ACT. May 20,1862. . . . . . . he 410 215. PACIFIC RAILWAY ACT. July 1,1862. . . . . hh. 4a

216. MORRILL ACT. July 2, 1862. . 2. 2... a 412 217. MCCLELLAN’S LETTER TO PRESIDENT LINCOLN. July 7, 1862 . . . . . . 3. 413 218. GENERAL POPE’S ADDRESS TO ARMY OF VIRGINIA. July 14, 1862. . . . . . 414

219. LINCOLN AND GREELEY

1. “THE PRAYER OF TWENTY MILLIONS.” August 19, 1862. . . . . . . 415

31, 1862. 2. we. 418

2. LINCOLN’S LETTER TO GREELEY. August 22,1862 . . . . . . . . 417 220. ADDRESS TO PRESIDENT LINCOLN BY WORKING-MEN OF MANCHESTER. December

221. LINCOLN’S REPLY TO WORKING-MEN OF MANCHESTER. January 19,1863 . . . 419

222. EMANCIPATION PROCLAMATION. January 1, 1863 . . . . . . . . . = . 420 223. RESOLUTIONS OF ILLINOIS LEGISLATURE ON EMANCIPATION. January 7, 1863 . . 421

224. LINCOLN’S LETTER TO GENERAL HOOKER. January 26, 1863. . . . . . . 422 225, RESOLUTIONS AGAINST FOREIGN MEDIATION. March 3, 1863. . . . . = . . 423 226. THE FRENCH IN MEXICO

1. MR. SEWARD TO MR. ADAMS. March 3, 1862. . . . . . . .) . 424 2. HOUSE RESOLUTION ON FRENCH INTERVENTION. April 4, 1864... . .) . 425

3. MR. SEWARD TO MR. MOTLEY. April 16, 1866. . . . . , . . ~ .) . 426

227. NEW JERSEY PEACE RESOLUTIONS

DOC, NO. PAGE

XVI TABLE OF CONTENTS

1, RESOLUTIONS OF LEGISLATURE OF NEW-JERSEY. March 18, 1863 . . . . 427

2. PROTEST OF NEW-JERSEY SOLDIERS. March 10, 1863 . . . . . . . 428

It, 1863 2. ee 4209

228. GETTYSBURG ADDRESS. November 19,1863. . . . . . . . . 428 229. RECONSTRUCTION OF TENNESSEE: LINCOLN’S LETTER TO JOHNSON. September

230. LINCOLN’S PLAN OF RECONSTRUCTION. December 8, 1863. . . . . . . . 429

231, NATIONAL BANK ACT. June 3, 1864. 2. 2. 2... . 8]

232. PLATFORM OF NATIONAL UNION PARTY. June 7, 1864. . . . . . . . . 435

233. CONTRACT LABOR LAW. July 4, 1864 . . 2. . . ys 486

234. WADE-DAVIS BILL. July 8, 1864. . . . . . 486 235. LINCOLN’S PROCLAMATION ON WADE-DAVIS BILL. July 8, 1864 . . . . . . 439

236. WADE-DAVIS MANIFESTO. August 5, 1864. . . . . . , . 49 237. HAMPTON ROADS CONFERENCE. February 3, 1865. . . . . . . . . . 440

238. LINCOLN’S SECOND INAUGURAL ADDRESS. March 4, 1865. . . . . . . . 442 239, LINCOLN’S TERMS OF PEACE: ADMIRAL PORTER’S REPORT OF CITY POINT CONFER-

ENCE. March 27, 1865 . . 2. ww ee. 448

4,1865 2. 2 we. 446

240. DAVIS’s LAST MESSAGE TO PEOPLE OF CONFEDERACY. April 4, 1865. . . . . 444 241. BURNING OF COLUMBIA, SOUTH CAROLINA. REPORT OF GENERAL SHERMAN. April ,

242. LEE’S FAREWELL TO HIS ARMY. April 10,1865. . . . . . . OO 449

243. SURRENDER OF GENERAL JOHNSTON. April 18, 1865 . . . . . . . .. . 447

244. LINCOLN’S LAST PUBLIC ADDRESS. April 11, 1865. . . . . . «448 VoLuUME II

245. FREEDMEN’S BUREAU BILL. March 3, 1865. . . . . . Ott

246. BLACK CODE OF MISSISSIPPI. 1865

I, CIVIL RIGHTS OF FREEDMEN. . . . . . OO a DD

2. APPRENTICE LAW . 2. 4 6. we eee kl kB

3. VAGRANT LAW . 2... wee kk 4. PENAL LAWS a

247. BLACK CODE OF LOUISIANA. 1865

I, ACT TO REGULATE LABOR CONTRACTS . . . . . . eta aS 2. ACT RELATIVE TO APPRENTICES ee 248. JOHNSON’S AMNESTY PROCLAMATION. May 29, 1865. . . . . . . . , OY

June 30, 1865 ©. 2. 2... eg

249. JOHNSON’S PROCLAMATION FOR PROVISIONAL GOVERNMENT OF SOUTH CAROLINA.

250. GRANT’S OBSERVATIONS ON CONDITIONS IN THE SoUTH. December 18, 1865. . . 10

251. VETO OF FREEDMEN'S BUREAU BILL. February 19,1866 . . . . . . 0.) «(12

252. CIVIL RIGHTS ACT. April 9, 1866 . . . . . 0... 1h 253. VETO OF CIVIL RIGHTS ACT. March 27, 1866 . . . . . . . , » . |S

254. REPORT OF JOINT COMMITTEE ON RECONSTRUCTION. June 20, 1866. . . . . 18 255. JOHNSON ON RESTORATION OF SOUTHERN STATES. December 3, 1866. . . . 20

256. EX PARTE MILLIGAN. 1866 . . . . . . . a

257. SOUTH CAROLINA IMMIGRATION BILL. 1866 . . . . . . . .) hh 26

258. EX PARTE GARLAND. 1867 ee 259. MISSISSIPPI V. JOHNSON. 1867. . . . . O28 260. FIRST RECONSTRUCTION ACT. March 2, 1867. . . . . . . . . 30

261. VETO OF FIRST RECONSTRUCTION ACT. March 2, 1867. . . . . . . . . 31

262. TENURE OF OFFICE ACT. March 2, 1867. . . . 2... 85 263. VETO OF TENURE OF OFFICE ACT. March 2, 1867. . . . . . . . . >, 36

264. COMMAND OF THE ARMY ACT. March 2, 1867. . . . . . 87 265. SECOND RECONSTRUCTION ACT. March 23, 1867 . . . . . . . 38

266. VETO OF SECOND RECONSTRUCTION ACT. March 23, 1867. . . . . . . (39

267. THIRD RECONSTRUCTION ACT. July 19, 1867 . . . 2... 4 268. PURCHASE OF ALASKA. March 30, 1867. . . . . . . Oe a, «42

269. IMPEACHMENT OF PRESIDENT JOHNSON. 1868 . . . . . . 2. sw ws a 48 270. FOURTH RECONSTRUCTION ACT. March 11, 1868 . . . . . . 0. ek. 4d

poc. NO. PAGE

TABLE OF CONTENTS XVIi

271. KU KLUX KLAN: ORGANIZATION AND PRINCIPLES. 1868 . . . . «2. « «© « 49

272. FOURTEENTH AMENDMENT. July 28, 1868. . . . . ww ew ew ee 273. ACT TO ENFORCE THE FOURTEENTH AMENDMENT. April 20,1871 . . . . . 352 274. DEMOCRATIC PLATFORM OF 1868. July 4, 1868 . . . . . . . 2. S54 275. JOHNSON’S RECOMMENDATION FOR REVALUATION OF PUBLIC DEBT. Deccmber 9, 1868 55

276. GRANT’S FIRST INAUGURAL ADDRESS. March 4, 1869 . . . . . . . «. . 56

277. VEAZIE BANK VU. FENNO. 1869. 2. 1 we wee ee ee ee SB

278. TEXAS UV. WHITE. 1869 . . 2. 2... we ee eS” 280. LEGAL TENDER CASES. 1871 . . 2... eee 64 281. TREATY OF WASHINGTON. May 8,1871. . . . . . 2. . ee eee 279. GRANT’S APPEAL FOR ANNEXATION OF SANTO DOMINGO. May 31, 1870. . . . 63

282. COLLECTOR v. DAY. 1871. 2. 2. ww eek kk kk 68 283. LIBERAL REPUBLICAN PARTY PLATFORM. May 1, 1872. . . . . . . «. « 70

284. SLAUGHTER-HOUSE CASES. 1873 . 2... 71 285. “THE CRIME OF 773.” February 12, 1873. . 2. . 2... eee TS

286. CITIZEN’S SAVINGS AND LOAN ASSOCIATION V. TOPEKA. 1874. . . . . . «= 76 287. THE GRANGER MOVEMENT 1. RESOLUTIONS OF SPRINGFIELD, ILLINOIS, FARMERS’ CONVENTION. April 2, 1873 78

2. DECLARATION OF PURPOSE OF NATIONAL GRANGE. 1874... . . 2). O79

288. GRANT’S RECOMMENDATION OF RESUMPTION OF SPECIE PAYMENTS.

l. MESSAGE OF DECEMBER 6,1869. . . . . 1... eee ee CI 2. MESSAGE OF DECEMBER 7, 1874 . . . . . . eee ee 82

289. RESUMPTION OF SPECIE PAYMENTS. January 14,1875. . . . . . . . ..) 83

290. MINOR UV. HAPPERSETT. 1875. . 2. 2... we 84 291. CIVIL RIGHTS act. March 1, 1875... . 2. 2... eee 86 292. CIVIL RIGHTS CASES. 1883 . . . . . ww ee 86 293. EX PARTE YARBROUGH. 1884 See ee ke ek 8B

294. MUNN UV, ILLINOIS. 1876. . . . . . ek a YW 295. COMMONWEALTH U. HAMILTON MANUFACTURING COMPANY. 1876. . . . . 94

296. PRESIDENT GRANT’S APOLOGY. December 5, 1876. . . . . . . .) 2), 9S

June 11, 1877) 2. ww en 06

297. GOVERNOR CHAMBERLAIN ON RESTORATION OF WHITE RULE IN SOUTH CAROLINA.

298. PREAMBLE OF CONSTITUTION OF KNIGHTS OF LABOR. January 1, 1878. . . . 96

299. BLAND-ALLISON ACT. February 28, 1878 . . . . . . . 97

300. HAYES’S VETO OF BLAND-ALLISON ACT. February 28,1878 . . . . . . . 98 301. ENCYCLICAL LETTER, QUOD APOSTOLIC] MUNERIS. December 28,1878 . . . . 100

29,1879. we ek 004 29, 1881 2. ww 198

302. POWELL’S REPORT ON THE ARID REGION OF THE WEST. 1879. . . . . . . 102 303. THE PROBLEM OF “RIDERS”: HAYES’S VETO OF ARMY APPROPRIATION ACT. April

304. PRESIDENT ARTHUR ON THE INDIAN PROBLEM. December 6, 1881. . . . . 106 305. PAN-AMERICANISM: BLAINE’S INVITATION TO PAN-AMERICAN CONGRESS. November

306. TREATY REGULATING CHINESE IMMIGRATION. November 17, 1880 . . 2. .) . 109

307. CHINESE EXCLUSION acT. May 6, 1882 . . . . . . . . . 440 309. JULLIARD UV. GREENMAN. 1884. . . . . . OOO . 113

308. PENDLETON Act. January 16, 1883. . 2... EL

8, 1885 2 18

310. IN RE JAcops. 1885 . 2. . . . . 116

311. CLEVELAND’S RECOMMENDATION OF REPEAL OF BLAND-ALLISON ACT. December

312. CLEVELAND ON PENSION LEGISLATION. June 21,1886. . . . . . . . . 420 313. SINGLE-TAX: PLATFORM OF HENRY GEORGE. 1886. . . . . . . ~ . . 121

314. WABASH CASE. 1886. . . . 2. . . ~ es 6 « 122 315, DAWEs acT. February 8, 1887 . 2... . . we 124

316. HaTCH act. March 2, 1887. . . . . . . . sg 317. CLEVELAND’S TARIFF MESSAGE. December 6, 1887 . . . . . . .. . 126 318. INTERSTATE COMMERCE ACT. February 4,1887 . . . . . . . . . . 129

319. JUDICIAL REVIEW OF RAILROAD RATES. .

1. C.M.& ST. PAULR. R.CO. U. MINNESOTA. 1889. . . . . .. » « « 132

boc. NO. PAGE XVill TABLE OF CONTENTS

2. SMYTH v. AMES. 1897 . 2... ww ek kk kw ke ww 133 3. REGAN U. FARMERS’ LOAN & TRUST CO. 1894. . . . . . OO 135

320. SHERMAN ANTI-TRUST ACT. July 2, 1890 . . . . . . hh. SS 36 321. SHERMAN SILVER PURCHASE ACT. July 14, 1890. . . . . 0.0. SOO37 322. CLEVELAND'S SILVER LETTER. February 10, 1891 . . . . . . 138 323. TILLMANISM IN SOUTH CAROLINA: THE SHELL MANIFESTO. January 23,1890. . 138

324. OCALA DEMANDS. December, 1890 . . . . . . . . OOD 325. PLATFORM OF THE POPULIST PARTY. July 4,1892. . . . 2. . 0... e143 326. U.S. U. WORKINGMEN’S AMALGAMATED COUNCIL. 1893. . . . . . . . 146 327. CLEVELAND'S MESSAGE ON REPEAL OF SHERMAN ACT. August 8, 1893 . . . . 147

328. REPEAL OF THE SHERMAN ACT. November 1, 1893 . . . . . . . ) .) . 149

329. FUR-SEALING CONTROVERSY

1, CONVENTION FOR SETTLEMENT OF DISPUTE. February 29, 1892 . . . . 150 2, ARTICLES OF AWARD OF TRIBUNAL OF ARBITRATION. August 15,1893 . . . 151 330. PRESIDENT HARRISON’S MESSAGE ON ANNEXATION OF HAWAII. February 13, 1893 . 152 331, CLEVELAND’S WITHDRAWAL OF HAWAII ANNEXATION TREATY. December 18, 1893 . 153 332. COXEY’S PROGRAM. 1894

1. NON-INTEREST BEARING BOND BILL . . . . . 6.0.6. wh ee ete OSS 2. GOOD ROADS BILL . . . . . . ke ew 155 333. POLLOCK VU. FARMERS’ LOAN AND TRUST COMPANY. 1894. . . . . .) .) 155 334. ALTGELD-CLEVELAND CONTROVERSY. July, 1894. 2. . . 2.) . 0... 159 335. U.S. Uv. DEBS ETAL. 1894. ©. 2. 2... «162 336. IN RE DEBS. 1895. . 2. . wk 163 337. CLEVELAND’S APPEAL FOR GOLD GUARANTEE ON BONDS. February 8, 1895 . . . 166

338. APPEAL OF THE SILVER DEMOCRATS. March 5, 1895 . . . . . . ).) 167

339. U.S.U.E.C. KNIGHT COMPANY.1895. . . . . . 0... 168 340. CLEVELAND’S MESSAGE ON VENEZUELA BOUNDARY CONTROVERSY. December 17, 1895 170

341. REPUBLICAN PLATFORM OF 1896. June 16, 1896. . . . . . . .).) 173 342. BRYAN’S CROSS OF GOLD SPEECH. July 8, 1896. . . . . . . . . «174 343. DEMOCRATIC PLATFORM OF 1896. July 8, 1896. . . . . . 0... «178

344. WOLDEN v. HARDY. 1898 . . . . . wee ee eee «180

345. THE DE LOME LETTER. December, 1897 . . . . . . . . hehe 181 346. MCKINLEY’S WAR MESSAGE. April 11,1898. . . . . . . 182 347. RESOLUTION FOR RECOGNITION OF INDEPENDENCE OF CUBA. April 20, 1898 . . . 186

348. ANNEXATION OF HAWAII July 7, 1898 . . . . . . 1... 86

349. TREATY OF PEACE WITH SPAIN. December 10, 1898 . . . . . . . 2.) 187 350. OPEN DOOR IN CHINA.

1. HAY’S CIRCULAR LETTER. September 6, 1899. . . . . . . . . . 190

2. HAY’S LETTER OF INSTRUCTION. March 20,1900. . . . . . . . . 191

3. HAY’S CIRCULAR LETTER. July 3, 1900 . . . . . . 2... 191 351. PLATFORM OF AMERICAN ANTI-IMPERIALIST LEAGUE. October 18, 1899. . . . 192

352. DOWNES Uv. BIDWELL. 1901. . . . . . . eee kw 193

353. GOLD STANDARD ACT OF 1900. March 14,1900. . . . . . . . .) L198 354. MCKINLEY’S RECIPROCITY SPEECH. September 5, 1901 rs £°1°) 355, HAY-PAUNCEFOTE TREATY. November 18, 1901 . . . . . . .).)).). 200 356. ROOSEVELT ON THE TRUSTS: EXTRACT FROM FIRST ANNUAL MESSAGE TO CONGRESS.

December 33,1901 . . . . . eee ee 201

357. W.C. T. U. DECLARATION OF PRINCIPLES. 1902. . . . . . . . . . . 203

358. DRAGO DOCTRINE. December 29, 1902. . . . . . . . he 208 359. LOTTERY CASE (CHAMPION v. AMES). 1903. . . . . . . ee eee 206 360. PLATT AMENDMENT. May 22,1903. . . . . . . . 2. ee 2009 361. CONVENTION WITH PANAMA FOR CONSTRUCTION OF CANAL. November 18, 1903 . 210 362. ROOSEVELT COROLLARY TO THE MONROE DOCTRINE.

1. ANNUAL MESSAGE. December 6,1904. . . . . . . . . .) «213

2. ANNUAL MESSAGE. December 5,1905. . . . . . . « «. . © « 214

363. NORTHERN SECURITIES COMPANY V. U. S. 1904 . . . 2... wee 215

364. LOCHNER Vv. NEW YORK.1905. . . 2. 0. ee ee ee ee 2219 365. PEOPLE UV. WILLIAMS. 1907 . . . . 2. 2 ee eee eee ee 222

DOC. NO. PAGE TABLE OF CONTENTS X1X

366. MULLER V. OREGON. 1908. . . «© ee ee ee ew ww we 228

367. JAPANESE IMMIGRATION: THE GENTLEMEN’S AGREEMENT. 1908 . . . . . . 225 368. ADAIR v. U. §. 1908. . . 2 ee ee ee ee ee 225

369. ROOSEVELT’S MESSAGE ON CONSERVATION. December 3, 1907. . . . . . . 228 370. DECLARATION OF THE CONSERVATION CONFERENCE. May 15, 1908. . . . . 230

371. SOCIAL CREED OF THE CHURCHES. May, 1908. . . . . . . 2. «© « « 232 372. ROOT-TAKAHIRA AGREEMENT. November 30,1908. . . . . . . . « « 232 373. TAFT ON THE INJUNCTION IN LABOR DISPUTES. March 4,1909 . . . . « . 233 374. TAFT’S DEFENCE OF PAYNE-ALDRICH TARIFF. September 17, 1909 . . . . . 234 375. THE RULE OF REASON.

1. U.S. UV. TRANS-MISSOURI FREIGHT ASSOCIATION. 1897. . . . «© «© © «© 235

2. REPORT OF SENATOR NELSON. 1909. . . . . ew ee ee ee 2386

3. STANDARD OIL CO. OF N. J. ETAL. V.U.S.1911. 2. 2. 2. 2... we 237 4. DISSENTING OPINION IN STANDARD OIL CASE. 1911. . . . . 2 237 5. EXTRACT FROM SPECIAL MESSAGE OF PRESIDENT TAFT, December 5, 1911 . . 238

ary 21,1911. 2. 2 we ee ee 239

376. NATIONAL PROGRESSIVE REPUBLICAN LEAGUE: DECLARATION OF PRINCIPLES. Janu-

377. TAFT’S MESSAGE ON CANADIAN RECIPROCITY. January 26, 1911. . . . . . 240 378. TAFT’S VETO OF ARIZONA ENABLING ACT. August 22,1911. . . . . . . ) . 242 379. ROOSEVELT’S CANDIDACY IN 1912: APPEAL OF THE SEVEN GOVERNORS AND LETTER

OF ACCEPTANCE. February, 1912 . . . . . 2. . ew wee 245

380. ROOSEVELT’S NEW NATIONALISM SPEECH, February 21, 1912 . . . . . . 246 381. RECOMMENDATIONS OF THE ALDRICH COMMISSION. 1912. . . . . . . . 248

382. PLATFORM OF THE SOCIALIST PARTY. May 12,1912. . . . . . . . ) . 249

383. BRYAN’S RESOLUTIONS, DEMOCRATIC NATIONAL CONVENTION, June 27, 1912 . . 253

384. PLATFORM OF THE PROGRESSIVE PARTY, August 5, 1912. . . . . . . = . 253

3, 1912 2. 2... ee 256

385. LODGE COROLLARY TO THE MONROE DOCTRINE. August 2, 1912. . . . . . 255 386. DOLLAR DIPLOMACY: EXTRACT FROM TAFT’S FOURTH ANNUAL MESSAGE. December

387. TAFT’S VETO OF LITERACY TEST FOR IMMIGRANTS. February 14, 1913. . . . 257

MITTEE. 1913 Be ee ek ee ew. 258

388. CONCENTRATION OF CONTROL OF MONEY AND CREDIT: REPORT OF THE PUJO COM-

389. WILSON’S FIRST INAUGURAL ADDRESS. March 4, 1913. . . . . . . 3.) . 262

March 19,1913. . . 2... ee 265

390. REPUDIATION OF “DOLLAR DIPLOMACY’: STATEMENT FROM PRESIDENT WILSON.

391. TARIFF REVISION UNDER WILSON: WILSON’S ADDRESS TO CONGRESS, April 8, 1913 . 266

392. WILSON’S DENUNCIATION OF THE TARIFF LOBBY. May 26,1913 . . . . = . = . 267 393. WILSON’S SPECIAL MESSAGE ON MEXICAN RELATIONS. August 27, 1913. . . . 267

394. WILSON’S MOBILE ADDRESS. October 27, 1913. . . . . 2... 269

395. THE TAMPICO INCIDENT: WILSON’S MESSAGE TO CONGRESS. April 20, 1914. . . 271

396. MEDIATION PROTOCOL OF THE A. B. C. CONFERENCE. June 12,1914. . . . = . 272

397. WILSON’S PANAMA CANAL TOLLS MESSAGE. March 5,1914 . . . . . . =. 273

398. BRYAN-CHAMORRO CONVENTION. August 5, 1914. . . . . . . 0.) SC 274

399. THE SHREVEPORT CASE. 1914 . 2. 2. 2. ww wee eke 2785 400. WILSON’S APPEAL FOR NEUTRALITY. August 19,1914. . . . . . . . =. 276 401. TREATY OF ARBITRATION WITH CHINA. September 15, 1914. . . . . =). ) . 277

402. FEDERAL TRADE COMMISSION ACT. September 26, 1914 . . . . . . . =. 278

403. CLAYTON ANTI-TRUST ACT. October 15, 1914. . . . . 2... hh L279 404. WILSON’S VETO OF LITERACY TEST FOR IMMIGRANTS. January 28,1915. . . . 281

405. FIRST LUSITANIA NOTE. May 13,1915. . 2. 2... ee 282 406. ELIHU ROOT ON INVISIBLE GOVERNMENT. August 30,1915 . . . . . 3.) . 285

LATIONS. 1915 . 2... we 28:7

407. CONCENTRATION OF WEALTH: FINAL REPORT OF COMMISSION ON INDUSTRIAL RE-

408. GORE-MCLEMORE RESOLUTION AND WILSON’S REPLY. February, March, 1916 . . 290 409. THE SUSSEX AFFAIR: WILSON’S ADDRESS TO CONGRESS. April 19,1916 . . . . 291

410. AMERICAN CONTROL OF HAITI: TREATY OF MAY 3, 1916 . . . . ) . 2)... 292 411. AGRICULTURAL LEGISLATION IN FIRST WILSON ADMINISTRATION: LETTER FROM

WILSON TO A. F. LEVER. August 11,1916. . . . 2. 2... 294

DOC. NO. PAGE XX TABLE OF CONTENTS

412. ORGANIC ACT OF TIIE PHILIPPINE ISLANDS. August 29,1916. . . . . 3 .) . 296

413. HAMMER UV, DAGENHARTETAL. 1918. . . . . . . Ot ~ « . 299

414. ADAMSON ACT. September 3,5,1916 . 2. . 2... 303

415. WILSON v.NEW.1917. 2. 0. 2... » 2. 2. . 303 416. “PEACE WITHOUT VICTORY”: ADDRESS OF PRESIDENT WILSON, January 22, 1917 . 305

417. ZIMMERMANN NOTE. March 1, 1917 . . . . . . . » . « 308

418. WILSON’S SPEECH FOR DECLARATION OF WAR. April 2,1917 . . . . kL. 308 419. LeEveR acT. August 10,1917. 2. 2 ww 312 420. LANSING-ISHII AGREEMENT. November 2, 1917 . . . . . . . 313

4Z1. BUNTING Uv. OREGON. 1917 . 2. 2... wD ~ . . 314 422, IMMIGRATION RESTRICTION: LAWS OF 1917 AND 1921. . . . . . ~ . . 315

423. THE FOURTEEN POINTS

1. WILSON’S ADDRESS TO CONGRESS. January 8, 1918 2. . 2. we. 817 2, AMERICAN INTERPRETATION OF FOURTEEN POINTS . . . . . . 319

3. ALLIES ACCEPT THE FOURTEEN POINTS. November 59,1918. 2. 2. L323

424. RAILWAY ADMINISTRATION ACT. March 21, 1918. . . . . . .) .) .) 324

425. ESPIONAGE ACT. May 16,1918. . . 2. . . . 325

426. SCHENCK v. U.S. 1919. 2. 2... . . 326 427. ABRAMS Uv. U. S.: DISSENTING OPINION OF MR. JUSTICE HOLMES. 1919. . . ., ., 328 428. ARCHANGEL EXPEDITION: AIDE-MEMOIRE OF JULY 17,1918. . wk 8329

429. WILSON’S APPEAL TO VOTERS. October 24, 1918 . . . . . . .) 33]

430. CHILD LABOR ACT. February 24, 1919. . 2. 2. . . . gg 8383 431. BAILEY v. DREXEL FURNITURE COMPANY. 1922. . . . . . . .. ~ « 333

432. VOLSTEAD AcT. October 28, 1919. . 2. 2... . 8384

433. NATIONAL PROHIBITION CASES. 1920 . . . . . . . ... » . . 336

19, 1919 2 we, 888

434. PREAMBLE OF INDUSTRIAL WORKERS OF THE WORLD. 1919 soe eee 8387 435. WILSON’S EXPOSITION OF THE LEAGUE OF NATIONS TO SENATE COMMITTEE. August

436. DEFEAT OF THE LEAGUE OF NATIONS. March 19,1920 . . . . . . . . 340

437. MISSOURI Vv. HOLLAND. 1920. . . . . . . we 343

438. TRANSPORTATION ACT OF 1920. February 28, 1920. . . . . . ) .) .) . 345

439. RAILROAD COMMISSION OF WISCONSIN U.C. B. & Q.R.R.CO.1922. . . . . . 347 440. DAYTON-GOOSE CREEK RAILWAY COMPANY V. U. Ss. 1924... . . 2.) .) SS, 349

441. GREEN UV. FRAZIER. 1920. . 2. 2... ee 850

442. TREATY OF PEACE WITH GERMANY. August 25,1921. . . . . . . ) .) . 352

443. SHEPPARD-TOWNER ACT. November 23, 1921. . . . . . 0... 353

444. TRUAX V. CORRIGAN. 1921. 2. 2. we ee, 884 445. DUPLEX PRINTING PRESS COMPANY UV. DEERING. 1921. . . . . . .) 357 446. BALZAC v. PORTO RICO. 1922. . . . . we 858

447. NAVAL LIMITATION TREATY. February 6,1922. . . . . . . 0... 36]

448. FOUR-POWER TREATY. December 13, 1921 . . . . 2... eS 363 449. NINE-POWER TREATY. February 6, 1922 . . . . . . YL 364 450. WOLFF PACKING COMPANY Vv. KANSAS COURT OF INDUSTRIAL RELATIONS. 1923. . 366 451. ADKINS v. CHILDREN’S HOSPITAL. 1923. . . . 2... 867

February 8, 1924 . 2. 2. . . ee TI

452. TEAPOT DOME: JOINT RESOLUTION OF CONGRESS ON CANCELLATION OF OIL LEASES.

453. IMMIGRATION ACT OF 1924. May 26,1924. . . . . . .0.0h.h LL 372

454. LA FOLLETTE PLATFORM OF 1924 . . . . 2... hh B74

455. PIERCE v. SOCIETY OF THE SISTERS.1925. . . . . . hh 877 456. GITLOW v. PEOPLE OF NEW yoRK. 1925. . . . 2... eee 378 457. UNITED STATES AND THE WORLD COURT

1. THE SWANSON RESOLUTION. January 27,1926 . . . . . . . >.) , 382 2. DRAFT PROTOCOL FOR ACCESSION OF THE UNITED STATES. March 19, 1929 . 383

458. TYSON 1926. . . 2... 0... 386 384 459. MYERSv.v.BANTON. U.S. 1926. . 2. 2. 1. we. 460. AMERICAN INTERVENTION IN NICARAGUA: COOLIDGE’S MESSAGE OF JANUARY 10, 1927 388

461. MCNARY-HAUGEN BILL. February 25,1927. . . . . . . . . 890

462. COOLIDGE’S VETO OF MCNARY-HAUGEN BILL. February 25,1927 . . . . . . 393

poc. MO. PAGE TABLE OF CONTENTS XX]

463. BUCK v. BELL. 1927. . . . 1. 4. ee ew ww lt lee le lw ee 896 464. NIXON UV. HERNDON (TEXAS WHITE PRIMARY CASE) 1927. . . «© © «© « © 397

465. VANZETTI’S LAST STATEMENT IN COURT. April 9, 1927 . . . . «© 2 © .« 398 466. TREATIES OF ARBITRATION AND CONCILIATION WITH GERMANY. May 5,1928 . . 399

467. KELLOGG PEACE PACT. August 27,1928. . . . . . 2. we we we ew ele 401 468. HOOVER’S RUGGED INDIVIDUALISM SPEECH. October 22,1928. . . . . «. «© 402

469. STIMSON DOCTRINE. February 6.1931. . . . . 2. ee ee ee 408 470. HOOVER’S VETO OF MUSCLE SHOALS BILL. March 3, 1931. . . . . . « ~~ 406

471. MOONEY-BILLINGS CASE: CONCLUSIONS OF THE SUB-COMMITTEE. June, 1931 . . 408

472. NEW STATE ICE COMPANY UV. LIEBMANN. 1932... ww eee ee 409 473. CONSTITUTION OF AMERICAN FEDERATION OF LABOR. 1932 . .- «~ . © |. + 412

474. NORRIS-LAGUARDIA ANTI-INJUNCTION BILL. March 20,1932. . . . . . . 445

475. DEMOCRATIC PLATFORM OF 1932. June 30. 1932. . . . 2. 1. 2). AUT

476. ¥F. D. ROOSEVELT’S FIRST INAUGURAL ADDRESS. March 4, 1933. . . . . . . 419

477. AGRICULTURAL ADJUSTMENT acT. May 12, 1933. . . . .). we 422 478. U.S. v. BUTLER ef. al. 1936. 2. 1 we 426

479. TENNESSEE VALLEY ACT. May 18,1933. . . . . . . ww wee 45

480. ASHWANDER VU. TENNESSEE VALLEY AUTHORITY. 1936. . . . . . . . . 437 481. ABANDONMENT OF THE GOLD STANDARD. June 5,1933. . . . . 2... 442

482. GOLD CLAUSE CASES.1935. 2. 2... wk ke 443

483. EMERGENCY RAILROAD TRANSPORTATION ACT. June 16, 1933. . . . . . . 449

484. NATIONAL RECOVERY ACT. June 16,1933. . . . . . . weet 45 485. COTTON TEXTILE CODE. July 17,1933. . . . . 1. ww wee 456

486. SCHECHTER POULTRY CORP. v. UNITED STATES. 1935. . . . . . ss. . 458 487. U.S. v. ONE BOOK CALLED “ULYSSES.” 1933... 2. 1. ww ew we ee 463 488. RECOGNITION OF SOVIET RUSSIA. November 16, 1933. . . . . . . . . 466

489. PHILIPPINE INDEPENDENCE ACT. March 24,1934. . . . . . . .).). 467

490. JOHNSON AcT. April 13, 1934 . . 2... a 4a

491. ABROGATION OF THE PLATT AMENDMENT. May 29,1934. . . . . . . . 471

492. ANTI-WAR TREATY OF NON-AGGRESSION AND CONCILIATION. June 15, 1934. . . 472 493. TAYLOR ACT. June 28, 1934. . . 2... 4 494. HOME BUILDING AND LOAN ASSOCIATION UV. BLAISDELL. 1934. . . . . . . 476

495. NEBBIA v. NEW yorK. 1934. . . 2... ek 478

496. ROOSEVELT’S VETO OF THE SOLDIERS’ BONUS BILL. May 22,1935. . . . . . 482

497. RAILROAD RETIREMENT BOARD v. ALTON RAILROAD CO.1935. . . . .) .tCtw:C«4 B'S

498. HUMPHREY’S EXECUTOR v. U.S. 1935 . 1. . wwe. BB 499. GROSJEAN v. AMERICAN PRESS CO.1935. . . . . . . OOO 4

500. NATIONAL LABOR RELATIONS ACT. July 5,1935. . . . . Oe, 493 S01. N.L.R.B. v. JONES & LAUGHLIN STEEL CorP. 1937. . . . 2... et 498

502. ASSOCIATED PRESS v. N.LR.B. 1937. 2. . ww wee

503. SOCIAL SECURITY ACTS. August 14, 1935. . . . . . . .OOOt:SCOS

504. STEWARD MACHINE CO. v, DAVIS. 1937. . . . . . weet C8

S05. HELVERING v. DAVIS. 1937. . . ww we B19 506. CANADIAN RECIPROCAL TRADE AGREEMENT. May 14,1936. . . . . . . . 52]

507. CARTER Uv. CARTER COAL CO.1936. . 2. ww we 852

508. REPUBLICAN PLATFORM OF 1936. June 11,1936... . . .. . ~ . 533

S09. DEMOCRATIC PLATFORM OF 1936. June 25,1936. . . . . . 0. Oe 538

510, U.S. VU, CURTISS-WRIGHT corp. 1936. . . . . . . . ett » . 542 S11. DE JONGE v. OREGON. 1937. 2. . 1. . we ~ 6 . 545 512. WEST COAST HOTEL CO, v. PARRISH. 1937. . . . . . . . ~ . 548

513. HERNDON v. Lowry. 1937. . 2. . . we » . 553

514, NEUTRALITY acT OF 1937. May 11,1937. . . . ... =. ~.~«~WC~«&; ~ . 558

S15. REFORM OF THE FEDERAL JUDICIARY... . . . . . . . . S62

I. PROPOSED BILL . . . ww ww we. 8G

2. ADDRESS BY THE PRESIDENT, March 9,1937. . . . . . . .) . . 563 3. ADVERSE REPORT FROM THE COMM. ON THE Jupiciary, June 7, 1937. . . 567

4, JUDICIARY REFORM ACT OF 1937. August 24,1937. . . . .. . . 57

Dpoc. NO. PAGE

XXll TABLE OF CONTENTS

516. WAGNER HOUSING acT. September 1,1937. . . . . . 3. 0.0. ew we 573

517. ECONOMIC CONDITIONS OF THE SOUTH. July 25,1938. . . . . . . . . 577 518. CONNECTICUT LIFE INS. CO. Vv. JOHNSON: DISSENTING OPINION. 1938. . . . 580

519. HELVERING Vv. GERHARDT. 1938 . . . . . wwe ee 582 520. GRAVES v. NEW YORK ex. rel. O'KEEFE. 1939 . . . 2. . www we 585

521, LIMA DECLARATION OF AMERICAN PRINCIPLES. December 24,1938 . . . . . 590

1939 . we 595

522. “NEW ORDER” IN THE FAR EAST. December 31,1938. . . . . . . . . 594

523.- “HANDS OFF THE WESTERN HEMISPHERE.” April 14,1939 . . . . . . . 594 524, ¥. D, ROOSEVELT’S APPEALS FOR PEACE IN EUROPE. April 14, 1939 and August 23,

525. HATCH acT. August 2,1939. 2. 2. 2...) ee eee 598

526. DECLARATION OF PANAMA. October 2,1939. . . . . 2... ee. 599 527. NEUTRALITY ACT or 1939. November 4,1939. . . . . . . . . . . 600

528. CHAMBERS v. FLorIpDA. 1940. . . . . . 604 529. UNITED STATES UV. SOCONY-VACUUM OIL co. 1940. . . . . . . . . . 607 530. ROOSEVELT’S ADDRESS AT CHARLOTTESVILLE, VIRGINIA. June 10,1940 . . . . 610

531. ALIEN REGISTRATION ACT. June 28,1940 . . . . . . . . Oe 613

932. THE GOBITIS CASE. 1940 . . . . ww ee 613

533. WEST VIRGINIA STATE BOARD VU. BARNETTE. 1943 . . . . . . . . . . 617

534, THE ACT OF HAVANA. July 29,1940 . . . . . . 622 935. HEMISPHERIC DEFENSE. August 18,1940 . . . . . . . . 624

536. EXCHANGE OF DESTROYERS FOR AIR AND NAVAL BASES. September 2, 1940. . . 624

537. ROOSEVELT’S “FOUR FREEDOMS” SPEECH. January 6, 1941 . . . . . . . 626

938. THE LEND LEASE ACT. March 11,1941. . 2. 2. 2. 2... 629 539. THE ATLANTIC CHARTER. August 14,1941. 2. |. . 2. | ) 631 540. ROOSEVELT § MESSAGE ASKING FOR WAR AGAINST JAPAN. December 8, 1941. . . 631

541. DECLARATION OF WAR ON GERMANY. December 11,1941. . . . . . . . 632

542. UNITED STATES Vv. DARBY LUMBER CO. 1941...) i 33

543. MITCHELL Uv. UNITED STATES ef. al. 1941... ss 87

544. UNITED STATES v. CLASSIC. 1941 . 2. 2.) 539 545. EDWARDS UV. CALIFORNIA. 1941 2.) we 643

546. JAPANESE RELOCATION ORDER. February 19,1942. . . . . . . . . . 644

547. HIRABAYASHI UV. UNITED STATES. 1943... |, 45 548. ROOSEVELT’S STATEMENT ON NORTH AFRICAN POLICY. November 17, 1942. . . 650 549, FEDERAL POWER COMMISSION UV. NATURAL GAS PIPELINE CO. 1942. . . . . 65]

550. CASABLANCA CONFERENCE. February 12,1943. . . . . . . , 654

551. MOSCOW CONFERENCE. October, 1943. . . . . 2. 56 552. CAIRO CONFERENCE. November, 1943. . . . . . 669

553. CONNALLY-FULBRIGHT RESOLUTIONS. November 5, 1943. . . . . . . . 660

554. TEHERAN CONFERENCE. December 1, 1943. . . . . . . ss 661

555. AN ECONOMIC BILL OF RIGHTS. January 11, 1944 . . |. . . . . 663

556. SMITH UV. ALLWRIGHT. 1944. |... 665 557. YALTA (CRIMEA) CONFERENCE. February, 1945 . . . . . . . .).. 667

558. THE ACT OF CHAPULTEPEC. March 6, 1945 . |. . . . 673 559. NEW YORK STATE ANTI-DISCRIMINATION ACT. March 12, 1945 . . . . . . +674 560. BRIDGES v. WIXON. 1945...) 676 561. ROOSEVELT’S DRAFT OF JEFFERSON DAY ADDRESS. April 13,1945. . . . .~ . 679

562. THE SURRENDER OF GERMANY. May 7, 1945. . . . . ss, 680

27, 1945 2. | 683

563. MILITARY OCCUPATION OF JAPAN. October 4, 1945 . . . . . . . 681 564. TRUMAN’S STATEMENT ON FUNDAMENTALS OF AMERICAN FOREIGN POLICY. October

565. UNITED NATIONS PARTICIPATION ACT. December 20,1945 . . . . . . . 684

pnoc. NO. PAGE TABLE OF CONTENTS XXIll

566. CONSTITUTION OF UNESCO. 1945... 686 567. ASSOCIATED PRESS V. UNITED STATES. 1946. . . . . 687

568. UNITED STATES UV. LOVETT, WATSON, AND DoDD. 1946. . . .. «ss. « 69 569. CONSTITUTION OF THE CONGRESS OF INDUSTRIAL ORGANIZATIONS. 1946 . . . 692

570. EMPLOYMENT ACT OF 1946. February 20, 1946... . . . . . . . (694 571. THE CONTROL OF ATOMIC ENERGY. November 15, 1946... .. ....—.~—S ss. 696

572. THE ATOMIC ENERGY COMMISSION. August 1, 1946. . . . wwe, 698

573. THE FULBRIGHT acT. August 1, 1946. ©. . . . 2... 7088 574. THE TRUMAN DOCTRINE. March 12, 1947... . .. . 704 575. AMERICAN AID TO GREECE AND TURKEY. May 22, 1947. . . . .. . —. Ss. 706

576. TRUMAN LOYALTY ORDER. March 22,1947. . . . 2. 707 577. THE MARSHALL PLAN. June 5, 1947... . 578. EVERSON v. BOARD OF EDUCATION. 1947... . . ee 78

579. TAFT-HARTLEY ACT. June 23,1947... 2. we 716

580. PRESIDENTIAL SUCCESSION ACT. July 18,1947. ©... se 720 581. NATIONAL SECURITY ACT OF 1947. July 26,1947... s,s 72 582. TRUMAN’S CIVIL RIGHTS MESSAGE. February 2, 1948. . . . ws, 723

583. THE VANDENBERG RESOLUTION. May 19,1948. . . . .. ss 726 584. MCCOLLUM VU. BOARD OF EDUCATION. 1948. . . .. ss 726 585. SELECTIVE SERVICE ACT OF 1948. June 24, 1948. . .. >, se 728 586. UNITED STATES NOTE ON BERLIN BLOCKADE AND AIRLIFT. July 6,1948 . . . . 729 587. UNIVERSAL DECLARATION OF HUMAN RIGHTS. December 6,1948 . . . .. s,s. 731

588. TRUMAN’S INAUGURAL ADDRESS. January 19, 1949 . . . . . 2... 733

589. THE NORTH ATLANTIC TREATY. April 4, 1949. ©... 7855

590. RECOGNITION OF ISRAEL. 1948-49 . . 2... 187 591. TRUMAN’S POINT FOUR PROGRAM. June 24,1949. . . .. ss. 788 592. TRUMAN ANNOUNCES HYDROGEN BOMB PROGRAM. January 31,1950. . . . . 739 593. TRUMAN’S STATEMENT ON THE KOREAN WAR. June 27,1950. . . . ...._~—.: 740

594. MCCARRAN INTERNAL SECURITY ACT. September 23, 1950 . . . . . . . 741 595. TRUMAN’S VETO OF THE MCCARRAN ACT. September 22, 1950... . . . . 744

597. DENNIS v. U.S. 1951 2. 7 7 781

596. ACHESON’S ADDRESS ON STRATEGY OF FREEDOM. November 29,1950. . . ..~—s.:«*748

598. JOINT ANTI-FASCIST REFUGEE COMMITTEE UV. MCGRATH. 1951 . . . . .... +757

599. THE RECALL OF GENERAL MACARTHUR. April 11, 1951. . . . . . 761 600. MACARTHUR’S SPEECH TO CONGRESS. April 19, 1951. . . . . 763 601. EUROPEAN RECOVERY PROGRAM. December 30, 1951. . . . . . ss 764 602. MUTUAL SECURITY ACT OF 1951. October 10,1951 . . . . . . . . 766 603. YOUNGSTOWN SHEET & TUBE CO. v. SAWYER. 1952. . . . . 769)

1953 0 778

604. TRUMAN’S VETO OF THE MCCARRAN-WALTER IMMIGRATION ACT. June 25,1952. . 774

605. UNITED STATES v. RUMELY. 1953. 2. 2. ww 95 606. CREATION OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE. March 12,

607. EISENHOWER’S SECURITY PROGRAM. April 27, 1953. . . . . . . 780

608. SUBMERGED LANDS ACT OF 1953. May 22, 1953. . . |. e782

609. TRUMAN’S REPLY TO A CONGRESSIONAL SUBPOENA. November 13.1953. . . . 783 610. EISENHOWER’S ATOMS FOR PEACE PROGRAM. December 8, 1953. . . . ...—..:785

611. THE BRICKER AMENDMENT. January-February, 1954. . . . |... . . 788 612. SECRETARY DULLES’ STRATEGY OF MASSIVE RETALIATION. January 12,1954. | . 789

613. THE GUATEMALAN CRISIS. June 30, 1954... . , 994 614. ATOMIC ENERGY COMMISSION DECISION IN OPPENHEIMER CASE. June 29,1954... 793

615. COMMUNIST CONTROL ACT OF 1954. August 24,1954... . 5», 91097

boc. NO. PAGE

XXIV TABLE OF CONTENTS

616. SENATE CENSURE OF SENATOR MCCARTHY. December 2, 1954. . . . . . 798

617. BROWN v. BOARD OF EDUCATION OF TOPEKA. 1954... . |. 799

618. CONGRESSIONAL RESOLUTION ON THE DEFENSE OF FORMOSA. January 29,1955. . 802

619. THE NATIONAL HIGHWAY PROGRAM. February 22,1955. . . . . . .,.: 803

620. SALK ANTI-POLIO VACCINE. April 13,1955... | |) 85 621. FORD FOUNDATION GRANT TO EDUCATION. December 13, 1955. . . . ... 807 622. UNITED STATES Uv. LATTIMORE. 1955. . . . . , ggg 623. CONSTITUTION OF THE AFL-CIO. 1955. 2. 2... gy

624. COLE v. yOoUNG. 1956 . 2... | gt 625. PENNSYLVANIA UV. NELSON. 1956... . |. 816 626. WHITE HOUSE CONFERENCE RECOMMENDATION ‘OF FEDERAL AID TO EDUCATION. 1956 819

627. EISENHOWER’S VETO OF NATURAL GAS BILL. February 17, 1956... . . ~. 820 628. EISENHOWER ADDRESS ON THE MIDDLE EAST CRISIS. October 31,1956. . . . 821

629. THE AMERICAN BASE IN ICELAND. December 6,1956. . . . . .. .—s, s,s «23

630. BUTLER Uv. MICHIGAN. 1957... |) ss 4

INDEX ©) 833 631. EISENHOWER ADDRESS ON AMERICAN POLICY IN THE MIDDLE EAST. F ebruary 20, 1957 825

632. THE EISENHOWER DOCTRINE. March 9, 1957... . .. we, 82 633, CIVIL RIGHTS ACT oF 1957. August 30,1957... . . . . . 828

Volume I

DOCUMENTS of

AMERICAN HISTORY To 1865

1. PRIVILEGES AND PREROGATIVES GRANTED TO COLUMBUS April 30, 1492

, (F. N. Thorpe, ed. Federal and State Constitutions, Vol. I, p. 39 ff.) For years Columbus had been presenting his nent you shall so discover and conquer; and scheme of sailing westward to the Indies to the that you be our Admiral, Vice-Roy, and sovereigns of Spain, Portugal, France and Eng- Governour in them, and that for the future, land, but without success. Finally in January you may call and stile yourself, D. Christo1492, the Spanish forces captured Granada and pher Columbus, and that your sons and sucdrove the Moors out of Spain, and Ferdinand and cessors in the said employment, may call Isabella were free to consider seriously the pro- ; . posals of Columbus. At first these terms were themselves Dons, Admirals, Vice-Roys, and considered exorbitant and negotiations were Governours of them; and that you may broken off. Columbus was actually on his way to exercise the office of Admiral, with the charge

France when he was summoned back to Court, of Vice-Roy and Governour of the said and the following terms accepted by Ferdinand JIslands and Continent, which you and your and Isabella as King and Queen of Castile. The Lieutenants shall conquer, and freely decide literature on Columbus is extensive. See, J. Win- causes, civil and criminal, appertaining sor, Christopher Columbus; C. R. Markham, 4 the said employment of Admiral, Vice-

Columbus; H. Harrisse, Christophe Colomb, 2 R ac hall think fit

Vols.; J. B. Thacher, Christopher Columbus, 3. OY, an overnour, as you sha Ink Vols. The Hakluyt Society has published the i justice, and as the Admirals of our kingJournal of Christopher Columbus and two vol- doms use to do; and that you have power

umes of Letters. to punish offenders; and you and your Lieutenants exercise the employments of AdFERDINAND and ELIZABETH, .. . miral, Vice-Roy, and Governour, in all things

For as much of you, Christopher Colum- belonging to the said offices, or any of them; bus, are going by our command, with some and that you enjoy the perquisites and salaof our vessels and men, to discover and sub-__ ries belonging to the said employments, and due some Islands and Continent in the ocean, to each of them, in the same manner as the and it is hoped that by God’s assistance, High Admiral of our kingdoms does. And by

some of the said Islands and Continent in this our letter, or a copy of it signed by a the ocean will be discovered and conquered Public Notary: We command Prince John, by your means and conduct, therefore it is our most dearly beloved Son, the Infants, but just and reasonable, that since you ex- Dukes, Prelates, Marquesses, Great Masters pose yourself to such danger to serve us, and Military Orders, Priors, Commendaries, you should’ be rewarded for it. And we being our Counsellors, Judges, and other Officers

willing to honour and favour you for the of Justice whatsoever, belonging to our reasons aforesaid; Our will is, That you, Household, Courts, and Chancery, and ConChristopher Columbus, after discovering and stables of Castles, Strong Houses, and others,

conquering the said Islands and Continent and all Corporations, Bayliffs, Governours, in the said ocean, or any of them, shall be Judges, Commanders, Sea Officers; and the our Admiral of the said Islands and Conti- Aldermen, Common Council, Officers, and ]

2 DOCUMENTS OF AMERICAN History Good People of all Cities, Lands, and Places _ tion to this, or any part of it, nor suffer it to

in our Kingdoms and Dominions, and in be made; forasmuch as we from this time those you shall conquer and subdue, and the forward, by this our letter, bestow on you captains, masters, mates, and other officers the employments of Admiral, Vice-Roy, and and sailors, our natural subjects now being, perpetual Governour forever; and we put or that shall be for the time to come, and any _— you into possession of the said offices, and of them, that when you shall have discovered of every of them, and full power to use and

the said Islands and Continent in the ocean; exercise them, and to receive the perquisites

and you, or any that shall have your com- and salaries belonging to them, or any of mission, shall have taken the usual oath in them, as was said above. Concerning all such cases, that they for the future, look which things, if it be requisite, and you shall upon you as long as you live, and after you, desire it, We command our Chancellour, your son and heir, and so from one heir toan- Notaries, and other Officers, to pass, seal, other forever, as our Admiral on our said and deliver to you, our Letter of Privilege, Ocean, and as Vice-Roy and Governour of in such form and legal manner, as you shall

the said Islands and Continent, by you, require or stand in need of. And that none Christopher Columbus, discovered and con- of them presume to do any thing to the quered; and that they treat you and your contrary, upon pain of our displeasure, and

Lieutenants, by you appointed, for execut- fortfeiture of 30 ducats for each offence. And ing the employments of Admiral, Vice-Roy, we command him, who shall show them this and Governour, as such in all respects, and our Letter, that he summon them to appear give you all the perquisites and other things before us at our Court, where we shall then belonging and appertaining to the said of- be, within fifteén days after such summons, fices; and allow, and cause to be allowed under the said penalty. Under which same, you, all the honours, graces, concessions, pre- we also command any Public Notary whatsohaminences, prerogatives, immunities, and ever, that he give to him that shows it him,

other things, or any of them which are due a certificate under his seal, that we may to you, by virtue of your commands of know how our command is obeyed. Admiral, Vice-Roy, and Governour, and to GIVEN at Granada, on the 30th of April, be observed completely, so that nothing be’ in the year of our Lord, 1492.—

diminished; and that they make no objec- I, THE KING, I, THE QUEEN. 2. THE PAPAL BULL INTER CAETERA (ALEXANDER VI) May 4, 1493 (F. G. Davenport, ed. European Treaties bearing on the History of the United States and its Dependencies to 1648, p. 75 ff.) Columbus returned from his first voyage in Cape Verde Islands: east of this line Portugal

March, 1493, and the news of his discoveries was __ was to have all the rights and possessions which

promptly communicated to the rulers of Spain she already held; west of this line Spain was to and Portugal and to the Pope. Considerable un- have the right to explore, trade, colonize, etc. certainty as to the lands discovered by Colum- The Bull of May 4 was amended by another bus existed: King John II of Portugal believed Bull of September, 1493, specifically granting to that Columbus’s discoveries had really been in the Spanish rulers the right to hold lands to the the region south and west of Guinea. Portu- “eastern regions and to India’. The line of deguese control over Guinea and the region to the marcation of 1493 was changed the following south of Cape Bojador rested upon discoveries, year, Doc. No. 3. See, J. Fiske, The Discovery of papal bulls, and a treaty with Spain of 1480. America, Vol. II, ch. vi; E. G. Bourne, Spain in King John was anxious therefore to have some America, ch. iii; J. Winsor, ed. Narrative and decision as to the effects of Columbus’s discov- Critical History of America, Vol. II; J. Winsor, eries on the territorial claims of Portugal and Christopher Columbus; O. Peschel, Die Theilung Spain. Under these circumstances the matter was der Erde unter Papst Alexander VI und Julius 11; submitted to Pope Alexander VI. By the Bulls H. Harrisse, Diplomatic History of America: of May 3 and May 4 he drew an imaginary line [ts First Chapter, 1452-1494, of demarcation one hundred leagues west of the

Ture Papat Buti INTER CAETERA (ALEXANDER VI) 3 Alexander, bishop, servant of the servants give, grant, and assign to you and your heirs of God, to the illustrious sovereigns, our and successors, kings of Castile and Leon, forvery dear son in Christ, Ferdinand, king, and _ ever, together with all their dominions, cities,

our very dear daughter in Christ, Isabella, camps, places, and villages, and all rights,

queen of Castile.... We have indeed jurisdictions, and appurtenances, all islands learned that you, who for a long time had and mainlands found and to be found, disintended to seek out and discover certain covered and to be discovered towards the islands and mainlands remote and unknown west and the south, by drawing and establishand not hitherto discovered by others, to the ing a line from the Arctic pole, namely the

end that you might bring to the worship of north, to the Antarctic pole, namely the our Redeemer and the profession of the south, no matter whether the said mainlands Catholic faith their residents and inhabitants, and islands are found and to be found in having been up to the present time greatly the direction of India or towards any other engaged in the siege and recovery of the quarter, the said line to be distant one hunkingdom itself of Granada were unable to dred leagues towards the west and south accomplish this holy and praiseworthy pur- from any of the islands commonly known as pose; but the said kingdom having at length the Azores and Cape Verde. With this probeen regained, as was pleasing to the Lord, viso, however, that none of the islands and with a wish to fulfill your desire, chose our mainlands, found and to be found, discovered

beloved son, Christopher Columbus... and to be discovered, beyond that said line whom you furnished with ships and men towards the west and south, be in the actual equipped for like designs, not without the possession of any Christian king or prince up greatest hardships, dangers, and expenses, to to the birthday of our Lord Jesus Christ make diligent quest for these remote and un- just past from which the present year 1493 known mainlands and islands through the begins. . . . Furthermore, under penalty of sea, where hitherto no one had sailed; and excommunication late sententie to be inthey at length with divine aid and with the curred zpso facto, should anyone thus conutmost diligence sailing in the ocean sea, dis- travene, we strictly forbid all persons of covered certain very remote islands and even whatsoever rank, even imperial and royal, mainlands that hitherto had not been dis- or of whatsoever estate, degree, order, or covered by others; wherein dwell very many condition, to dare without your special perpeoples living in peace, and, as reported, mit or that of your aforesaid heirs and sucgoing unclothed, and not eating flesh. ... cessors, to go for the purpose of trade or any Wherefore, as becomes Catholic kings and other reason to the islands or mainlands

princes... you have purposed...to ... apostolic constitutions and ordinances

bring under your sway the said mainlands and other decrees whatsoever to the con-

and islands. .. . And in order that you may trary notwithstanding... . Let no one enter upon so great an undertaking with therefore, infringe, or with rash boldness greater readiness and heartiness endowed contravene, this our recommendation, exwith the benefit of our apostolic favor, we, hortation, requisition, gift, grant, assignof our own accord, not at your instance nor ment, constitution, deputation, decree, man-

the request of anyone else in your regard, date, prohibition, and will. Should anyone but out of our own sole largess and certain presume to attempt this, be it known to knowledge and out of the fullness of our him that he will incur the wrath of Almighty apostolic power, by the authority of Al- God and of the blessed apostles Peter and mighty God conferred upon us in blessed Paul. Given at Rome, at St. Peter’s, in the Peter and of the vicarship of Jesus Christ, year of the incarnation of our Lord 1493, the which we hold on earth, do by tenor of these fourth of May, and the first year of our presents, should any of said islands have pontificate. been found by your envoys and captains,

4 DOCUMENTS OF AMERICAN HISTORY 3. THE TREATY OF TORDESILLAS June 7, 1494 (F. G. Davenport, ed. European Treaties bearing on the History of the United States and its Dependencies to 1648, p. 84 ff.) King John of Portugal was not satisfied with the as above, after having passed the said bound provisions of the Bull Inter Caetera, and by the toward the west, in either its north or south

Treaty of Tordesillas persuaded the Spanish latitude, shall belong to . . . the said King crown to consent to moving the line of demarca- ang Queen of Castile, Leon, etc. and to tion 370 leagues west from the Cape Verde Is- their successors

lands. This change gave Portugal a claim to 4 . . Brazil. See, J. Fiske, The Discovery of America, Item, the said representatives Promise and

Vol. II, ch. vi; E. G. Bourne, Spain in America, affirm ... that from this date no ships ch. iii; J. Winsor, ed. Narrative and Critical His- shall be dispatched—namely as follows: the tory of America, Vol. Il; O. Peschel, Die Theil- said King and Queen of Castile, Leon, Ara-

ung der Erde unter Papst Alexander VI und gon etc. for this part of the bound...

Julius II. which pertains to the said King of Portugal ... nor the said King of Portugal to the

_.. Whereas a certain controversy exists other side of the said bound which pertains between the said lords, their constituents, as to the said King and Queen of Castile, to what lands, of all those discovered in the Aragon, etc.—for the purpose of discoverocean sea up to the present day, the date of ing and seeking any mainlands or islands, or this treaty, pertain to each one of the said for the purpose of trade, barter, or conquest parts respectively; therefore, for the sake of any kind. But should it come to pass that of peace and concord, and for the preserva- the said ships of the said King and Queen tion of the relationship and love of the said of Castile . .. on sailing thus on this side King of Portugal for the said King and _ of the said bound, should discover any mainQueen of Castile, Aragon, etc. it being the lands or islands in the region pertaining, as pleasure of their Highnesses, they . . . cove- abovesaid, to the said King of Portugal, nanted and agreed that a boundary or straight such mainlands or islands shall belong for-

line be determined and drawn north and ever to the said King of Portugal and his

south, from pole to pole, on the said ocean heirs, and their Highnesses shall order them sea, from the Arctic to the Antarctic pole. to be surrendered to him immediately. And This boundary or line shall be drawn straight, if the said ships of the said King of Portugal

as aforesaid, at a distant of three hundred discover any islands or mainlands in the and seventy leagues west of the Cape Verde regions of the said King and Queen of Islands, being calculated by degrees... . Castile .. . all such lands shall belong to And all lands, both islands and mainlands, and remain forever in the possession of the found and discovered already, or to be found said King and Queen of Castile... and and discovered hereafter, by the said King their heirs, and the said King of Portugal of Portugal and by his vessels on this side shall cause such lands to be surrendered of the said line and bound determined as immediately... . above, toward the east, in either north or And by this present agreement, they . 7 south latitude, on the eastern side of the said entreat our most Holy Father that his Holi-

bound, provided the said bound is not ness be pleased to confirm and approve this crossed, shall belong to and remain in the said agreement, according to what is set possession of, and pertain forever to, the forth therein; and that he order his bulls in said King of Portugal and his successors. regard to it to be issued to the parties or And all other lands, both islands and main- to whichever of the parties may solicit them lands, found or to be found hereafter, ... with the tenor of this agreement incorporated

by the said King and Queen of Castile, therein, and that he lay his censures upon Aragon, etc. and by their vessels, on the those who shall violate or oppose it at any western side of the said bound, determined time whatsoever... .

LETTERS PATENT TO JOHN CABOT 5

. March 5, 1496

4. LETTERS PATENT TO JOHN CABOT

(F. N. Thorpe, ed. Federal and State Constitutions, Vol. I, p. 46-7) Giovanni Caboto was a Genoese; he came to or maine land of them newly found. And that England some time between 1484 and 1490, and the aforesayd Iohn and his sonnes, or their settled among the merchant adventurers of Bris- —_ hejres and assignes may subdue, occupy and

tol. Eventually he interested Henry VII in the possesse all such townes, cities, castles and project of a northern route to the East, and Se- isles of them found, which they can sub-

cured a patent to find lands unknown to Chris- d d 1] d

tians. He set sail from Bristo] May 2, 1497 and nue, O€CUpy an Possesse, as our vassals, an

made a landfall on the Labrador coast; the lieutenants, getting vnto vs the rule, title,

expenses of the voyage were borne by the Bristol Nd iurisdiction of the same villages, townes,

merchants. On Cabot, see C. R. Beazley, John castles, & firme land so found. Yet so that and Sebastian Cabot; H. Harrisse, John Cabot the aforesayd Iohn, and his sonnes and the Discoverer of North America; C. Deane, heires, and their deputies, be holden and The Voyages of the Cabots, in J. Winsor, Nar- bounden of all the fruits, profits, gaines, rative and Critical History, Vol. III; J. A. Wil- and commodities growing of such nauiga-

pamson, e rie ronages of the 00's) J. B. tion, for euery their voyage, as often as

, Lxplorers of North America, ch. vii. they shall arriue at our port of Bristoll (at The Letters patents of King Henry the which port they shall be bound and holden seuenth granted unto Iohn Cabot and his onely to arriue) all manner of necessary three sonnes, Lewis, Sebastian, and Sancius costs and charges by them made, being defor the discouerie of new and vnknowen ducted, to pay vnto vs in wares or money

lands. the fift part of the capitall gaine so gotten.

HEnry, by the grace of God, king of Eng- We giuing and granting vnto them and to land and France, and lord of Ireland, to all their heires and deputies, that they shall be to whom these presents shall come, Greeting. free from all paying of customes of all and Be it knowen that we haue giuen and singular such merchandize as they shall be granted, and by these presents do giue and free from all paying of customes of all and grant for vs and our heires, to our welbeloued singular they shall bring with them from Tohn Cabot citizen of Venice, to Lewis, those places so newlie found. Sebastian, and Santius, sonnes of the sayd And moreouer, we haue given and granted Iohn, and to the heires of them, and euery to them, their heires and deputies, that all of them, and their deputies, full and free au- the firme lands, isles, villages, townes, castles

thority, leaue, and power to saile to all parts, and places whatsoeuer they be that they countreys, and seas of the East, of the West, shall chance to finde, may not of any other

and of the North, vnder our banners and of our subjects be frequented or visited ensignes, with fiue ships of what burthen without the licence of the foresayd Iohn and or quantity soeuer they be, and as many _ his sonnes, and their deputies, vnder payne mariners or men as they will haue with them of forfeiture as well of their ships as of all

in the sayd ships, vpon their owne proper and singular goods of all them that shall costs and charges, to seeke out, discouer, presume to saile to those places so found. and finde whatsoeuer isles, countreys, regions Willing, and most straightly commanding

Or prouinces of the heathen and infidels all and singular our subjects as well on land

whatsoeuer they be, and in what part of the as on sea, appointed officers, to giue good asworld soeuer they be, which before this sistance to the aforesaid Tohn, and his sonnes

time haue bene vnknowen to all Christians: and deputies, and that as well in arming we haue granted to them, and also to euery and furnishing their ships or vessels, as in of them, the heires of them, and euery of prouision of quietnesse, and in buying of them, and their deputies, and haue giuen victuals for their money, and all other things

them licence to set vp our banners and by them to be prouided necessary for the ensignes in euery village, towne, castle, isle, sayd nauigation, they do giue them all their

6 DOCUMENTS OF AMERICAN HIsTORY helpe and fauour. In witnesse whereof we the fift day of March, in the eleuenth yeere have caused to be made these our lettres of our reigne.— patents. Witnesse our selfe at Westminister,

5. CHARTER TO SIR WALTER RALEGH March 25, 1584 (F. N. Thorpe, ed. Federal and State Constitutions, Vol. I, p. 53 ff.) English colonization in America may be dated as to him, ... shall seeme good, and the from the letters patent to Sir Humphrey Gilbert same to have, holde occupie and enjoy to of 1578. Under this grant Gilbert made two ef- him, .. . for ever, with all prerogatives, forts to establish a colony in America ; both were thereto or thereabouts both by sea and

unsuccessful, and theadventurer. second ended the tragic lett patent death of the gallant SirinWalter Ra-land. everwhatsoeve we by Ourbetters

leigh, Gilbert’s half-brother, had participated in ™@Y gtaunt, ... and the said Walter Raboth of Gilbert’s ventures, and planned to carry tegh, his heires and assignes, . . . shall goe on the work of colonization. Six months after OF travaile thither to inhabite or remaine, Gilbert’s death Raleigh received a patent couched there to build and fortifie, at the discretion

in almost identical language as the patent of of the said Walter Ralegh, ... 1578. Under his charter, Raleigh sent out five And we do likewise . . . give and graunt expeditions to the new world, and succeeded in —fyll authoritie, libertie and power to the said

planting a colony on Roanoke Island, Virginia. Walter Ralegh, ... that he... shall... .

some forty thousand pounds in his efforts to . . . ; a

Altogether Raleigh spent a personal fortune of have, take, and leade in the saide voyage, and plant a colony in the new world, but he ended travaile thitherward, or to inhabit there with his life in the Tower of London. Raleigh, writes him, or them, and every or any of them, Professor Andrews, “was the first Englishman to SUch and so many of our subjects as shall

demonstrate the practicability of transporting willingly accompanie him or them,.. . English men and women overseas to find new And further that the said Walter Ralegh, homes on a new soil. His colony of husbands and... shall have... all the soile of all such wives, mothers and nursing children ... repre- lands, territories, and Countreis, so to bee sents a new departure in English history.” See, discovered and possessed as aforesaide, and C. M. pncrews, Our earnest Colonial Settle- of all such Cities, castles, townes, villages, ee Widen Se Wet Reiame™® and places in the same, with the ight Creighton, Sir Walter Raleigh; I. N. Tarbox, Sir royalties, franchises, and Jurisaictions, as well Walter Raleigh; W. Stebbing, Sir Walter Raleigh; ™Atine as other within the saide landes, or

:1))’

E. Edwards, Life of Ralegh; E. J. Payne, ed, Countreis, or the seas thereunto adjoining, Voyages of the Elizabethan Seamen to America, to be had, or used, with full power to dis-

1880 ed. pose thereof, and of every part in fee-simple

| ELIZABETH, by the Grace of God of otherwise, according to the order of the England, Fraunce and Ireland Queene, de- lawes of E ngland, ++? reserving always fender of the faith, &c. To all people to 2 .. Guties, and demaundes, the Alt part whome these presents shall come, greeting. of all the oare of golde and silver, that from

Knowe yee that of our especial grace, time to time, and at all times ... shal be certaine science, and meere motion, ... there gotten and obtained: . . . we give and graunt to our trustie and wel- And moreover, we doe... give and beloved servant Walter Ralegh, Esquire, and graunt licence to the said Walter Ralegh,

to his heires assignes for ever, free libertie ... that he, ... shall and may... for

and licence from time to time, and at all his and their defence, encounter and expulse, times for ever hereafter, to discover, search, repell and resist... all . . . as without the finde out, and view such remote, heathen _ especiall liking and licence of the said Walter and barbarous lands, countries, and territo- Ralegh, ... shall attempt to inhabite within ries, not actually possessed of any Christian the said Countrels, . . . or within the space Prince, nor inhabited by Christian People, of two hundreth leagues neere to the place

CHARTER TO SIR WALTER RALEGH 7 or places within such Countreis, ... where league and amitie with us, our heires and the saide Walter Ralegh, ... shall within successors, and that upon such injury, or

sixe yeeres ... make their dwellings... . upon just complaint of any such prince,

And for uniting in more perfect league and ruler, governoir, or estate, or their subjects, amitie, of such Countreis, landes, and ter- wee, our heires and successours, shall make ritories so to bee possessed and inhabited as open proclamation within any the portes of

aforesaide with our Realmes of Englande, our Realme of England, that the saide

and Ireland, and the better incouragement Walter Ralegh, his heires and assignes, and of men to these enterprises: we do ... de- adherents, or any to whome these our letters clare that all such Countreis, so hereafter to patents may extende, shall within the termes be possessed and inhabited as is aforesaide, to be limitted, by such proclamation, make from thencefoorth shall bee of the allegiance full restitution, and satisfaction of all such of us, our heires and successours. And wee’ injuries done, so as both we and the said doe graunt to the saide Walter Ralegh, princes, or other so complayning, may holde . . . and to all and every of them, ... that us and themselves fully contented. And that

they ... being either borne within our if the saide Walter Ralegh, his heires and

saide Realmes of Englande, ... shall and assignes, shall not make or cause to be made may have all the priviledges of free Deni- satisfaction accordingly, within such time so

zens, and persons native of England... . te be limitted, that then it shall be lawfull And... we... do give and graunt to’ to us our heires and successors, to put the the said Walter Ralegh,... that hee... saide Walter Ralegh, his heires and assignes shall, within the said mentioned remote and adherents, and all the inhabitants of the landes . . . have full and meere power and said places to be discovered (as is aforesaide) authoritie to correct, punish, pardon, governe, or any of them out of our allegiance and

and rule by their and every or any of their protection, and that from and after such good discretions and pollicies, as well in’ time of putting out of protection the said causes capital, or criminall, as civil, ... all Walter Ralegh, his heires, assignes and ad- , such our subjects as shall from time to time herents, and others so to be put out, and adventure themselves in the said journies the said places within their habitation, posor voyages, or that shall at any time here- session and rule, shal be out of our alafter inhabite any such landes, countreis, or legeance and protection, and free for all territories as aforesaide, .. . according to princes and others, to pursue with hostilitie, such statutes, lawes and ordinances, as shall as being not our subjects, nor by us any bee by him the saide Walter Ralegh ... way to be avouched, maintained or defended, devised, or established, for the better govern- nor to be holden as any of ours, nor to our

ment of the said people as aforesaid. So protection or dominion, or allegiance any always as the said statutes, lawes, and way belonging, for that expresse mention of ordinances may be as neere as conveniently the cleer yeerely value of the certaintie of may be, agreeable to the forme of the lawes, the premisses, or any part thereof, or of statutes, governement, or pollicie of Eng- any other gift, or grant by us, or any our

land, ... progenitors, or predecessors to the said

Provided alwayes, and our will and pleas- Walter Ralegh, before this time made in ure 1s, and wee do hereby declare to all these presents be not expressed, or any other Christian kings, princes and states, that if grant, ordinance, provision, proclamation, or the saide Walter Ralegh, his heires or as- restraint to the contrarye thereof, before signes, or any of them, or any other by their this time given, ordained, or provided, or _ licence or appointment, shall at any time any other thing, cause, or matter whatsoor times hereafter, robbe or spoile by sea ever, in any wise notwithstanding. In witness

or by lande, or do any acte of unjust or whereof, we have caused these our letters

unlawful hostilitie, to any of the subjects of to be made patents. Witnesse our selves, at us, our heires or successors, or to any of the Westminster, the 25. day of March, in the Subjects of any the kings, princes, rulers, sixe and twentieth yeere of our Raigne. governors, or estates, being then in perfect

8 DOCUMENTS OF AMERICAN HisTorRy 6. FIRST CHARTER OF VIRGINIA April 10, 1606

(Poore, ed. The Federal and State Constitutions, Part II, p. 1889 ff.) The charter to the Virginia Company granted and the Islands thereunto adjacent, or within by King James provided for the incorporation one hundred Miles of the Coast thereof; of two companies: the London Company and And to that End, and for the more speedy

the Plymouth Company. ft was the London Accomplishment of their said intended

Company that established the first permanent Plantation and Habitation there, are desirEnglish colony in America; the expedition of _ . one hundred and twenty settlers who left Eng- 2US to divide themselves Into two several land in December, 1606, made their first landfall Colonies and Companies; The one consist-

at Cape Henry, April 29, 1607, and planted a ng of certain Knights, Gentlemen, Mercolony at Jamestown May 14. On the three chants, and other Adventurers, of our City charters of Virginia and the early history of the of London and elsewhere, which are, and Colony see, W. Stith, History of Virginia, with from time to time shall be, joined unto numerous documents; A. Brown, Genesis of the them, which do desire to begin their Planta-

United jatew 2 Vols; Ay Brown, ea repo ic tion and Habitation in some fit and conmn america, J. PISke, ree ne er NeE- venient Place, between four and thirty and Pours, 1 dmnerican "History vel T nan one and forty Degrees of the said Latitude, Tyler, England in America, chs. iii-v. The records alongst the Coasts of Virginia and Coasts of the Virginia Company are being published by Of America aforesaid; And the other consist-

S. M. Kingsbury, ed. Records of the Virginia ing of sundry Knights, Gentlemen, MerCompany. On the Company see also A. Brown, chants, and other Adventurers, of our Cities English Politics in Early Virginia History; E.D. of Bristol and Exeter, and of our Town of Neill, History of the Virginia Company of Lon- Plimouth, and of other Places, which do don, and W. F. Craven, The Dissolution of the join themselves unto that Colony, which do

Virginia Company. desire to begin their Plantation and Habita-

I. JAMES, by the Grace of God, King of tion in some fit and convenient Place, beEngland, Scotland, France, and Ireland, De- tween eight and thirty Degrees and five and fender of the Faith, &. WueEreas our loving forty Degrees of the said Latitude, all alongst

and well-disposed Subjects, Sir Thomas the said Coast of Virginia and America, as

Gates, and Sir George Somers, Knights, that Coast lyeth:

Richard Hackluit, Clerk, Prebendary of We, greatly commending, and graciously Westminster, and Edward-Maria Wingfield, accepting of, their Desires for the FurtherThomas Hanham, and Ralegh Gilbert, Esqrs. ance of so noble a Work, which may, by William Parker, and George Popham, Gentle- the Providence of Almighty God, hereafter men, and divers others of our loving Sub- tend to the Glory of his Divine Majesty, in jects, have been humble Suitors unto us, propagating of Christian Religion to such that We would vouchsafe unto them our People, as yet live in Darkness and miseraLicence, to make Habitation, Plantation, ble Ignorance of the true Knowledge and and to deduce a Colony of sundry of our Worship of God, and may in time bring the People into that Part of America, commonly _ Infidels and Savages, living in those Parts, called VirciniA, and other Parts and Terri- to human Civility, and to a settled and quiet

tories in America, either appertaining unto Government; Do, by these our Letters us, or which are not now actually possessed Patents, graciously accept of, and agree to, by any Christian Prince or People, situate, their humble and well-intended Desires; lying, and being all along the Sea Coasts, AND do therefore, for Us, our Heirs, and

between four and thirty Degrees of North- Successors, GRANT and agree, that the erly Latitude from the Equinoctial Line, and _ said Sir Thomas Gates, Sir George Somers, five and forty Degrees of the same Latitude, Richard Hackluit, and Edward-Maria Wing-

and in the main Land between the same _ field, Adventurers of and for our City of four and thirty and five and forty Degrees, London, and all such others, as are, or shall

First CHARTER OF VIRGINIA 9 be, joined unto them of that Colony, shall Provided always, and our will and Pleasbe called the first Colony; And they shall ure herein is, that the Plantation and Habitaand may begin their said first Plantation and tion of such of the said Colonies, as shall Habitation, at any Place upon the said Coast last plant themselves, as aforesaid, shall not

of Virginia or America, where they shall be made within one hundred like English think fit and convenient, between the said Miles of the other of them, that first began four and thirty and one and forty Degrees to make their Plantation, as aforesaid. of the said Latitude; And that they shall ANpD we do also ordain . . . that each of have all the Lands, . .. from the said first the said Colonies shall have a Council, which

Seat of their Plantation and Habitation by shall govern and order all Matters and

the Space of fifty Miles of English Statute Causes, which shall arise, grow, or happen, Measure, all along the said Coast of Virginia to or within the same several Colonies, acand America, towards the West and South- cording to such Laws, Ordinances, and Inwest, as the Coast lyeth, ... And also all structions, as shall be, in that behalf, given the Lands . . . from the said Place of their and signed with Our Hand or Sign Manual, first Plantation and Habitation for the space and pass under the Privy Seal of our Realm of fifty like English Miles, all alongst the of England; Each of which Councils shall said Coast of Virginia and America, towards consist of thirteen Persons, to be ordained,

the East and Northeast, or towards the made, and removed, from time to time, North, as the Coast lyeth, . . . And also all according as shall be directed and comprised

the Lands ... from the same fifty Miles in the same instructions... . every way on the Sea Coast, directly into Anp that also there shall be a Council the main Land by the Space of one hundred established here in England, which shall, in

like English Miles; ... like Manner, consist of thirteen Persons, AND we do likewise . . . GRANT and agree, to be, for that Purpose, appointed by Us,

that the said Thomas Hanham, and Ralegh ... which shall be called our Council of Gilbert, William Parker, and George Pop- Virginia; And shall, from time to time, have ham, and all others of the Town of Pli- the superior Managing and Direction, only mouth in the County of Devon, or elsewhere, of and for all Matters, that shall or may which are, or shall be, joined unto them of concern the Government, as well of the said that Colony, shall be called the second several Colonies, as of and for any other Part Colony; And that they shall and may begin or Place, within the aforesaid Precincts of their said Plantation and Seat of their first four and thirty and five and forty Degrees,

Abode and Habitation, at any Place upon above mentioned... . the said Coast of Virginia and America, AND moreover, we do GRANT... . that where they shall think fit and convenient, the said several Councils, of and for the between eight and thirty Degrees of the said several Colonies, shall and lawfully may, said Latitude, and five and forty Degrees by Virtue hereof, from time to time, with-

of the same Latitude; And that they shall out any Interruption of Us... , give and have all the Lands .. . from the first Seat take Order, to dig, mine, and search for all of their Plantation and Habitation by the Manner of Mines of Gold, Silver, and Cop-

Space of fifty like English Miles, as is per, as well within any part of their said

aforesaid, all alongst the said Coast of Vir- several Colonies, as for the said main Lands

ginta and America, towards the West and on the Backside of the same Colonies... . Southwest, or towards the South, ...And Yue LpING therefore, to Us .. . the fifth Part also all the Lands . .. from the said Place only of all the same Gold and Silver, and of their first Plantation and Habitation for the fifteenth Part of all the same Copper, the Space of fifty like Miles, all alongst the so to be gotten or had... . said Coast of Virginia and America, towards Giving and granting, by these Presents,

the East and Northeast, ... And also all unto the said Sir Thomas Gates ... and the Lands ... from the same fifty Miles their Associates of the said first Colony, every way on the Sea Coast, directly into and unto the said Thomas Hanham ... . the main Land, by the Space of one hundred and their Associates of the said second

like English Miles... . Colony ... Power and Authority to take

10 DOCUMENTS Or AMERICAN History and surprise, by all Ways and Means what- Also we do... Decrare... that all soever, all and every Person and Persons, and every the Persons, being our Subjects, with their Ships, Vessels, Goods and other which shall dwell and inhabit within every Furniture, which shall be found trafficking, or any of the said several Colonies and

into any Harbour or Harbours, Creek or Plantations, and every of their children, Creeks, or Place, within the Limits or Pre- which shall happen to be born within any cincts of the said several Colonies and of the Limits and Precincts of the said sevPlantations, not being of the same Colony, eral Colonies and Plantations, shall Have and until such time, as they, being of any Realms enjoy all Liberties, Franchises, and Immunior Dominions under our Obedience, shall pay, ties, within any of our other Dominions, to

or agree to pay, to the Hands of the Treas- all Intents and Purposes, as if they had urer of that Colony, within whose Limits been abiding and born, within this our and Precincts they shall so traffick, two and Realm of England, or any other of our said a half upon every Hundred, of any thing,so Dominions... . by them trafficked, bought, or sold; And And finally, we do . . . Grant and agree, being Strangers, and not Subjects under our to and with the said Sir Thomas Gates... Obeysance, until they shall pay five upon and all others of the said first Colony, that every Hundred, of such Wares and Merchan- We... . , upon Petition in that Behalf to

dises, as they shall traffick, buy, or sell, be made, shall, ... Give and Grant unto within the Precincts of the said several such Persons, their Heirs, and Assigns, as

Colonies, wherein they shall so traffick, buy, the Council of that Colony, or the most or sell, as aforesaid; WHiIcH Sums of Money, Part of them, shall, for that Purpose nomior Benefit, as aforesaid, for and during the nate and assign, all the Lands, Tenements, Space of one and twenty Years, next ensu- and Hereditaments, which shall be within the ing the Date hereof, shall be wholly em- Precincts limited for that Colony, as is aforeploied to the Use, Benefit, and Behoof of said, To BE HOLDEN of Us, our Heirs, and

the said several Plantations, where such Traf- Successors, as of our Manor at Eastfick shall be made; And after the said one Greenwich in the County of Kent, in free and twenty Years ended, the same shall be and common Soccage only, and not in Ca-

taken to the Use of Us. ... pite: ...

7. SECOND CHARTER OF VIRGINIA May 23, 1609 (Poore, ed. The Federal and State Constitutions, Part II, p. 1893 ff.) During the first three years of its history the af- such Counsellors, and other Officers, may be fairs of the Virginia Company, both the Virginia appointed amongst them, to manage and and the Maine plantations, were badly misman- direct their affairs, as are willing and ready

aged. The second charter made some essential to adventure with them, as also whose epee ne ete Tongan nd ie Pb Dyelings are not so far remote from th

cil was replaced by a company council ; and con- City of London, but that they may, at trol of the colony was vested in the treasurer COMVenlent Times, be ready at Hand, to give and his council. For references, see Doc. No. 6. their Advice and Assistance, upon all occasions requisite.

[After reciting the grant of 1606, the WE... do... Give, Grant, and Con-

charter continues]. firm, to our trusty and well-beloved Subjects,

Now, forasmuch as divers and sundry of [enumerates grantees] . . . , and to such, and our loving Subjects, as well Adventurers, as so many, as they do, or shall hereafter, Planters, of the said first Colony ... have admit to be joined with them, in form hereof late been humble Suitors unto Us, that after in these presents expressed, whether .. . We would be pleased to grant them a_ they go in their Persons, to be Planters further Enlargement and Explanation of the — there in the said Plantation, or whether they said Grant, Privileges, and Liberties, and that go not, but adventure their monies, goods,

SECOND CHARTER OF VIRGINIA 11 or Chattels, that they shall be one Body _ structions, Forms, and Ceremonies of Govor Commonalty perpetual, and shall have ernment and Magistracy, fit and necessary, perpetual Succession, and one common Seal, for and concerning the Government of the to serve for the said Body or Commonalty, said Colony and Plantation; And the same, and that they, and their Successors, shall at all times hereafter, to abrogate, revoke, or be known, called, and incorporated by the change, ... as they, in their good DiscreName of, The Treasurer and Company of tion, shall think to be fittest for the Good

Adventurers and Planters of the City of of the Adventurers and _ inhabitants

London for the first Colony in Virginia. ... there... . And we do also .. . give, grant and con- AND we do further ... ORDAIN and firm, unto the said Treasurer and Company, — establish, that the said Treasurer and Council and their Successors, under the Reservations, here resident, and their Successors, or any Limitations, and Declarations, hereafter ex- four of them, being assembled (the Treasurer pressed, all those Lands, Countries, and Ter- being one) shall, from time to time, have

ritories, situate, lying, and being, in that full Power and Authority, to admit and rePart of America called Virginia, from the ceive any other Person into their Company, Point of Land, called Cape or Point Com- Corporation, and Freedom; And further, in fort, all along the Sea Coast, to the North- a General Assembly of the Adventurers, ward two hundred Miles, and from the said with the Consent of the greater Part, upon Point of Cape Comfort, all along the Sea good Cause, to disfranchise and put out any Coast, to the Southward two hundred Miles, Person or Persons, out of the said Freedom and all that Space and Circuit of Land, lying or Company... .

from the Sea Coast of the Precinct aforesaid, Atso we do... DECLARE... that all

up into the Land, throughout from Sea to and every the Persons being our Subjects,

Sea, West, and Northwest; .. . which shall go and inhabit within the AND forasmuch, as the good and prosper- said Colony and Plantation, and every their ous Success of the said Plantation cannot but Children and Posterity; which shall happen chiefly depend, next under the Blessing of to be born within any of the Limits thereof,

God, and the Support of our Royal Author- shall Have and Enjoy all Liberties, Franity, upon the provident and good Direction chizes, and Immunities of Free Denizens and

of the whole Enterprize, by a careful and natural Subjects within any of our other understanding Council, and that it is not con- Dominions to all Interests and Purposes, as venient, that all the Adventurers shall be so if they had been abiding and born within this

often drawn to meet and assemble, as shall ourrealm of England... . be requisite for them to have Meetings and ANbD forasmuch, as it shall be necessary Conference about the Affairs thereof; There- for all such our loving Subjects, as shall in-

fore we Do Orpatn, establish, and con- habit within the said Precincts of Virginia, firm, that there shall be perpetually one aforesaid, to determine to live together, in ‘CouNcIL here resident, according to the the Fear and true Worship of Almighty God, Tenour of our former Letters-patents. ... Christian Peace, and civil Quietness, each

AND further ...we do... Gutve and with other, whereby every one may, with

GRANT full Power and Authority to our said more Safety, Pleasure, and Profit, enjoy that,

Council, here resident, ...to nominate, whereunto they shall attain with great Pain

make, constitute, ordain, and confirm, by and Peril; We...do Give and Grant

such Name or Names, Stile or Stiles, as to unto the said Treasurer and Company, . . . them shall seem good, And likewise to revoke, and to such Governors, Officers, and Minis-

discharge, change, and alter, as well all and ters, as shall be, by our said Council, consingular Governors, Officers, and Ministers, stituted and appointed, . . . that they shall which already have been made, as also which and may, from time to time for ever herehereafter shall be by them thought fit and after, within the said Precincts of Virginia, needful to be made or used, for the Govern- ... have full and absolute Power and Aument of the said Colony and Plantation: thority, to correct, punish, pardon, govern,

AnD also to make, ordain, and establish all and rule, all such the Subjects of Us... Manner of Orders, Laws, Directions, In- as shall, from time to time, adventure them-

12 DocUMENTS OF AMERICAN HISTORY selves in any Voyage thither, or that shall, is the Conversion and Reduction of the at any time hereafter, inhabit in the Precincts People in those Parts unto the true Worship

and Territories of the said Colony, ... of God and Christian Religion, in which ANp further... in all Questions and Respect we should be loath, that any Person Doubts that shall arise upon any Difficulty should be permitted to pass, that we sus-

of Construction or Interpretation of Any pected to affect the Superstitions of the thing contained either in this, or in our Church of Rome, we do hereby DE&cCLARE, former Letters-patents, the same shallbe ... that it is our Will and Pleasure, that none interpreted in most ample and beneficial be permitted to pass in any Voyage, from manner for the said Treasurer and Com-_ time to time to be made into the said Coun-

pany... try, but such, as first shall have taken the Anp lastly, because the principal Effect, Oath of Supremacy; ...

which we can desire or expect of this Action,

8. THE THIRD CHARTER OF VIRGINIA March 12, 1612 (F. N. Thorpe, ed. Federal and State Constitutions, Vol. VII, p. 3803 ff.) The third charter of Virginia added the island of some other Matters and Articles concerning Bermuda, which had been discovered by the Eng-__ the better government of the said Company lish in 1609, to the jurisdictions of the Company, and Colony, .. .

provided for more democratic government and We therefore... do by these Presents a greater degree of independence for the Com- give, grant, and confirm to the said Treaspany, enlarged the powers of the Company, and instituted a lottery. The Company subsequently urer and Company of Adventurers and sold Bermuda. This charter of 1612 was annulled Planters of the city of London for the first in 1624, when Virginia became a royal colony. Colony in Vzirgia and to their Heirs and See, references under Doc. 6 and W. F. Craven, Successors for ever, all and singular those The Dissolution of the Virginia Company. Islands whatsoever situate and being in any Part of the Ocean Seas bordering upon the

_. . Now forasmuch as we are given to Coast of our said first Colony in Virgina, understand, that in those Seas adjoining to and being within three Hundred Leagues of the said Coasts of Virginia, and without the any of the Parts heretofore granted to the Compass of those two hundred Miles by Us said Treasurer and Company in our said so granted unto the said Treasurer and Com- former Letters-patents as aforesaid, and pany as aforesaid, and yet not far distant being within or between the one-and-fortieth from the said Colony in Virginia, there are and thirtieth Degrees of Northerly Latitude or may be divers Islands lying desolate and... Provided always, that the said Islands uninhabited, some of which are already made or any Premises herein mentioned, or by

known and discovered by the Industry, these Presents intended or meant to be

Travel, and Expences of the said Company, granted, be not actually possessed or inand others also are supposed to be and remain habited by any other Christian Prince or as yet unknown and undiscovered, all and Estate, nor be within the Bounds, Limits, or every of which it may import the said Colony ‘Territories of the Northern Colony heretoboth in Safety and Policy of Trade to popu- fore by Us granted to be planted by divers

late and plant; in Regard whereof, as well of our loving Subjects in the North Parts for the preventing of Peril, as for the better of Virginia... . Commodity of the said Colony, they have And we do hereby ordain and grant by been humble suitors unto Us, that We would these Presents, that the said Treasurer and be pleased to grant unto them an Enlarge- Company of Adventurers and Planters aforement of our said former Letters-patents, as said, shall and may, once every week, or well for a more ample Extent of their Limits oftener, at their Pleasure, hold, and keep and Territories into the Scas adjoining to a Court and Assembly for the better Order and upon the Coast of Virginia, as also for and Government of the said Plantation, and

ORDINANCE FOR VIRGINIA 13 such Things as shall concern the same: And _ said, taken, held, and reputed to be, and that any five Persons of our Council for the shall be a sufficient Court of the said Comsaid first Colony in Virginia, for the Time pany, for the handling and ordering, and disbeing, of which Company the Treasurer, or patching of all such casual and particular his Deputy, to be always one, and the Num- Occurrences, and accidental Matters, of less ber of fifteen others, at the least, of the Consequence and Weight, as shall from Time Generality of the said Company, assembled to Time happen, touching and concerning together in such Manner, as is and hath been the said Plantation... . heretofore used and accustomed, shall be

9. ORDINANCE FOR VIRGINIA July 24, 1621 (F. N. Thorpe, ed. Federal and State Constitutions, Vol. VII, p. 3810 ff.) The first Assembly of Virginia was convened II. We therefore, the said ‘Treasurer, July 30, 1619 by Governor Yeardley, under the Council, and Company, by Authority diauthority of the Virginia Company, and marks rected to us from his Majesty under the ne beginning of representative government In Great Seal, upon mature Deliberation, do America. The document authorizing the conven- hereby order and declare, that, from hence

ing of this first assembly has been lost; the Or- , , dinance of 1621 is believed to be an almost exact forward, there shall be Two SUPREME COoUNreproduction of the earlier one. See references to CLS In Virginia, for the better Government of

Doc. No. 6. the said Colony aforesaid.

III. The one of which Councils, to be An ordinance and Constitution of the called THE CounciL or STATE (and ©

Treasurer, Council, and Company in England, whose Office shall chiefly be assisting, with for a Council of State and General Assembly. their Care, Advise, and Circumspection, to

Dated July 24, 1621. the said Governor) shall be chosen, nomi-

To all People, to whom these Presents nated, placed and displaced, from time to

shall come, be seen, or heard The Treasurer, time, by Us, the said Treasurer, Council, and Council, and Company of Adventurers and Company, and our Successors: Which Coun-

Planters for the City of London for the il of State shall consist, for the present, only first colony of Virginia, send Greeting. Know of these Persons, as are here inserted, viz. ye that we, the said Treasurer, Council, and ‘Sir Francis Wyat, Governor of Vzrginia, Company, taking into our careful Considera- Captain Francis West, Sir George Yeardley, tion the present State, of the said Colony of Knight, Sir Wiliam Neuce, Knight Marshal Virginia, and intending, by the Divine As- of Virginia, Mr. George Sandys, Treasurer, sistance, to settle such a Form of Govern- Mr. George Thorpe, Deputy of the College,

ment there as may be to the greatest Bene- Captain Thomas Neuce, Deputy for the fit and Comfort of the People, and whereby Company, Mr. Pawlet, Mr. Leech, Captain all Injustice, Grievances, and Oppression may Nathaniel Powel, Mr. Harwood, Mr. Samuel

be prevented and kept off as much as pos- Macock, Mr. Christopher Davison, Secresible from the said Colony, have thought fit tary, Doctor Pots Physician to the Company, to make our Entrance, by ordering and es- Mr. Roger Smith, Mr. John Berkley, Mr. tablishing such Supreme Councils, as may John Rolfe, Mr. Ralph Hamer, Mr. John not only be assisting to the Governor for Poutis, Mr. Michael Lapworth. Which said the time being, in the Administration of Counsellors and Council we earnestly pray Justice, and the executing of other Duties and desire, and in his Mayjesty’s Name for this office belonging, but also, by their strictly charge and command, that (all Facvigilant care and Prudence, may provide, as__ tions, Partialities, and sinister Respect laid well for a Remedy of all Inconveniences, aside) they bend their Care and Endeavors growing from time to time, as also for ad- to assist the said Governor; first and prinvancing of Increase, Strength, Stability, and cipally in the Advancement of the Honour

Prosperity of the said Colony: and Service of God, and the Enlargement

14 DOCUMENTS OF AMERICAN HISTORY of his Kingdom amongst the Heathen People; time to time, appear necessary or requisite;

and next, in erecting of the said Colony in V. Whereas in all other Things, we redue obedience to his Majesty, and all law- quire the said General Assembly, as also the ful Authority from his Majesty’s Directions; said Council of State, to imitate and follow and lastly, in maintaining the said People the Policy of the Form of Government—

in Justice and Christian Conversation Laws, Customs, and Manner of Trial, and amongst themselves, and in Strength and other Administration of Justice, used in the Ability to withstand their Enemies. And Realm of England, aS near as may be, even this Council, to be always, or for the most as ourselves, by his Majesty’s Letters Patent, Part, residing about or near the Governor. are required. IV. The other Council, more generally to VI. Provided, that no Law or Ordinance, be called by the Governor, once yearly, and made in the said General Assembly, shall be no oftener, but for very extraordinary and or continue in Force or Validity, unless the important occasions, shall consist, for the same shall be solemnly ratified and conpresent, of the said Council of State, and of firmed, in a General Quarter Court of the two Burgesses out of every Town, Hundred, said Company here in England and so ratior other particular Plantation, to be respec- fied, be returned to them under our Seal ; tively chosen by the Inhabitants; Which It being our Intent to afford the like MeasCouncil shall be called THe GerneERAL ure also unto the said Colony, that after ASSEMBLY, wherein (as also in the said the Government of the said Colony shall Council of State) all Matter shall be de- once have been well framed, and settled cided, determined, and ordered, by the accordingly, which is to be done by Us, as greater Part of the Voices then present; re- by Authority derived from his Majesty, and serving to the Governor always a Negative the same shall have been so by Us declared, Voice. And this General Assembly shall have no Orders of Court afterwards shall bind free Power to treat, consult, and conclude, the said Colony, unless they be ratified in as well of all emergent Occasions concern- like Manner in the General Assemblies. IN ing the Publick Weal of the said Colony and Wurness whereof we have here unto set every Part thereof, as also to make, ordain, our Common Seal, the 24th of July 1621, and enact such general Laws and Orders, and in the Year of the Reign of our Soverfor the Behoof of the said Colony, and the eign Lord, JAMES, King of England, &c., good Government thereof, as shall, from the —— and of Scotland the ——

10. THE LEYDEN AGREEMENT 1618

(W. Walker, The Creeds and Platforms of Congregationalism, p. 89-90.) A group of London Separatists had settled in sis of the New England C hurches; H. M. Dexter, Amsterdam as early as 1593. In 1607-08 Sepa- Congregationalism of the Last Three Hundred ratists from the Scrooby Congregation joined the Years as Seen in its Literature, Lectures v-vii; congregation in Amsterdam, but shortly moved A. E. Dunning, Congregationalists in America, to Leyden. In 1617 the Scrooby-Leyden group ch. iii; G. Bancroft, in New York Hist. Soc. determined to move to America and applied to Collections, Second Ser. Vol. III; D. Plooij, The the Virginia Company for a patent to land in Pilgrim Fathers from a Dutch Point of View. Virginia. To further this application, the congre-

gation drew up these Seven Articles as assurance Seven Artikes which ye Church of Leyden to the King of loyalty and orthodoxy. The King sent to ye Counsell of England to bee conhowever promised only that “he would connive gidered of in respeckt of their judgements at them and not molest them provided they car- occationed about theer going to Virginia ried themselves peaceably.” Eventually they se- Anno 1618 cured a patent from the Virginia Company. See

oc. No. 11. On the Leyden Agreement and the

Scrcoby-Leyden Congregation eee W. Bradford, 1. To ye confession of fayth published in History of the Plymouth Plantation; J.E.Good- ye hame of ye Church of England & to every win, The Pilgrim Republic; L. Bacon, The Gene- artikell theerof wee do wt" ye reformed

THE MAYFLOWER COMPACT 15 churches wheer wee live & also els where according to ye Lawes of ye Land, untto

assent wholy. whom ye ar in all thinges to give an account 2. As wee do acknolidg ye docktryne of & by them to bee ordered according to

fayth theer tawght so do wee ye fruites and Godlynes. . effeckts of ye same docktryne to ye beget- 5. The authoryty of ye present bishops in ting of saving fayth in thousands in ye land ye Land wee do acknowlidg so far forth as (conformistes and reformistesasye are called) ye same is indeed derived from his Majesty

wth whom also das wt" our bretheren wee untto them and as ye proseed in his name, do desyer to keepe sperituall communion whom we will also theerein honor in all in peace and will pracktis in our parts all things and hime in them.

lawfull thinges. 6. Wee beleeve yt no sinod, classes, convoca3. The Kings Majesty wee acknoledge for tion or assembly of Ecclesiasticall officers Supreame Governer in his Dominion in all hath any power or awthoryty att all but as

causes and over all parsons, and ye none ye same by ye Mayjestraet geven unto maye decklyne or apeale from his authority them. or judgement in any cause whatsoever, byt 7. And lastly, wee desyer to geve untto all y in all thinges obedience is dewe unto him, Superiors dew honnor to preserve ye untly ether active, if ye thing commanded be _ of ye speritt w'® all ye feare God, to have not agaynst God’s woord, or passive yf itt peace w' all men what in us lyeth & wheerin

bee, except pardon can bee obtayned. wee err to bee instructed by any.

4. Wee judg itt lawfull for his Mayjesty to Subscribed by apoynt bishops; civill overseers, or officers John Robinson in awthoryty onder hime, in ye severall prov- and Inces, dioses, congregations or parrishes to Willyam Bruster oversee ye Churches and governe them civilly

11. THE MAYFLOWER COMPACT November 11, 1620

(Poore,ed. The Federal and State Constitutions, Part I, p. 931.) The Separatists living in Leyden, Holland, de- mies in America, Vol. II, pt. I; E. Eggleston, The sired for various reasons to transplant their col- Begznners of a Nation; J. T. Adams, The Found-

ony to America. In 1619 they secured from the ing of New England; C. M. Andrews, The Virginia Company a patent for a private planta- Fathers of New England; C. M. Andrews, The tion. The Pilgrims, reinforced by some seventy Colonial Period of American History, Vol. I, persons from London, sailed from Plymouth in ch xiii; L. G. Tyler, England in America, ch. ix; September, 1620, and arrived off Cape Cod in H. L. Osgood, American Colonies in the SevNovember. Some of the London recruits were an enteenth Century, Vol. I; J. A. Goodwin, The “undesirable lot” and, Bradford tells us, boasted Pilgrim Republic; A. Lord, “The Mayflower that they were not under the jurisdiction of the Compact,” Proceedings of the Am. Antiquarian Virginia Company and “would use their owne Soc., 1921; A. C. McLaughlin, Foundations of libertie”. In order to establish some form of gov- American Constitutionalism, ch. i; V. L. Parernment, therefore, the Pilgrim leaders drew up __rington, The Colonial Mind, p. 16 ff.

the famous Mayflower Compact. The Compact P

was not intended as a constitution, but was an IN The Name of God, Amen. We, whose extension of the customary church covenant to names are underwritten, the Loyal Subjects civil circumstances. Inasmuch as the Plymouth of our dread Sovereign Lord King James, settlers were never able to secure a charter, the by the Grace of God, of Great Britain, Mayflower compact remained the only form of France, and Ireland, King, Defender of the constitution of the colony. See, W. Bradford, Faith, &c. Having undertaken for the Glory

History of the Plymouth various f Cod d Ad t ofofthe eds.; A. Young, Chronicles Plantation, of the Pilgrim 0% 700) an vancement theChrist; nristian

Fathers, 1602-25; E. Arber, ed. Story of the Pil- Faith, and the Honour of our King and grim Fathers, 1606-23; J. Fiske, Beginnings of Country, a Voyage to plant the first colony New England; J. G. Palfrey, History of New in the northern Parts of Virginia; Do by England, Vol. 1; J. A. Doyle, The English Colo- these Presents, solemnly and mutually in the

16 DocUMENTS OF AMERICAN HIstToRY Presence of God and one another, covenant Mr. Edward Winslow Thomas Williams and combine ourselves together into a civil Mr. William Brewster Gilbert Winslow

Body Politick, for our better Ordering and Isaac Allerton Edmund Margesson Preservation, and Furtherance of the Ends Miles Standish Peter Brown aforesaid; And by Virtue hereof do enact, John Alden Richard Bitteridge constitute, and frame, such just and equal John Turner George Soule Laws, Ordinances, Acts, Constitutions, and Francis Eaton Edward Tilly

Offices, from time to time, as shall be James Chilton John Tilly

thought most meet and convenient for the John Craxton Francis Cooke general Good of the Colony; unto which we John Billington Thomas Rogers promise all due Submission and Obedience. Joses Fletcher Thomas Tinker

In WITNESS whereof we have hereunto John Goodman John Ridgate subscribed our names at Cape Cod the Mr. Samuel Fuller Edward Fuller eleventh of November, in the Reign of our Mr. Christopher Richard Clark

Sovereign Lord King James of England, Martin Richard Gardiner

France, and Ireland, the eighteenth and of Mr. William Mullins Mr. John Allerton Scotland, the fifty-fourth. Anno Domini, Mr. William White Thomas English

1620 Mr. Richard Warren Edward Doten

Mr. John Carver Mr. Stephen Hopkins John Howland Edward Liester. Mr. William Bradford Digery Priest

12. THE FIRST CHARTER OF MASSACHUSETTS March 4, 1629 (F. N. Thorpe, ed. Federal and State Constitutions, Vol. IIT, p. 1846 ff.) In 1620 the survivors of the Plymouth Company Morison, Builders of the Bay Colony; F. Roseapplied to the crown for a charter for settlement Troup, The Massachusetts Bay Company and in New England, and were granted the land from its Predecessors; F. Rose-Troup, John White ; the 40th to the 48th parallel, under the name of the charter and other related source materia] the Council for New England. It was from this is in The Founding of Massachusetts, Mass. Hist. body that the Pilgrims secured their patent in Society, Proceedings, Vol. LXII. 1621. In 1623 the “Dorchester Adventurers” had

established a fishing settlement at Cape Ann; _CHARLES, BY THE GRACE OF GOD subsequently the Adventurers, under the leader- Kinge of England . . . [there follows a reship of the Rev. John White, secured from the ital of the patent of 1620 and the grant to Council for New England a patent to this terri- Sir Henry Rosewell of 1628, which grant tory. This company was enlarged, and under the _is by this charter confirmed, and continues: |

name of the Governor and Company of the AND FurRTHER, know yee,... Wee... Massachusetts Bay in New England secured the doe. - give and graunte vnto the saide royal charter of March 4, 1629. In as much as Sir Henry Rosewell, Sir John Younge, us mpan charter granted wevicusly granted to ney Sir Richard Saltonstall, Thomas Southcott, Council for New England, there was some doubt John Humfrey, John Endecott, Symon Whet-

about its legality. The Massachusetts Bay Com- combe, Isaak Johnson, Samuell Aldersey, pany had the support of the powerful Earl of John Ven, Mathewe Cradock, George HarWarwick, who was titular President of the Coun- wood, Increase Nowell, Richard P ery, Rich-

cil for New England. “Probably no one,” con- ard Bellingham, Nathaniel Wright, Samuell cludes Professor C. M. Andrews, “would deny Vassall, Theophilus Eaton, Thomas Goffe, that the charter of the Massachusetts Bay Com- Thomas Adams, John Browne, Samuell pany was covertly and even ‘surreptitiously’ ob- Browne, Thomas Hutchins, William Vassall, tained”. For the process by which the charter of = witjian, Pinchion, and George Foxcrofte, the Company became the constitution of a col- their Heires and Assignes, all that Part of ony, see Doc. No. 13. On the Charter, see, J. T. Newe England in America, which lyes and Andrews, Fathers of New England; J. Fiske, The extendes betweene a great River there,

Adams, The Founding of New England; C. M. :

Beginnings of New England; A. P. Newton, Col- comonlie called Monomack River, alias Meronizing Activities of the English Puritans; S.E. rimack River, and a certen other River there,

Tue First CHARTER OF MASSACHUSETTS 17 called Charles River, being in the Bottome to be from tyme to tyme constituted, of a certain Bay there, comonlie called elected and chosen out of the Freemen of the

Massachusetts,...; and also all and saide Company,... which said Officers

singuler those Landes and Hereditaments shall applie themselves to take care for the whatsoever, lying within the Space of Three _ best disposeing and ordering of the generall Englishe Myles on the South Parte of the buysines and Affaires of, for, and concerning

said River, called Charles River, ... also the said Landes and Premisses . . . and the all and singular the Landes... , lying and Government of the People there... . being within the Space of Three Englishe ANp FurTHER,... That the Governor Miles to the southward of the southermost of the saide Company .. . shall have Au-

Parte of the said Baye, called Massachu- thoritie from tyme to tyme... to give setts, ... . And also all those Landes and order for the assembling of the saide ComHereditaments whatsoever, which lye and be pany, and... saide Company, ... male within the Space of Three Englishe Myles once every Moneth, or oftener at their Pleasto the Northward of the saide River, called ures, assemble and houlde and keepe a Courte

Monomack, alias Merrymack, ... and all or Assemblie of themselves, for the better Landes and Hereditaments whatsoever, lye- ordering and directing of their Affaires, and ing within the Lymitts aforesaide, North and that any seaven or more persons of the As-

South, in Latitude and Bredth, and in Length sistants, togither with the Governor, or and Longitude, of and within all the Bredth Deputie Governor soe assembled, . . . shalbe aforesaide, throughout the mayne Landes a full and sufficient Courte or Assemblie of

there, from the Atlantick and Westerne the said Company,.. . and... WeE DoE Sea and Ocean on the Easte Parte, to the ... give and graunte... That the Gov-

South Sea on the West Parte; ...and ernor,... and six of the Assistants at

also all Islandes in America aforesaide, in the the least to be seaven, shall have full Power

saide Seas, . . . and all Mynes and Myner- and authoritie to choose, nominate, and apals as well Royal mynes of Gold and Silver pointe, such and soe many others as they _. . whatsoever, in the said Landes and — shall thinke fitt,. .. to be free of the said Premisses, . . . and free Libertie of fishing Company and Body, and them into the same in or within any the Rivers or Waters within ‘to admitt: and to elect and constitute such the Boundes and Lymytts aforesaid, and the Officers as they shall think fitt and requisite,

Seas therevnto adjoining; ... for the ordering, mannaging, and dispatching

Wee Have FurtHeR ... Given, graunted of the Affaires of the saide Governor and and confirmed, ... vnto Sir Henry Rose- Company, and their Successors; And to make well, [etc.], and all such others as shall Lawes and Ordinances for the Good and Wel-

hereafter be admitted... shall... be, fare of the saide Company, and for the Gov... one Body corporate anc politique in ernment and ordering of the saide Landes

Fact and Name, by the Name of the Gover- and Plantaton, and the People inhabiting

nor and Company of the Massachusetts ... the same, as to them from tyme to Bay in Newe-England, ... Wee doe... tyme shalbe thought meete,...

ordeyne, .. . that by that name they shall ANnpb, .. . Wee doe graunte to the saide, have perpetuall Succession, and... shall Governor and Company, ... That all and and maie be capeable and enabled aswell to every the Subiects of Vs, . . . which shall implead, and to be impleaded, and to prose-_ .. . inhabite within the saide Landes ... , cute, demaund, and aunswere, and be auns- shall have and enjoy all liberties and Immu-

weared vnto, in all and singuler Suites, nities of free and naturall Subjects within Causes, Querrells, and Accons, of what kinde any of the Domynions of Vs,...And... or nature soever. And also to have, take, it shall and maie be lawfull, to and for the possesse, acquire, and purchase any Landes, Governor ... and such of the Assistants Tenements, or Hereditaments, or any Goodes and Freemen of the said Company for the

or Chattells, ... Tyme being as shalbe assembled in any of AND FurTHER,... That... thereshalbe their generall Courts aforesaide, or in any one Governor, one Deputy Governor, and other Courtes to be specially sumoned and eighteene Assitants of the same Company, assembled for that Purpose, or the greater

18 DOCUMENTS OF AMERICAN HISTORY Parte of them... from tyme to tyme, to maie wynn and incite the Natives of Country, make, ordeine, and establishe all Manner of to the Knowledg and Obedience of the onlie wholesome and reasonable Orders, Lawes, true God and Sauior of Mankinde, and the Statutes, and Ordinnces, Direcéons, and In- Christian Fayth, which in our Royall Instruccons, not contrairie to the Lawes of this tencon, and the Adventurers free Profession, our Realme of England, aswell for setling is the principall Ende of this Plantacion. .. . of the Formes and Ceremonies of Governmt Witnes ourself, at Westminster, the fourth

and Magistracy, . . . and for the directing, day of March in the fourth Veare of our

... Of all other Matters and Thinges, Raigne.

whereby our said People, ... may be soe Per Breve de Privato Sigillo,

religiously, peaceablie, and civilly governed, Wolseley. as their good Life and orderlie Conversacon,

13. THE CAMBRIDGE AGREEMENT August 26, 1629 (T. Hutchinson, Collection of Original Papers relative to the History of the Colony of Massachusetts-Bay, p. 25 ff.) By this agreement some of the leading members ise and bind himselfe in the word of a chrisof the Massachusetts Bay Company bound them- tian and in the presence of God who is the

selves to embark for America and take the searcher of all hearts, that we will so really charter with them. The transfer of the charter endeavour the execution of this worke, as by

morphol inte. see Tee ete ROR. God's assistance we will be ready i drastic and probably illegal action was to secure OU Persons, and with such of our severall the enterprise from interference by the Govern- familyes as are to go with us, and such proment of England. For the significance of this Vision as we are able conveniently to furnish transfer of the charter see, C. M. Andrews, Our ourselves withall, to embarke for the said

Earliest Colonial Settlements, p. 67 ff.; C. M. plantation by the first of March next, ... Andrews, The Colonial Period of American His- at such port or ports of this land as shall be

tory, Vol. I, ch. xviii. agreed upon by the Companie, to the end to The True Coppie of the agreement at passe the seas (under God’s protection) to

Cambridge, August 26, 1629. inhabite and continue in New England. ProUpon due consideration of the state of the vided always, that before the last of Septemplantation now in hand for New England, ber next the whole government together with wherein wee (whose names are hereunto sub- the patent for the said plantation be first by scribed) have engaged ourselves: and having an order of court legally transferred and

weighed the greatnes of the worke in re- established to remain with us and others gard of the consequence, God’s glory and which shall inhabite upon the said plantation the churches good: As also in regard of the .-. . And we do further promise every one difficultyes and discouragements which in all for himselfe, that shall fayle to be ready

probabilityes must be forecast upon the ex- through his own default by the day ap-

ecution of this businesse: Considering withall pointed, to pay for every day’s default the that this whole adventure growes upon the sum of 3£ to the use of the rest of the Com-

joint confidenceherein, we haveso in as each whe shall be ready by the same day , elity and resolution noothers man pame and time.

of us “would have adventured it without as- This was done by order of court the 29th surance of the rest: Now, for the better en- of August, 1629. couragement of ourselves and others that shall joyne with us in this action, and to the Richard Saltonstall Tho: Sharp

end that every man may without scruple dis- Tho: Dudley Increase Nowell pose of his estate and afayres as may best William Vassall John Winthrop fitt his preparation for this voyage, it is fully Nicko: West Will: Pinchon and faithfully agreed amongst us, and every Isaack Johnson Kellam Browne of us doth hereby freely and sincerely prom- John Humfrey William Colbron

CHARTER OF FREEDOMS AND EXEMPTIONS 19 14. CHARTER OF FREEDOMS AND EXEMPTIONS TO PATROONS June 7, 1629 (E. B. O’Callaghan, ed. Documents Relative to the Colonial History of the State of New York, Vol. II, p. 553 ff.) This charter of privileges to the patroons estab- Company keep to themselves the lands lying lished the patroon system of land tenure in New and remaining between the limits of Colonies, Netherland and New York. Under this charter a to dispose thereof, when and at such time as

few patroons secured control of most of the they shall think proper, in such manner that land along the Hudson River; some of the land |, person shall be allowed to come within

grants, such as those to Killian Van Rensselaer, . . hej were enormous. On the Dutch settlement of New S%°VeM OF eight leagues of them without their

Netherland, see E. B. O’Callaghan, History of | Consent, unless the situation of the land thereNew Netherland, 2 Vols.; T. A. Janvier, Dutch about be such that the Commander and CounFounding of New York; A.C. Flick, ed. History cil, for good reasons, should order other-

of the State of New York, Vol. I, chs. vii-x; wise... .

C. W. Rife, “Land Tenure in New Netherland”; VI. They shall forever possess and enjoy Essays in Colonial History presented to C. M. all the lands lying within the aforesaid limits, Andrews, p. 41 ff.; H. L. Osgood, American Colo- together with the fruits, rights, minerals,

nies in the XVII century, Vol. II, ch. v. rivers and fountains thereof; as also the chief command and lower jurisdictions, fishing, Itt. All such shall be acknowledged fowling and grinding, to the exclusion of all Patroons of New Netherland who shall, others, to be holden from the Company as a within the space of four years next after perpetual inheritance, without it ever devolvthey have given notice to any of the Cham- ing again to the Company, and in case it bers of the Company here, or to the Com- should devolve, to be redeemed and reposmander or Council there, undertake to plant sessed with twenty guilders per Colonie, to be

a Colonie there of fifty souls, upwards of paid to this Company, at the Chamber here fifteen years old; one-fourth part within one or to their Commander there, within a year year, and within three years after the sending and six weeks after the same occurs, each at of the first, making together four years, the the Chamber where he originally sailed from; remainder, to the full number of fifty per- and further, no person or persons whatsoever

sons ... ; but it is to be observed that the shall be privileged to fish and hunt but the Company reserve the Island of the Man- Patroons and such as they shall permit. And

hattes to themselves. in case any one should in time prosper so

IV. They shall, from the time they make much as to found one or more cities, he shall known the situation of the places where they have power and authority to establish officers propose to settle Colonies, have the pref- and magistrates there, and to make use of the erence to all others of the absolute property _ title of his Colonie, acording to his pleasure of such lands as they have there chosen; but and to the quality of the persons. .. .

in case the situation should not afterwards X. The Patroons and colonists shall be please them, or they should have been mis- privileged to send their people and effects taken as to the quality of the land, they may, thither, in ships belonging to the Company, after remonstrating concerning the same to provided they take the oath, and pay to the the Commander and Council there, be at Company for bringing over the people, as

liberty to choose another place. mentioned in the first article. . . .

V. The Patroons, by virtue of their power, XII. Inasmuch as it is intended to people shall and may be permitted, at such places as__ the Island of the Manhattes first, all fruits and they shall settle their Colonies, to extend their wares that are produced on the lands situate

limits four leagues along the shore, that is, onthe North river, and lying thereabout, shall, on one side of a navigable river, or two leagues for the present, be brought there before being

on each side of a river, and so far into the sent elsewhere, .. . country as the situation of the occupiers will XIII. All the Patroons of Colonies in permit; provided and conditioned that the New Netherland, and of Colonies on the Is-

20 DOCUMENTS OF AMERICAN History land of Manhattes, shall be at liberty to sail XXI. In regard to such private persons as and traffic all along the coast, from Florida on their own account, . . . shall be inclined to Terra Neuf, provided that they do again to go thither and settle, they shall, with the return with all such goods as they shall get approbation of the Director and Council in trade to the Island of Manhattes, and pay there, be at liberty to take up and take posfive per cent duty to the Company, in order, session of as much land as they shall be able

if possible, that, after the necessary inven- properly to improve, ... tory of the goods shipped be taken, the same XXIII. Whosoever, whether colonists of

may be sent hither... . Patroons for their Patroons, or free persons XV. It shall be also free for the aforesaid for themselves, or others for their masters, Patroons to traffic and trade all along the shall discover any shores, bays or other fit coast of New Netherland and places cir- places for erecting fisheries, or the making cumjacent, with such goods as are consumed of salt ponds, they may take possession there, and receive in return for them all thereof, and begin to work on them as their sorts of merchandise that may be had there, own absolute property, to the exclusion of except beavers, otters, minks, and all sorts all others. And it is consented to that the of peltry, which trade the Company reserve Patroons of colonists may send ships along to themselves. But the same shall be per- the coast of New Netherland, on the cod mitted at such places where the Company fishery, .. . have no factories, conditioned that such XXXVI. Whoever shall settle any Colonie traders shall be obliged to bring all the peltry out of the limits of the Manhattes Island, they can procure to the Island of Manhattes, shall be obliged to satisfy the Indians for the

in case it may be, at any rate, practicable, land they shall settle upon, and they may and there deliver to the Director, to be by extend or enlarge the limits of their Colonies him shipped hither with the ships and goods; if they settle a proportionate number of or, 1f they should come here without going colonists thereon. there, then to give notice thereof to the Com- XXVIII. The Patroons and colonists shall pany, that a proper account thereof may be in particular, and in the speediest manner, taken, in order that they may pay to the endeavor to find out ways and means whereby Company one guilder for each merchantable they may support a Minister and Schoolbeaver and otter skin; the property, risk and master, that thus the service of God and all other charges remaining on account of zeal for religion may not grow cool and be

the Patroons or owners. neglected among them, and they shall, for the

XVI. All coarse wares that the Colonists first, procure a Comforter of the sick of the Patroons there shall consume, such as there... . pitch, tar, weed-ashes, wood, grain, fish, salt, XAIX. The Colonists shall not be perhearthstone and such like things shall be mitted to make any woolen, linen or cotton conveyed in the Company’s ships, at the cloth, nor weave any other stuffs there, on rate of eighteen guilders per last... . pain of being banished, and as perjurers, to XVIII. The Company promises the colo- be arbitrarily punished. nists of the Patroons that they shall be free XXX. The Company will use their enfrom customs, taxes, excise, imposts or any deavors to supply the colonists with as many

other contributions for the space of ten Blacks as they conveniently can, on the conyears; and after the expiration of the said ditions hereafter to be made, in such manner, ten years, at the highest, such customs as however, that they shall not be bound to do

the goods pay here for the present... . it for a longer time than they shall think XX. From all judgments given by the proper. Courts of the Patroons for upwards of fifty XXXII. The Company promise to finish guilders, there may be an appeal to the Com- the fort on the Island of the Manhattes, and panys Commander and Council in New _ to put it in a posture of defence without de-

Netherland, lay.

THE CHARTER OF MARYLAND 21 15. THE CHARTER OF MARYLAND

| June 20, 1632

(F. N. Thorpe, ed. Federal and State Constitutions, Vol. III, p. 1677 ff.) George Calvert, first Lord Baltimore, had at- Baron of Baltimore... all Islands and tempted to found a colony in Newfoundland, Islets within the Limits aforesaid, all and but discouraged by the uninviting character of singular the Islands and Islets, from the his grant there persuaded Charles I to grant him fastern Shore of the aforesaid Region, | a patent to land north of the Potomac. George towards the East, which have been, or shall Calvert died in April, 1632, and the charter was be formed in the Sea. situate within Ten issued to his son, Cecil, second Lord Baltimore. ; The charter of Maryland was modeled after the marine Leagues from the said Shore; ... : earlier charter to the Newfoundland plantation, And further more the Patronages, and AdAvalon, which was in turn modeled after the Vvowsons of all Churches which (with the incounty Palatine of Durham, a crown fief, the creasing Worship and Religion of Christ) powers of whose lord were second only to those within the said Region .. . , hereafter shall of the King. See, C. C. Hall, The Lords Balti- happen to be built, together with Licence, more and the Maryland Palatinate; M. P. An- and Faculty of erecting and founding drews, The Founding of Maryland; B.C. Steiner, Churches, Chapels, and Places of Worship, in Beginnings of Maryland; N. D. Mereness, Mary- . . pe land as a Proprietary Province; W. H. Browne, convenient and suitable Places within the

Georgius and Cecilius Calvert; B. C. Steiner, Premises, and of causing the same to be dedi“The First Lord Baltimore and his Colonial ¢ated and consecrated according to the EcProjects,’ American Hist. Assoc. Reports, 1905. clesiastical Laws of our Kingdom of England,

with all, and singular such, and as ample ... II. Whereas our well beloved and _ Rights, Jurisdictions, Privileges, Prerogatives, right trusty Subject Caecilius Calvert, Baron Royalties, Liberties, Immunities, and royal of Baltimore, in our Kingdom of Ireland, Rights, and Temporal Franchises whatsoever, ... being animated with a laudable, and as well by Sea as by Land, within the Region pious Zeal for extending the Christian Re- .. . aforesaid, to be had, exercised, used, ligion, and also the Territories of our Empire, and enjoyed, as any Bishop of Durham, hath humbly besought Leave of Us, that he within the Bishoprick or County Palatine of may transport, by his own Indnstry, and Ex- Durham, in our Kingdom of England, ever pence, a numerous Colony of the English heretofore, hath had, held, used, or enjoyed Nation, to a certain Region, herein after or of Right could, or ought to have, hold, use, described, in a Country hitherto uncultivated, or enjoy.

in the Parts of America, and partly occu- V. And We do by these Presents...

pied by Savages, having no Knowledge of Make, Create, and Constitute Him, the now the Divine Being, and that all that Region, Baron of Baltimore, and his Heirs, the True with some certain Privileges, and Jurisdic- and Absolute Lords and Proprietaries of the tions, appertaining unto the wholesome Gov- Region aforesaid, and of all other the Premernment, and State of his Colony and Region _ises (except the before excepted) saving alaforesaid, may by our Royal Highness be ways the Faith and Allegiance and Sovereign given, granted, and confirmed unto him, and Dominion due to Us... ; To Hold of Us

his Heirs. as of our Castle of Windsor, in our County ITI. Know Ye therefore, that We ... by of Berks, in free and common Soccage, by

this our present Charter ...do Give, Fealty only for all Services, and not in

Grant, and Confirm, unto the aforesaid capite, nor by Knight’s Service, Yielding

Caecilius, now Baron of Baltimore, his Heirs, therefore unto Us ... two Indian Arrows and Assigns, all that Part of the Peninsula, of these Parts, to be delivered at the said or Chersonese, lying in the Parts of Amer- Castle of Windsor, every Year, on Tuesday ica, between the Ocean on the East, and the in Easter-Week: And also the fifth Part of Bay of Chesopeake on the West, [boundaries all Gold and Silver Ore, which shall happen

defined] .. . from Time to Time, to be found within the IV. Also We do Grant .. . unto the said aforesaid limits.

22 DocUMENTS oF AMERICAN History VI. Now, That the aforesaid Region,... Heirs and Successors, do grant unto the may be eminently distinguished above all aforesaid now Baron of Baltimore, his Heirs other Regions of that Territory,... Know and Assigns, that the same Baron of Balti-

Ye, that... We do... Erect and Incor- more, his Heirs and Assigns, from Time to porate the same into a Province, and nomi- Time, forever, shall have, and enjoy the nate the same Maryland, by which name We ‘Taxes and Subsidies payable, or arising within

will that it shall from henceforth be called. the Ports, Harbors, and other Creeks and

VII. And... We...do grant unto’ Places aforesaid, within the Province afore-

the said now Baron... for the good and _ said, for Wares bought and sold, and Things happy Government of the said Province, there to be laden, or unladen, to be reasonably free, full, and absolute Power, by the tenor assessed by them, and the People there as of these Presents, to Ordain, Make, and aforesaid, on emergent Occasion; to whom Enact Laws, of what kind soever, according We grant Power by these Presents, for Us, to their sound Discretions, whether relating our Heirs and Successors, to assess and imto the Public State of the said Province, or pose the said Taxes and Subsidies there, the private Utility of Individuals, of and upon just Cause and in due Proportion.

with the Advice, Assent, and Approbation of XVIII. And Furthermore... We... , the Free-Men of the same Province, or of the do give ... unto the aforesaid now Baron greater Part of them, or of their Delegates of Baltimore . . . full and absolute Licence, or Deputies, whom We will shall be called Power, and Authority ... that he assign, together for the framing of Laws, when, and alien, grant, demise, or enfeoff so many, such,

as often as Need shall require, by the afore- and proportionate Parts and Parcels of the said now Baron of Baltimore... , and in Premises, to any Person or Persons willing the Form which shall seem best to him ... to purchase the same, as they shall think con-

and duly to execute the same upon all Per- venient, to have and to hold... in Feesons, for the Time being, within the afore- simple, or Fee-tail, or for Term of Life, said Province, and the Limits thereof, or Lives, or Years; to hold of the aforesaid now

under his or their Government and Power, Baron of Baltimore... by ...such...

. . . by the Imposition of Fines, Imprison- Services, Customs and Rents Of This Kind, ment, and other Punishment whatsoever; as to the same now Baron of Baltimore .. . even if it be necessary, and the Quality of shall seem fit and agreeable, and not immethe Offence require it, by Privation of Mem- diately of Us...

ber, or Life . . . So Nevertheless. that the XIX. We also...do... grant Li-

Laws aforesaid be consonant to Reason and_ cence to the same Baron of Baltimore .. . be not repugnant or contrary, but (so far as to erect any Parcels of Land within the

conveniently may be) agreeable to the Province aforesaid, into Manors, and in

Laws, Statutes, Customs and Rights of this every of those Manors, to have and to hold

Our Kingdom of England... . a Court-Baron, and all Things which to a XVII. Moreover, We will, appoint, and Court-Baron do belong; ... ordain, and by these Presents, for Us, our

16. FUNDAMENTAL ORDERS OF CONNECTICUT January 14, 1639 (Poore, ed. The Federal and State Constitutions, Part I, p. 249 ff.) In 1636 the Rev. Thomas Hooker led his New up the Fundamental Orders—the first written Town congregation into the inviting Connecti- constitution that created a government. See, J. G. cut Valley, and founded the town of Hartford. Palfrey, History of New England, Vol. I; J. These pioneers were soon followed by others Fiske, Beginnings of New England; B. Trumbull, from Massachusetts Bay, and in January 1639 History of Connecticut, Vol. 1; J. A. Doyle, Engthe freemen of the towns of Hartford, Windsor lish Colonies in America: The Puritan Colonies, and Wethersfield assembled at Hartford and drew Vol. I; B. Long, Genesis of the Constitution of

FUNDAMENTAL ORDERS OF CONNECTICUT 23 the United States, ch. iv. On Hooker, see, G. L. have taken the Oath of Fidellity, and doe Walker, Thomas Hooker; V. L. Parrington, The cohabitte within this Jurisdiction, (having

Colonial Mind, p. 53 ff. beene admitted Inhabitants by the major

part of the Towne wherein they live,) or Forasmuch as it hath pleased the All- the major parte of such as shall be then mighty God by the wise disposition of his present. divyne pruvidence so to Order and dispose 4. It is Ordered . . . that noe person be of things that we the Inhabitants and Resi- chosen Governor above once in two yeares, dents of Windsor, Harteford and Wethers- and that the Governor be alwayes a memfield are now cohabiting and dwelling in and ber of some approved congregation, and

uppon the River of Conectecotte and the formerly of the Magestracy within this Lands thereunto adioyneing; And well know- Jurisdiction; and all the Magestrats Freeing where a people are gathered togather men of this Commonwelth: .. .

the word of God requires that to mayntayne 5. It is Ordered... that to the afore-

the peace and union of such a people there said Courte of Election the severall Townes

should be an orderly and decent Govern- Shall send their deputyes, and when the ment established according to God, to order Elections are ended they may proceed in and dispose of the affayres of the people any publike searvice as at other Courts. at all seasons as occation shall require; doe Also the other Generall Courte in Septemtherefore assotiate and conioyne our selves ber shall be for makeing of lawes, and any to be as one Publike State or Common- other publike occation, which conserns the welth; and doe, for our selves and our Suc- 800d of the Commonwelth.

cessors and such as shall be adioyned to 7. It is Ordered . . . that after there are us att any tyme hereafter, enter into Com- warrants given out for any of the said

bination and Confederation togather, to Generall Courts, the Constable . cot of ech mayntayne and presearve the liberty and Towne shall forthwith give notice distinctly purity of the gospell of our Lord Jesus which to the inhabitants of the same, .. . that at we now professe, as also the disciplyne of 4 place and tyme by him or them lymited the Churches, which according to the truth and sett, they meet and assemble them of the said gospell is now practised amongst selves togather to elect and chuse certen us; As also in our Civell Affaires to pe deputyes to be att the Generall Courte then guided and governed according to such following to agitate the afayres of the comLawes, Rules, Orders and decrees as shall be monwelth; which said Deputyes shall be made, ordered & decreed, as followeth:— chosen by all that are admitted Inhabitants 1. It is Ordered ... that there shall be in the severall Townes and have taken the yerely two generall Assemblies or Courts, oath of fidellity; provided that non be the one the second thursday in Aprill, the chosen a Deputy for any Generall Courte other the second thursday in September, which is not a Freeman of this Commonfollowing; the first shall be called the Courte welth.... of Election, wherein shall be yerely Chosen 8. It is Ordered .. . that Wyndsor, Hart... soe many Magestrats and other pub- ford and Wethersfield shall have power, ech like Officers as shall be found requisitte: Towne, to send fower of their freemen as Whereof one to be chosen Governour for their deputyes to every Generall Courte; the yeare ensueing and untill another be and whatsoever other Townes shall be herechosen, and noe other Magestrate to be after added to this Jurisdiction, they shall chosen for more than one yeare; provided send so many deputyes as the Courte shall allwayes there be sixe chosen besids the judge meete, a resonable proportion to the Governour; which being chosen and sworne number of Freemen that are in the said according to an Oath recorded for that pur- Townes being to be attended therein; which pose shall have power to administer iustice deputyes shall have the power of the whole according to the Lawes here established, and Towne to give their voats and alowance to

for want thereof according to the rule of all such lawes and orders as may be for the word of God; which choise shall be the publike good, and unto which the said made by all that are admitted freemen and Townes are to be bownd.

24 DocUMENTS OF AMERICAN HisToRY 9. It is ordered ... that the deputyes question for any misdemeanour, and may thus chosen shall have power and liberty to for just causes displace or deale otherwise appoynt a tyme and a place of meeting to- according to the nature of the offence; and gather pefore ony ceneral route to ad- also may deale in any other matter that con-

consult of all suc Ings as may cerns the good of this commonwelth, ex-

concerne the good of the publike, as also cepte election of Magestrats, which shall be

to examine their owne Elections. .. . done by the whole boddy of Freemen. 10. It is Ordered... that every Gen- In which Courte the Governour or Modererall ... shal consisttoofmoderate wpe an ator Spal wave power to order Courte ernor,Courte Or some one chosen the to give liberty of spech, andthe silence unsot and 4 other at ostofwee and disorderly to be put major parteagestrats o e deputyes theceasonanle all things to voate, and inspeakeings, case the vote severall Townes legally chosen; and in case equall to have the casting voice. But non of the _ reemen or major parte of am through these Courts shall be adjorned or dissolved

negiect or refusail of the Governor and without the consent of the major parte of major parte of the magestrats, shall call a the Court.

Courte, it shall consist of the major parte 11. It is ordered... that when any of F reemmen ae are Present “ their depu- Generall Courte uppon the occations of the tyes, with a Moderator chosen by them: In Commonwelth have agreed uppon any which said Generall Courts shall consist the summe or sommes of mony to be levyed supreme power of the Commonwelth, and uppon the severall Townes within this Juristhey on’y ar have power to make lawes_ diction, that a Committee be chosen to sett or repeale them, to graunt levyes, to admitt out and appoynt what shall be the proporof Freemen, dispose of lands undisposed of, tion of every Towne to pay of the said to severall Townes or persons, and also shall levy, provided the Committees be made up have power to call ether Courte or Mages- of an equall number out of each Towne. trate or any other person whatsoever into

: 17. PLANTATION AGREEMENT AT PROVIDENCE August 27, 1640 (F. N. Thorpe, ed. Federal and State Constitutions, Vol. VI, p. 3205 ff.) In 1636 Roger Williams led a small band of chosen by the consent of our loving friends : settlers from Massachusetts Bay to Narragansett and neighbors the Inhabitants of this Towne

Bay and founded the town ot Providence. . of Providence, having many differences but all of these towns remained separate and in- also bound themselves to stand t Arbi dependent until the charter of 1644 went into , a all te eS £0 stand to our srbleffect. In 1640 the inhabitants of Providence ‘tion in a difierences amongst us to rest drew up an agreement in which, among other Contented in our determination, being so 1638 and 1059 other settlements were established, amongst us, they being freely willing and

things, they covenanted “to hould forth liberty betrusted we have seriously and carefully of conscience.” On Roger Williams and the early indeavoured to weigh and consider all those history of Rhode Island, see O. S. Strauss, Roger differences, being desirous to bringe to unity

Williams; E, Easton, Roger Williams; J. Ernst, and peace, although our abilities are farr Roger Williams; J. Ernst, The Political yous short in the due examination of such weighty of Roger Williams; V. L. Parrington, The Colo- things, yet so farre as we conceive in lay-

nial Mind, p. 62 ff.; S. G. Arnold, Rhode Island; ing all things together we hav h

I. B. Richman, Rhode Island; E. Field, Rhode f 8 d 5 ; € gone tne Island, Vol. I; J. Fiske, Beginnings of New Eng- airest and equalist way to produce our land; J. T. Adams, The Founding of New Eng- peace. land; J. Winsor, ed. Narrative and Critical His- II. Agreed. We have with one consent

tory, Vol. III. agreed that for the disposeing, of these

lands that shall be disposed belonging to Wee, Robert Coles, Chad Browne, Wil- this towne of Providence to be in the whole liam Harris, and John Warner, being freely Inhabitants by the choise of five men for

PLANTATION AGREEMENT AT PROVIDENCE 25 generall disposeall of lands and also of refuse and trouble men beyond reasonable the towne Stocke, and all Generall things and _ satisfaction; so for the last arbitrators to not to receive in any six dayes at townes- judge where the fault was, in not agreeing men, but first to give the Inhabitants notice in the first, to pay the charge of the last. to consider if any have just cause to shew IV. Agreed, that if any person damnify against the receiving of him as you can any man, either in goods or good name, and apprehend, and to receive none but such _ the person offended follow not the cause as subscribe to this our determination. Also, uppon the offendor, that if any person give we agree that if any of our neighbours doe notice to the 5 Disposers, they shall call apprehend himselfe wronged by these or the party delinquent to answer by Arbitraany of these 5 disposers, that at the Generall tion.

towne mceting he may have a tryall. Instance. Thus, if any person abuse an

Also wee agree for the towne to choose other person or goods, may be for peace beside the other five men one or more to. sake, a man will at present put it up, and it keepe Record of all things belonging to the may so be resolve to revenge: therefore,

towne and lying in Common. for the peace of the state, the disposers are Wee agree, as formerly hath bin the liber- to look to it in the first place.

ties of the town, so still, to hould forth V. Agreed, for all the whole Inhabitants

liberty of Conscience. to combine ourselves to assist any man in

III. Agreed, that after many Considera- the pursuit of any party delinquent, with

tions and Consultations of our owne State all best endeavours to attack him: but if any and alsoe of States abroad in way of govern- man raise a hubbub, and there be no just

ment, we apprehend, no way so suitable to cause, then for the party that raised the our Condition as government by way of hubbub to satisfy men for their time lost Arbitration. But if men agree themselves by in it.

arbitration, no State we know of disallows VI. Agreed, that if any man have a difthat, neither doe we: But if men refuse that ference with any of the 5 Disposers which which is but common humanity betweene cannot be deferred till general meeting of man and man, then to compel such un-_ the towne, then he may have the Clerk call reasonable persons to a reasonable way, we the towne together at his (discretion) for agree that the 5 disposers shall have power a tryall.

to compel him to choose two men himselfe, Instance. It may be, a man may be to

or if he refuse, for them to choose two depart the land, or to a farr parte of the

men to arbitrate his cause, and if these land; or his estate may lye yppon a speedy foure men chosen by every partie do end _ tryall or the like case may fall out.

the cause, then to see theire determination VII. Agreed, that the towne, by the five performed and the faultive to pay the Arbi- men shall give every man a deed of all his trators for theire time spent in it: But if lands lying within the bounds of the Plantathese foure men doe not end it, then for the tions, to hould it by for after ages.

5 disposers to choose three men to put an VIII. Agreed, that the 5 disposers shall end to it, and for the certainty thereof, wee from the date hereof, meete every monthagree the major part of the 5 disposers to day uppon General things and at the quarterchoose the 3 men, and the major part of day to yeeld a new cholse and give up their the 3 men to end the cause haveing power’ old Accounts. from the 5 disposers by a note under theire IX. Agreed, that the Clerke shall call the hand to performe it, and the faultive not 5 Disposers together at the month-day, and agreeing in the first to pay the charge of the generall towne together every quarter, the last, and for the Arbitrators to follow to meete uppon general occasions from the no imployment til the cause be ended with- date hereof... . out consent of the whole that have to doe XI. Agreed, that all acts of disposall on

with the cause. both sides to stand since the difference.

Instance. In the first Arbitration the of- XII. Agreed, that every man that hath

fender may offer reasonable terms of peace, not paid in his purchase money for his and the offended may exact upon him and _ Plantation shall make up his 10s. to be 30s.

26 DOCUMENTS OF AMERICAN History equal with the first purchasers: and for all ally concluded on, for our peace, we desire-

that are received townsmen hereafter, to ing our loving friends to receive as our

pay the like somme of money to the towne absolute determination, laying ourselves

stocke. downe as subjects to it. These being those things wee have gener-

18. THE NEW ENGLAND CONFEDERATION May 19, 1643 (F. N. Thorpe, Federal and State Constitutions, Vol. 1, p. 77 ff.) The first suggestion for a union of the New _ several nations and strange languages which England Colonies came from the magistrates hereafter may prove injurious to us or our

and ministers of Connecticut in 1637. The posterity. And forasmuch as the natives

proposal was renewed in 1638 and 1639; in have formerly committed sundry insolence 1640 the magistrates of Massachusetts Bay indi- and outrages upon several Plantations of

cated acceptance of the but the an English dh combined F bined that Rhode Island should notproposal, be admitted to insisted the © engish ave 0 late

group. In 1642 the civil wars in England led to themselves against us: and seeing by reason a renewal of the proposal from Massachusetts Of those sad distractions in England which Bay, and in May 1642, delegates from Plymouth, they have heard of, and by which they Connecticut and New Haven met with those of know we are hindered from that humble the Bay colony in Boston and agreed upon the way of seeking advice, or reaping those comarticles of Confederation. Rhode Island was con- fortable fruits of protection, which at other sistently excluded {rom the Confederation. The times we might well expect. We therefore union of the colonies of Connecticut and New do conceive it our bounden duty, without

Haven and the to Rhode Is- del int Osociation tC “at; land practically putgrant an endof to athecharter Confederaclay to enter intotater presen

tion, but commissioners continued to hold mect- @mongst ourselves, for mutual help and ings until 1684. Sec, R. Frothingham, Rise of Strength in all our future concernments: the Republic of the United States, ch. ii; J. A. That, as in nation and religion, so in other Doyle, The English in America; The Puritan respects, we be and continue one accordColonies, Vol. 1; J. G. Palfrey, History of New ing to the tenor and true meaning of the England, Vols. I, 11; L. G. Tyler, England in ensuing articles; Wherefore it is fully agreed America, ch. xvii ; J. Fiske, Beginnings of New and concluded by and between the parties

England, ch. iv. or Jurisdictions above named, and_ they

The Articles of Confederation between Jointly and severally do by these presents the Plantations under the Government of agree and conclude that they all be and the Massachusetts, the Plantations under the henceforth be called by the name of the Government of New Plymouth, the Planta- United Colonies of New England.

tions under the Government of Connecticut, 2. The said United Colonies for themand the Government of New Haven with selves and their posterities do jointly and the Plantations in Combination therewith: severally hereby enter into a firm and perpetual league of friendship and amity for Whereas we all came into these parts of offence and defence, mutual advice and suc-

America with one and the same end and cor upon all just occasions both for preaim, namely, to advance the Kingdom of serving and propagating the truth and liberour Lord Jesus Christ and to enjoy the _ ties of the Gospel and for their own mutual liberties of the Gospel in purity with peace; safety and welfare. and whereas in our settling (by a wise provi- 3... . And in reference to the Plantadence of God) we are further dispersed upon’ tions which already are settled, or shall the sea coasts and rivers than was at first hereafter be erected, or shall settle within intended, so that we can not according to their limits respectively; provided no other our desire with convenience communicate Jurisdiction shall hereafter be taken in as a in one government and jurisdiction; and distinct head or member of this Confederawhereas we live encompassed with people of tion, nor shall any other Plantation or

THe NEw ENGLAND CONFEDERATION 27 Jurisdiction in present being, and not already the cause of such war or invasion be duly in combination or under the jurisdiction of considered: and if it appear that the fault

any of these Confederates, be received by lay in the parties so invaded then that any of them; nor shall any two of the Con- Jurisdiction or Plantation make just satisfederates join in one Jurisdiction without faction, both to the invaders whom they

consent of the rest, which consent to be have injured, and bear all the charges of interpreted as is expressed in the sixth the war themselves, without requiring any

article ensuing. allowance from the rest of the Confederates 4. It is by these Confederates agreed towards the same. And further that if any

that the charge of all just wars, whether of- Jurisdiction see any danger of invasion apfensive or defensive, upon what part or proaching, and there be time for a meeting, member of this Confederation soever they that in such a case three magistrates of the

fall, shall both in men, provisions, and all Jurisdiction may summon a meeting at other disbursements be borne by all the such convenient place as themselves shall parts of this Confederation in different think meet, to consider and provide against proportions according to their different the threatened danger; ... ability in manner following, namely, .. . 6. It is also agreed, that for the managthat according to the different numbers ing and concluding of all affairs proper, and which from time to time shall be found in concerning the whole Confederation two each Jurisdiction upon a true and just ac- Commissioners shall be chosen by and out count, the service of men znd all charges of each of these four Jurisdictions: namely,

of the war be borne by the poll: each two for the Massachusetts, two for Ply-

Jurisdiction or Plantation being left to their mouth, two for Connecticut, and two for own just course and custom of rating them- New Haven, being all in Church-fellowship selves and people according to their different with us, which shall bring full power from estates with due respects to their qualities their several General Courts respectively to and exemptions amongst themselves though hear, examine, weigh, and determine all af-

the Confederation take no notice of any fairs of our war, or peace, leagues, aids, such privilege: and that according to their charges, and numbers of men for war, dividifferent charge of each Jurisdiction and _ sion of spoils and whatsoever is gotten by Plantation the whole advantage of the war conquest, receiving of more Confederates

(if it please God so to bless their en- for Plantations into combination with any deavors) whether it be in lands, goods, or of the Confederates, and all things of like persons, shall be proportionately divided nature, which are the proper concomitants

among the said Confederates. or consequents of such a Confederation for

5. It is further agreed, that if any of amity, offence, and defence: not intermedthese Jurisdictions or any Plantation under dling with the government of any of the or in combination with them, be invaded Jurisdictions, which by the third article is by any enemy whomsoever, upon notice and _ preserved entirely to themselves. ... It is request of any three magistrates of that further agreed that these eight CommissionJurisdiction so invaded, the rest of the Con- ers shall meet once every year besides federates without any further meeting or extraordinary meetings (according to the expostulation shall forthwith send aid to the fifth article) to consider, treat, and conConfederate in danger but in different pro- clude of all affairs belonging to this Conportions; namely, the Massachusetts an hun-_ federation, . . .

dred men sufficiently armed and provided 8. It is also agreed that the Commissionfor such a service and journey, and each of ers for this Confederation hereafter at their the rest, forty-five so armed and provided, meetings, whether ordinary or extraordinary,

or any less number, if less be required ac- as they may have commission or opcording to this proportion. . . . But in any portunity, do endeavor to frame ‘and esSuch case of sending men for present aid, tablish agreements and orders in general whether before or after such order or altera- cases of a civil nature, wherein all the tion, it is agreed that at the meeting of Plantations are interested, for preserving the Commissioners for this Confederation, of peace among themselves, for preventing

28 DOCUMENTS OF AMERICAN HISTORY as much as may be all occasion of war or for the safe returning of any such offender, differences with others, as about the free then it shall be granted to him that craves and speedy passage of justice in every the same, he paying the charges thereof. Jurisdiction, to all the Confederates equally 9. And for that the justest wars may be as to their own, receiving those that re- of dangerous consequence, especially to the move from one Plantation without due cer- smaller Plantations in these United Colotificate, how all the Jurisdictions may carry nies, it is agreed that neither the Massait towards the Indians, that they neither chusetts, Plymouth, Connecticut, nor New grow insolent nor be injured without due Haven, nor any of the members of them, satisfaction, lest war break in upon the _ shall at any time hereafter begin, undertake, Confederates through such miscarriages. It or engage themselves, or this Confederais also agreed that if any servant run away tion, or any part thereof in any war whatfrom his master into any other of these soever . . . without the consent and agreeconfederated Jurisdictions, that in such case, ment of the forementioned eight Commisupon the certificate of one magistrate in the sioners, or at least six of them, as in the Jurisdiction out of which the said servant sixth article is provided: and that no charge

fled, or upon other due proof; the said be required of any of the Confederates, in servant shall be delivered, either to his case of a defensive war, till the said Commaster, or any other that pursues and brings missioners have met, and approved the jussuch certificate or proof. And that upon the tice of the war, and have agreed upon the escape of any prisoner whatsoever, or fugi- sum of money to be levied, which sum 1s tive for any criminal cause, whether break- then to be paid by the several Confederates

ing prison, or getting from the officer, or in proportion according to the fourth arti-

otherwise escaping, upon the certificate of cle... two magistrates of the Jurisdiction out of 11. It is further agreed that if any of the which the escape is made, that he was a Confederates shall hereafter break any of

prisoner, or such an offender at the time these present articles, or be any other ways of the escape, the magistrates, or some of injurious to any one of the other Jurisdicthem of that Jurisdiction where for the tions; such breach of agreement or injury present the said prisoner or fugitive abideth, shall be duly considered and ordered by the shall forthwith grant such a warrant as the Commissioners for the other Jurisdictions, case will bear, for the apprehending of any that both peace and this present Confederasuch person, and the delivery of him into tion may be entirely preserved without violathe hands of the officer or other person who tion.... pursues him. And if there be help required,

19. MASSACHUSETTS SCHOOL LAW OF 1642 April 14, 1642

(E. P. Cubberley, ed. Readings in the History of Education, p. 298-9) This is the earliest known law on education in forth stand charged with the care of the the American colonies. Similar laws were redresse of this evill, so as they shalbee sufadopted, somewhat later, by Connecticut, New ficiently punished by fines for the neglect Haven, and Plymouth. See also, the law of 1647, thereof, upon presentment of the grand iury,

Doc. No. 20. see bibliography in M. W. Jerne- 6 other information or complaint in any

gan, The American Colonies, p. 104. Court within this iurisdiction; and for this This Co't, taking into consideration the end they, or the greater numbe™ of them, great neglect of many parents & masters in shall have power to take account from time

training up their children in learning & to time of all parents and masters, and of

labo", & other implyments which may be their children, concerning their calling and proffitable to the common wealth, do here- implyment of their children, especially of upon order and decree, that in euery towne their ability to read & understand the princiy® chosen men appointed for managing the ples of religion & the capitall lawes of this prudentiall affajres of the same shall hence- country, and to impose fines upon such as

THE CAMBRIDGE PLATFORM 29 shall refuse to render such accounts to them raised in their severall townes, & tooles & when they shall be required; and they shall implements provided for working out the have power, with consent of any Court or same; & for their assistance in this so needthe magistrate, to put forth apprentices full and beneficial imploymt, if they meete

the children of such as they shall (find) w'® any difficulty or opposition we) they not to be able & fitt to employ and bring cannot well master by their own power, they

them up. They shall take... that boyes may have reco'se to some of the matrats, and girles be not suffered to converse to- who shall take such course for their help & gether, so aS may occasion any wanton, incuragm! as the occasion shall require acdishonest, or immodest behavio'; & for their cording to iustice; & the said townesmen, better performance of this trust committed at the next Co’t in those limits, after the

to them, they may divide the towne end of their year, shall give a briefe account amongst them, appointing to every of the in writing of their proceedings herein, pro-

said townesmen a certaine number of vided that they have bene so required by

families to have special oversight of. They some Co't or magistrate a month at least beare also to provide that a sufficient quantity fore; & this order to continew for two yeares,

of materialls, as hemp, flaxe, ec’, may be & till the Cort shall take further order. 20. MASSACHUSETTS SCHOOL LAW OF 1647 (Records of the Governor and Company of the Massachusetts Bay in New England,

Vol. II, p. 203) This “old deluder Satan” law established the first monwealth, the Lord assisting o' ensystem of public education in the American colo- deavo's,—

nies. A number of towns had already established It is therefore ord'ed, yt ev'y towneschools, and the law of 1642, Doc. No. 19, had = shin in this iurisdiction, aft" y® Lord hath provided for the instruction of children in read- increased y™ number to 50 houshold's, shall “learning might not be buried in the grave of our then forthw'® appoint one w'" in their fathers in Church and commonwealth.” Other towne to teach all such children as shall reNew England States followed the example of sort to him to write & reade, whose wages Massachusetts within the next generation. See, shall be paid eith™ by y® parents or mast’ of G. H. Martin, Evolution of the Massachusetts such children, or by y® inhabitants in gen‘all, School System ; H. Suzzalo, Rise of Local School by way of supply, as y® maior part of those Supervision in Massachusetts; and articles by yt ord’ y® prudentials y® twone shall apNOT Seo etT in School Review, Vols. XXII, point; provided, those yt send their children

ing. The purpose of the law of 1647 was that. th . th :

" be not oppressed by paying muc& more y™ they can have y™ taught for in oth™ townes;

It being one chiefe proiect of y® ould & it is furth™ ordered, y‘ where any towne deluder, Satan, to keepe men from the _ shall increase to y® numb’ of 100 families knowledge of y® Scriptures, as in form’ or househould’*, they shall set up a gramtimes by keeping y™ in an unknowne tongue, mer schoole, y® m" thereof being able to so in these latt™ times by perswading from instruct youth so farr as they shall be y® use of tongues, y' so at least y® true fitted for y°® university, provided, y* if any sence & meaning of y® originall might be towne neglect y® performance hereof above clouded by false glosses of saint seeming one yeare, yt every such towne shall pay 5 deceivers, yt learning may not be buried in’ pounds to y® next schoole till they shall y® grave of o* fath™’ in y® church and com- __ performe this order.

21. THE CAMBRIDGE PLATFORM 1648

(W. Walker, Creeds and Platforms of Congregationalism, p. 194 ff.) The Cambridge Platform grew out of the chal- Church by William Vassall and others who pelenge of the authority of the Congregational titioned for the removal of civil disabilities of

30 DOCUMENTS OF AMERICAN History non-members of the Church. A synod met at The powr & authority of Magistrates is Cambridge, September 1, 1646, “to discuss, dis- pot for the restraining of churches, or any pute, & cleare up... such questions of church other good workes, but for helping in and government & discipline ve as they shall thinke furthering therof; & therfore the consent & needfull & meete.” The third session of this synod, countenance of Magistrat hen ; b in August 1648, adopted the Westminster Con- eistrates when it may de fession as its creed, and formulated the rela- @d, is not to be sleighted, or lightly estions of church and state and the duties of the teemed; but on the contrary; it is part of clergy in the Cambridge Platform. In 1649 this that honour due to christian Magistrates platform was laid before the Congregations and to desire & crave their consent & approbaby 1651 was adopted. “This event”, says Fiske, tion therin: which being obtayned, the “may be regarded as completing the theocratic churches may then proceed in their way with Organization of the Puritan Commonwealth.” much more encouragement, & comfort. See C. Mather, Magnalia, Vol. 11; W. Hubbard, 4. It is not in the powr of Magistrates to

General History of New England, p. 532 ff.; J. G. .

Palfrey, History of New England, Vol. Il, p compell their subjects to become church165 ff.; H. M. Dexter, Congregationalism, p, members, & to partake at the Lords table: 435 ff.; B. Adams, The Emancipation of Massa- or the priests are reproved, that brought chusetts, p. 79 ff.; P. Miller, Orthodoxy in Mas- unworthy ones into the sanctuarie: then, as sachusetts; J. T. Adams, The Founding of New it was unlawfull for the priests, so it is un-

England, ch. xi. Jawfull to be done by civil Magistrates. Those whom the church is to cast out if

CHAP: XVII they were in, the Magistrate ought not to Of The Civil Magistrates powr in Matters trust into the church, nor to hold them

Ecclestastical 5. As it is unlawfull for church-officers to It is lawfull, profitable, & necessary for meddle with the sword of the Magistrate, christians to gather themslves into Church so it is unlawfull for the Magistrate to medestate, and therin to exercise all the ordi- dle with the work proper to church-officers.

nances of christ according unto the word, the Acts of Moses & David, who were although the consent of Magistrate could not only Princes, but Prophets, were not be had therunto, because the Apostles & extraordinary; therfore not imitable. christians in their time did frequently thus Against such usurpation the Lord witnessed, practise, when the Magistrates being all of by smiting Uziah with leprosie, for presumthem Jewish or pagan, & mostly persecuting ing to offer incense.

enemies, would give no countenance or con- 6. It is the duty of the Magistrate, to

sent to such matters. take care of matters of religion, & to im2. Church-government stands in no op-_ prove his civil authority for the observing

position to civil government of common- of the duties commanded in the first, as

welths, nor any intrencheth upon the author- well as for observing of the duties comity of Civil Magistrates in their jurisdictions; manded in the second table... .

nor any whit weakneth their hands 7. The object of the powr of the Magisin governing; but rather strengthneth them, trate, are not things meerly inward, & so. not

& furthereth the people in yielding more subject to his cognisance & view, as in unhearty & conscionable obedience unto them, beliefe hardness of heart, erronious opinions

whatsoever some ill affected persons to the not vented; but only such things as are wayes of Christ have suggested to alienate acted by the outward man; neither is their the affections of Kings & Princes from the powr to be exercised, in commanding such ordinances of Christ; as if the kingdome acts of the outward man, & punishing the of Christ in his church could not rise & neglect therof, as are but meer inventions, stand, without the falling and weakning of & devices of men; but about such acts, as their government, which is also of Christ: are commanded & forbidden in the word ;

whereas the contrary is most true, that they yea such as the word doth clearly determine, may both stand together & flourish the one though not alwayes clearly the judgment of

being helpfull unto the other, in their dis- the Magistrate or others, yet clearly in it

tinct and due administrations. selfe. In these he of right ought to putt

MARYLAND TOLERATION ACT 31 forth his authority, though oft-times actually munion of other churches, or shall walke

he doth it not. incorrigibly or obstinately in any corrupt 8. Idolatry, Blasphemy, Heresy, venting way of their own, contrary to the rule of corrupt & pernicious opinions, that destroy the word; in such case, the Magistrate 1s to the foundation, open contempt of the word put forth his coercive powr, as the matter preached, prophanation of the Lords day, _ shall require. The tribes on this side Jordan

disturbing the peaceable administration & intended to make warr against the other tribes, exercise of the worship & holy things of for building the altar of witness, whom they

God, & the like, are to be restrayned, & suspected to have turned away

punished by civil authority. therin from following 9. If any church one or more shall grow of the Lord.

schismaticall, rending it self from the com- Finis

22. MARYLAND TOLERATION ACT April 21, 1649 (The Archives of Maryland, ed. by W. H. Browne, Vol. I, p. 244 ff.) This so-called Toleration Act, passed in ac- Therefore... enacted (except as in this cordance with instructions from Lord Baltimore, present Act is before Declared and sett was designed to secure Maryland from the charge forth) that noe person or persons whatsoof intolerance toward Protestantism. In 1654 the ever within this Province, or the Islands, Puritans gained control of Maryland and the Ports, Harbors, Creekes, or havens thereunto

protection given to Catholics was withdrawn, belong; fess} to. beli in Jesus but upon the restoration of Lord Baltimore to e onging = professing to eneve 1

control, the act of 1649 was revived. The harsh Christ, shall from henceforth bee any wales provisions of the act against blasphemy were troubled, Molested or discountenanced for never enforced. See, G. Petrie, Church and State or in respect of his or her religion nor in in Maryland, J. H. U. Studies, Vol. X; M. P. the free exercise thereof within this Province Andrews, The Founding of Maryland, ch. x. or the Islands thereunto belonging nor any way compelled to the beleife or exercise of

Fforasmuch as in a well governed and any other Religion against his or her conChristian Common Wealth matters concern- sent, soe as they be not unfaithful to the ing Religion and the honor of God ought in Lord Proprietary, or molest or conspire against the first place to bee taken, into serious con- the civill Government established or to bee sideration and endeavoured to bee settled. established in this Province under him or his

Be it therefore .. . enacted. ... That what- heires. And that all & every person and per-

soever person or persons within this sons that shall presume Contrary to this

Province . . . shall from henceforth blas- Act and the true intent and meaning thereof pheme God, ... or shall deny our Saviour directly or indirectly either in person or Jesus Christ to bee the sonne of God, or estate willfully to wronge disturbe trouble shall deny the holy Trinity the ffather sonne or molest any person whatsoever within this

and holy Ghost, or the Godhead of any of Province professing to believe in Jesus the said Three persons of the Trinity or Christ for or in respect of his or her religion

the Unity of the Godhead... shall be or the free exercise thereof within this

punished with death and confiscation or for- Province other than is provided for in this

feiture of all his or her lands... . Act that such person or persons soe offend.. . And whereas the inforceing of the ing, shalbe compelled to pay trebble

conscience in matters of Religion hath fre- damages to the party soe wronged or moquently fallen out to be of dangerous Con- lested, and for every such offence shall also sequence in those commonwealthes where it forfeit 208 sterling in money or the value hath been practised, And for the more quiett thereof. .., Or if the parties soe offending and peaceable governement of this Province, as aforesaid shall refuse or bee unable to and the better to preserve mutuall Love and recompense the party soe wronged, or to amity amongst the Inhabitants thereof. Be it satisfy such ffyne or forfeiture, then such

32 DOCUMENTS OF AMERICAN HISTORY offender shalbe severely punished by publick or cheife Governor of this Province for the whipping & imprisonment during the pleasure tyme being without baile or maineprise. . . . of the Lord proprietary, or his Leiuetenant

23. THE NAVIGATION ACT OF 1660 (D. Pickering, Statutes at Large, Vol. VII, p. 452 ff.) The Navigation laws provided the mechanism Berwick upon Tweed, or are of the built of for the policy of mercantilism practiced by Great and belonging to any the said lands, islands, onan as se + by the other colonizing powers plantations or territories, as the proprietors 0 nrope. e Hrst navigation laws were enacted and right owners thereof, and whereof the fifties. The Act of 1660, often referred to as the master and three fourths of the mariners at First Navigation Act, systematized the laws and east are English; under the penalty of the regulations of the preceding fifteen years. See, forfeiture and loss of all the goods and comA. L. Beer, Commercial Policy of England modities which shall be imported into or exTowards the American Colonies; A. L. Beer, ported out of any the aforesaid places in any Origin of the British Colonial System, 1578- other ship or vessel, as also of the ship or

in 1645; others followed in the decade of the

1660; A. L. Beer, The Old Colonial System, vessel... . 1660-1754, 2 Vols.; Cambridge History of the ° British Empire, Vel. 1, ch. ix: H. E. ‘Seurton, HI. And be it enacted, That no alien or per-

Short History of British Colonial Policy; J.T, S08 not born within the allegiance of our Adams, The Founding of New England, ch. xii, S0VeTeign lord the King, his heirs and sucW. J. Ashley, “The Commercial Legislation of | CeSsors, or naturalized, or made a free deniEngland and the American Colonies, 1660-1760,” zen, shall from and after the first day of Quarterly Journal of Economics, Vol. XIV; February, 1661, exercise the trade or occupaE. Channing, “The Navigation Laws,” American tion of a merchant or factor in any the said

Antiquarian Society, Proceedings, 1889. places; upon pain of the forfeiture and loss of all his goods and chattels, . . . and all govAn act for the encouraging and increasing of &™OTS of the said lands, islands, plantations

shipping and navigation or territories, and every of them, are hereby

strictly required and commanded, and all who For the increase of shipping and encourage- hereafter shall be made governors of any such ment of the navigation of this nation, wherein, islands, plantations or territories, by his Majunder the good providence and protection of _ esty, his heirs or successors, shall before their God, the wealth, safety and strength of this entrance into their government take a solemn kingdom is so much concerned; be it enacted _ oath, to do their utmost, that every the aforeby the King’s most excellent majesty, and by mentioned clauses, and all the matters and the lords and commons in this present par- things therein contained, shall be punctually

liament assembled, and by the authority and bona fide observed according to the true thereof, That from and after the first day of intent and meaning thereof; and upon comDecember one thousand six hundred and _ plaint and proof made before his Majesty, sixty, and from thenceforward, no goods or his heirs or successors, or such as shall be by commodities whatsoever shall be imported him or them thereunto authorized and apinto or exported out of any lands, islands, pointed, that any the said governors have plantations or territories to his Majesty be- been willingly and wittingly negligent in doing | longing or in his possession, or which may _ their duty accordingly, that the said governor hereafter belong unto or be in the possession — so offending shall be removed from his gov-

of his Majesty, his heirs and successors, in ernment. Asia, Africa or America, in any other ship or III. And it isfurther enacted ... , That ships, vessel or vessels whatsoever, but in no goods or commodities whatsoever, of the such ships or vessels as do truly and without growth, production or manufacture of Africa, fraud belong only to the people of England Asia or America, or of any part thereof, or or /reland, dominion of Wales or town of | which are described or laid down in the usual

Tut NavicaATIon Act oF 1660 33 maps or cards of those places, be imported made by the people thereof, and shall be 1m-

into England, Ireland or Wales, islands of ported into England, Ireland or Wales, or Guernsey and Jersey, or town of Berwick town of Berwick upon Tweed, shall pay douupon Tweed, in any other ship or ships, vessel ble aliens custom.

or vessels whatsoever, but in such as do truly VI. And be it further enacted, ... That and without fraud belong only to the people from henceforth it shall not be lawful to any of England or Ireland, dominion of Wales, or person or persons whatsoever, to load or cause town of Berwick upon Tweed or of the lands, _ to be loaden and carried in any bottom or botislands, plantations or territories in Asza, Af- toms, ship or ships, vessel or vessels whatsorica or America, to his Majesty belonging, as ever, whereof any stranger or strangers-born the proprietors and right owners thereof, and (unless such as shall be denizens or naturalwhereof the master, and three fourths at least ized) be owners, part-owners or master, and

of the mariners are English; (2) under the whereof three fourths of the mariners at penalty of the forfeiture of all such goods least shall not be English, any fish, victual, and commodities, and of the ship or vessel in wares, goods, commodities or things, of what

which they were imported... . kind or nature soever the fame shall be, from

IV. And itis further enacted . . . , That one port or creek of England, Ireland, Wales, no goods or commodities that are of foreign islands of Guernsey or Jersey, or town of growth, production or manufacture, and Berwick upon T weed, to another port or creek which are to be brought into England, Ire- of the fame, or of any of them; under penalty land, Wales, the islands of Guernsey and Jer- for every one that shall offend contrary to sey, or town of Berwick upon Tweed, in the true meaning of this branch of this presEnglish-built shipping, or other shipping be- ent act, to forfeit all such goods shall be longing to some of the aforesaid places, and _loaden and carried in any such ship or vessel, navigated by English mariners, as aforesaid, together with the ship or vessel, .. .

shall be shipped or brought from any other VIII. And it is further enacted . . . That place or places, country or countries, but only no goods or commodities of the growth, profrom those of the said growth, production or duction or manufacture of Muscovy, or to manufacture, or from those ports where the any the countries, dominions or territories to said goods and commodities can only, or are, the ... emperor of Muscovy or Russia beor usually have been, first shipped for trans- longing, as also that no sort of masts, timber

portation, and from none other places or or boards, no foreign salt, pitch, tar, rosin, countries: under the penalty of the forfei- hemp or flax, raisins, figs, prunes, olive-oils, ture of all such of the aforesaid goods as shall no sorts of corn or grain, sugar, potashes, be imported from any other place or country wines, vinegar, or spirits called aqua-vitae, or

contrary to the true intent and meaning brandy-wine, shall from after the first day hereof, as also of the ship in which they were of April, 1662, be imported into England, Ire-

imported, ... land, Wales, or town of Berwick upon Tweed, V. And it is further enacted ..., That in any ship or ships . . . but in such as do

any sort of ling, stock-fish, pilchard, or any truly and without fraud belong to the people

other kind of dried or salted fish, usually thereof ... and whereof the master and

fished for and caught by the people of Eng- three fourths of the mariners at least are England, Ireland, Wales, or town of Berwick lish: and that no currans nor commodities of upon Tweed; or any sort of cod-fish or her- the growth, production or manufacture of any ring, or any oil or blubber made or that shall of the countries, islands, dominions or terr1be made of any kind of fish whatsoever, or tories to the Othoman or Turkish empire beany whale-fins or whale-bones, which shall be longing, shall from after the first day of Sep-

imported into England, Ireland, Wales, or tember, 1661, be imported into any of the town of Berwick upon Tweed, not having afore-mentioned places in any ship or vessel, been caught in vessels truly and properly be- but which is of Amnglish-built, and navilonging thereunto as proprietors and right gated... . owners thereof, and the said fish cured saved XIII. Provided also, That this act or any and dried, and the oil and blubber aforesaid thing therein contained, extend not, or be (which shall be accounted and pay as oil) not meant, to restrain the importing of any East-

34 DOCUMENTS OF AMERICAN History India commodities loaden in English built no sugars, tobacco, cotton-wool, indicoes, shipping, and whereof the master and three- ginger, fustick, or other dying wood, of the fourths of the mariners at least are English, growth, production or manutacture of any from the usual place or places for lading of English plantations in America, Asia or Africa, them in any part of those seas, to the south- shall be shipped, carried, conveyed or transward and eastward of Cabo bona Esperanza, ported from any of the said English planta-

although the said ports be not the very places _ tions to any land... other than to such

of their growth... . other English plantations as do belong to his AVIILI. And itis further enacted . . . That Majesty. ...

from and after the first day of April, 1661,

24. INDEPENDENCY IN COLONIAL MASSACHUSETTS 1661, 1678 The charter of 1629 did not specifically provide the second the reply of the General Court to that Massachusetts was bound by the laws of certain objections from the Lords of Council for Parliament, and on numerous occasions leaders Trade and Plantation to the Massachusetts laws.

of the Puritan colony insisted that Massachu- See, C. F. Mullett, Fundamental Law and the setts was bound only by laws passed by its legal American Revolution, ch. ii; B. F. Wright, Amerrepresentatives. Both John Winthrop and John ican Interpretations of Natural Law; A. B. Hart,

Cotton apparently held this view and it is im- ed. Commonwealth History of Massachusetts, plicit in the Massachusetts Body of Liberties of Vol. I. chs. v, xvii; J. T. Adams, Founding of 1641. The two documents below indicate the New England, ch. xii; J. Goebel, “King’s Law theory that “the lawes of England doe not reach and local custom in seventeenth century New America”. The first, submitted to the General England”, Columbia Law Rev., Vol. XXXI. Court June: 10, 1661, is a Declaration of Rights;

1, DECLARATION OF LIBERTIES. At Sessions of General Court, June 10, 1661. The Answer of the Committee unto the Matters proposed to their Consideration by the honored General Court.

(Records of the Governor and Company of the Massachusetts Bay in New England, Vol. IV, part 2, p. 25-6.)

Concerning our liberties ties have full power and authoritie, both 1. Wee conceive the pattent (under God) legislative & executive, for the gouvernment

to be the first & maine foundation of our of all the people heere, whither inhabitants civil politye, by a Gouvernor & Company, or straingers, both concerning eclesiasticks

according as 1s therein exprest. & in civils, without appeale, excepting lawe or 2. The Gouvernor & Company are, by the lawes repugnant to the lawes of Eng-

pattent, a body politicke, in fact & name. Jand.... . ' a 3. This body politicke is vested with 8. Wee conceive any imposition prejudicial]

power to make freemen... . to the country contrary to any just lawe of

6. The Gouvernor, Deputy Gouvernor, ours, not repugnant to the lawes of England, Asistants, & select representatives or depu- to be an infringement of our right. 2. ANSWER TO MR. SOLICITOR’S OBJECTIONS AS TO WHAT IS DEFECTIVE IN THE LAWS OF THE COLONY. October 2, 1678. (Records of the Governor and Company of the Massachusetts Bay in New England, Vol. V, p. 200-201.)

... To obj. 7. Your answer also therein and doe not reach America. The subjects of being aprooved, the Court adds, viz, That for his majestie here being not represented in the acts passed in Parliament for incourag- Parliament, so wee have not looked at ouring trade and navigation, wee humbly con- _ selves to be impeded in our trade by them, ceive, according to the usuall sayings of the nor yet wee abated in our relative allegiance learned in the lawe, that the lawes of Eng- to his majestie. However, so soone as wee land are bounded within the fower seas, understood his majesty’s pleasure, that those

CONCESSIONS TO THE PROVINCE OF PENNSYLVANIA 35 acts should be observed by his majesties country; and wee doubt not but it will apsubjects of the Massachusetts, which could peare, upon enquiry, that this restreint upon

not be without invading the liberties and us will be an abstraction of his majesties propperties of the subject, untill the Generall customes in England, and not an inlarge-

Court made provission therein by a law. ment thereof, for that the endeavour of which they did in October, 1677, and should the merchant here is to have his bancke in

be strictly attended from time to time, al- England; nor doe wee beleive that ever it though the same be a discouragement to cann be demonstrated, that that liberty hath trade, and a great damage to his majesties binn a losse to his majesties customes, esplantation, untill wee shall obteyne his pecially of late yeares, for that for whatever majesties gracious favour for that liberty of goods from any of his majesties plantations trade, which wee are not without hopes but wee pay his customes before wee have them;

that his majestie will see just occasion to and having paid the duties, it seemes hard

grant to us, for the encouraging of his that wee may not have liberty with our good subjects in a wilderness & hard coun- fellow-subjects in England. Wee speake not

try, who, by Gods speciall blessing upon thus to capitulate with his majesty, but their industry, have promoted the worke of humbly submitt the same to his royall navigation, by building ships, raising sea- clemency & grace.... men, and navigating them from country to

25. CONCESSIONS TO THE PROVINCE OF PENNSYLVANIA July 11, 1681 (F. N. Thorpe, ed. Federal and State Constitutions, Vol. V, p. 3044 ff.) William Penn secured a charter to Pennsylvania Governor of the province of Pennsylvania, March 4, 1681 and immediately began to adver- and those who are the adventurers and purtise his land and organize a colony. He drew up chasers in the same province... .

an account of the province and its advantages I. That so soon as it pleaseth God that which was widely ated in England and on the Continent. Atcircul the same time he began tothe sellabovesaid persons arrive there, a certain shares to those who wished to join him in the quantity of land, or ground plat, shall be enterprise and to arrange for land sales and (aid out, for a large town or city, in the grants. To regulate these matters he drafted a most convenient place, upon the river, for body of Conditions and Concessions, dealing health and navigation; and every purchaser chiefly with land and with Indian relations. and adventurer shall, by lot, have so much These Concessions were not designed as a con- land therein as will answer to the proporstitution or body of laws. The Frame of Gov- tion, which he hath bought, or taken up, ernment, comprising both a constitution and 4 upon rent: but it is to be noted, that the rhe dates GP ART ae oa ymayeatand” bor surveyors shall consider what roads or high Frame of Government can be found in Thorpe, “2S will be necessary to the cities, towns

Federal and State Constitutions, Vol. V. The © through the lands. Great roads from city Charter, the Concessions, and numerous related [to city not to contain less than forty foot, documents have been conveniently collected in in breadth, shall be first laid out and deCharter to William Penn and Laws of the clared to be for high-ways, before the diviProvince of Pennsylvania, ed. by S. George, dend of acres be laid out for the purchaser, B. M. Nead and T. McCamant. On Penn and the and the like observation to be had for the founding of Pennsylvania, see S. G. Fisher, The streets in the towns and cities, that there True Willliam Penn; B. Dobree, William Penn; may be convenient roads and streets ; W. R. Shepherd, History of Proprietary Gov. Served, not to be encroached upon by any ernment in Pennsylvania; I. Sharpless, History planter or builder, that none may build irof Quaker Government in Pennsylvania, 2 Vols. Yegularly to the damage of another. J thts,

M. R. Brailsford, The Making of William Penn: pre

| custom governs. ...

Certain conditions, or concessions, agreed Ill. That, when the country lots are laid upon by William Penn, Proprietary and out, every purchaser, from one thousand, to

36 DOCUMENTS OF AMERICAN History ten thousand acres, or more, not to have places shall be set apart, or erected, where above one thousand acres together, unless they shall pass the public stamp, or mark. In three years they plant a family upon If bad ware, and prized as good, or deceitful every thousand acres; but that all such as in proportion or weight, to forfeit the value, purchase together, lie together; and, if as as if good and full weight and proportion, to many as comply with this condition, that the the public treasury of this province, whether

whole be laid out together, , it be the merchandize of the Indian, or that VII. That, for every fifty acres, that shall of the planters.

be allotted to a servant, at the end of his XII. And forasmuch, as it is usual with service, his quit-rent shall be two shillings the planters to over-reach the poor natives of per annum, and the master, or owner of the the country, in trade, by goods not being servant, when he shall take up the other good of the kind, or debased with mixtures, fifty acres, his quit-rent, shall be four shil- with which they are sensibly aggrieved, it is lings by the year, or, if the master of the agreed, whatever is sold to the Indians, in servant (by reason in the indentures he is consideration of their furs, shall be sold in so obliged to do) allot out to the servant fifty the market place, and there suffer the test, acres in his own division, the said master whether good or bad; if good, to pass; if not shall have, on demand, allotted him, from the good, not to be sold for good, that the nagovernor, the one hundred acres, at the chief tives may not be abused, nor provoked.

rent of six shillings per annum. XIII. That no man shall, by any ways or

VIII. And, for the encouragement of such means, in word, or deed, affront, or wrong aS are ingenious and willing to search out any /ndian, but he shall incur the same pengold and silver mines in this province, it is alty of the law, as if he had committed it hereby agreed, that they have liberty to bore against his fellow planter, and if any Indian and dig in any man’s property, fully paying shall abuse, in word, or deed, any planter of the damages done; and in case a discovery this province, that he shall not be. his own should be made, that the discoverer have judge upon the Jndian, but he shall make his one-fifth, the owner of the soil (if not the complaint to the governor of the province, discoverer) a tenth part, the Governor, two- or his lieutenant, or deputy, or some inferior fifths, and the rest to the public treasury, magistrate near him, who shall, to the utmost saving to the king the share reserved by of his power, take care with the king of the

patent. said Indian, that all reasonable satisfaction IX. In every hundred thousand acres, the be made to the said injured planter. . . . Governor and Proprietary, by lot, reserveth XV. That the Jndzans shall have liberty to

ten to himself, what shall lie but in one place. do all things relating to improvement of their

X. That every man shall be bound to ground, and providing sustenance for their plant, or man, so much of his share of land families, that any of the planters shall enjoy. as shall be set out and surveyed, within three XVI. That the laws, as to slanders, drunkyears after it is so set out and surveyed, or enness, swearing, cursing, pride in apparel, else it shall be lawful for newcomers to be _ trespasses, distriesses, replevins, weights, and settled thereupon, paying to them their sur- measures, shall be the same as in England, vey money, and they go up higher for their till altered by law in this province. .. .

shares. XVIII. That, in clearing the ground, care

XJ. There shall be no buying and selling, be taken to leave one acre of trees for every be it with an /ndian, or one among another, five acres cleared, especially to preserve oak of any goods to be exported, but what shall and mulberries, for silk and shipping... .

be performed in public market, when such WILLIAM PENN.

Tur EARLIEST PROTEST AGAINST SLAVERY 37 26. THE EARLIEST PROTEST AGAINST SLAVERY Resolutions of Germantown Mennonites. February 18, 1688 (P. G. Mode, ed. Source Book and Bibliographical Guide for American Church History, p. 552-553) Negro slavery was first introduced to the Eng- children of these poor creatures to other lish colonies in America in 1619; though the men. Ah! do consider well this thing, you number of negro slaves in the seventeenth cen- who do it, if you would be done at this tury was comparatively small, there oe fam, manner—and if it is done according to the Quakers and Mennonites. The protest of 1688 Christianity ! You Thie., ve land ane oer

rotest against the institution, especia rom utes _

is the earliest known protest against slavery in Many Mm this thing. This makes an 1 repor the American colonies. See, M. S. Locke, Anti- 1m all those countries of Europe, where they Slavery in America, 1619-1808 (Radcliffe Col- hear of [it], that the Quakers do here handel

lege Monographs). men as they handel there the cattle. And for

that reason some have no mind or inclinaThis is to the monthly meeting held at tion to come hither. And who shall maintain

Richard Worrell’s: this your cause, or plead for it? Truly, we These are the reasons why we are against cannot do so, except you shall inform us

the traffic of men-body, as followeth: Is better hereof, viz.: that Christians have there any that would be done or handled at liberty to practice these things. Pray, what

this manner? viz., to be sold or made a slave _ thing in the world can be done worse towards for all the time of his life? How fearful and us, than if men should rob or steal us away,

faint-hearted are many at sea, when they and sell us for slaves to strange countries; see a strange vessel, being afraid it should separating husbands from their wives and be a Turk, and they should be taken, and children. Being now this is not done in the sold for slaves into Turkey. Now, what is manner we would be done at; therefore, we this better done, than Turks do? Yea, rather contradict, and are against this traffic of it is worse for them, which say they are men-body. And we who profess that it is not Chrfstians; for we hear that the most part lawful to steal, must, likewise, avoid to of such negers are brought hither against purchase such things as are stolen, but rather their will and consent, and that many of help to stop this robbing and stealing, if posthem are stolen. Now, though they are black, sible. And such men ought to be delivered we cannot concelve there is more liberty to out of the hands of the robbers, and set free have them slaves, as it is to have other white as in Europe. Then is Pennsylvania to have ones. There is a saying, that we should do to a good report, instead, it hath now a bad one,

all men like as we will be done ourselves; for this sake, in other countries; Especially making no difference of what generation, whereas the Europeans are desirous to know descent, or colour they are. And those who in what manner the Quakers do rule in their steal or rob men, and those who buy or pur- __ province; and most of them do look upon us

chase them, are they not all alike? Here is with an envious eye. But if this is done well, liberty of conscience, which is right and what shall we say is done evil? reasonable; here ought to be likewise liberty If once these slaves (which they say are of the body, except of evil-doers, which is so wicked and stubborn men,) should join another case. But to bring men hither, or to themselves—fight for their freedom, and rob and sell them against their will, we stand handel their masters and mistresses, as they against. In Europe there are many oppressed did handel them before; will these masters for conscience-sake; and here there are those and mistresses take the sword at hand and oppressed which are of a black colour. And war against these poor slaves, like, as we are we who know that men must not commit able to believe, some will not refuse to do? adultery—some do commit adultery im Or, have these poor negers not as much right others, separating wives from their husbands, to fight for their freedom, as you have to and giving them to others: and some sell the keep them slaves?

38 DOCUMENTS OF AMERICAN History Now consider well this thing, if it is good or fearful thing, that men should be handelled or bad. And in case you find it to be good to so in Pennsylvania. handel these blacks in that manner, we de- This is from our meeting at Germantown, sire and require you hereby lovingly, that held y® 18th of the 2d month, 1688, to be you may inform us herein, which at this delivered to the monthly meeting at Richard time never was done, viz., that Christians Worrell’s.

have such a liberty to do so. To the end we Garret Henderich, Shall be satisfied on this point, and satisfy Derick op de Graeff, likewise our good friends and acquaintances Francis Daniel Pastorius, in our native country, to whom it is a terror, Abram op de Graeff. 27. THE NAVIGATION ACT OF 1696 (D. Pickering, Statutes at Large, Vol. IX, p. 428 ff.) The Navigation Act of 1696 was designed to put authorities, for visiting and searching of an end to the widespread violations and evasions ships, and taking their entries, and for seizing

of the earlier navigation acts. This act, sayS and securing or bringing on shore any of the Professor Channing, may be said to have added goods prohibited to be imported or exported the finishing touch to the colonial system so f hich duti bl far as shipping was concerned.” For references °°: OF 1OF whic any Guiles are paya € oF

see Doc. No. 23. ought to have been paid . . . as are provided for the officers of the customs in England by

An act for preventing frauds, and regulating tecnth nar of the nelgn ot Kine re four. abuses in the plantation trade. Second, and also to enter houses or wareII. Be it enacted ... That after the five houses, to search for and seize any such and twentieth day of March, 1698, no goods’ goods... . or merchandizes whatsoever shall be imported IX. And it is further enacted ... That into, or exported out of, any colony or planta- all Jaws, by-laws, usages or customs, at this tion to his Majesty, in Asza, Africa, or Amer- time, or which hereafter shall be in practice

ica, belonging, or in his possession, ... or ... in any of the said plantations, which are shall be laden in, or carried from any one port in any wise repugnant to the before menor place in the said colonies or plantations to tioned laws, or any of them, so far as they any other port or place in the same, the king- do relate to the said plantations, or any of dom of England, dominion of Wales, or town them, or which are any ways repugnant to of Berwick upon Tweed, in any ship or bot- this present act, or to any other law hereafter tom, but what is or shall be of the built of — to be made in this kingdom, so far as such law

England, or of the built of Jreland, or the shall relate to and mention the said plantasaid colonies or plantations, and wholly owned _ tions, are illegal, null and void, to all intents

by the people thereof, or any of them, and and purposes whatsoever... . navigated with the masters and three fourths XIV. And whereas several ships and vesof the mariners of the said places only sels laden with tobacco, sugars, and other ... under pain of forfeiture of ship and goods of the growth and product of his Maj-

goods... . esty’s plantations in America, have been disIII. [Goods may be imported and exported charged in several ports of the kingdoms of in prize ships, the master and three fourths Scotland and Ireland, contrary to the laws and

the mariners being English. | statutes now in being, under pretence thai the

VI. And for the more effectual preventing said ships and vessels were driven thither by of frauds, and regulating abuses in the planta- stress of weather, or for want of provisions, tion trade in America, be it further enacted and other disabilities could not proceed on

.. . that the officers for the collecting and their voyage: for remedy whereof be it managing his Majesty’s revenue, and inspect- enacted... That from and after the first ing the plantation trade, in any of the said day of December, 1696, it shall not be lawful, plantations, shall have the same powers and on any pretence whatsoever, to put on shore

PENN’S PLAN OF UNION 39 in the said kingdoms of Scotland or Ireland, and shall take the oaths injoined by this or any goods or merchandize of the growth or any other act to be taken by the governors or product of any of his Majesty’s plantations commanders in chief in other his Majesty’s aforesaid, unless the same shall have been colonies and plantations, before their enterfirst landed in the kingdom of England, do- ing upon their respective governments, under minion of Wales, or town of Berwick upon _ the like penalty, as his Majesty’s governors Tweed, and paid the rates and duties where- and commanders in chief are by the said acts

with they are chargeable by law... . liable to.

XVI. And be it further enacted . . . That XVII. And for the more effectual prevenall persons and their assignees, claiming any tion of frvuds which may be used to elude right or propriety in any islands or tracts of _ the intenticn of this act, by colouring foreign

land upon the continent of America, by ships under English names, be it further charter or letters patents, shall not at any enacted... that from and after the five time hereafter aliene, sell or dispose of any and twentieth day of March, 1698, no ship or of the said islands, tracts of lands or pro- vessel whatsoever shall be deemed or pass as prieties, other than to the natural-born sub- a ship of the built of England, Ireland, Wales, jects of England, Ireland, dominion of Wales, Berwick, Guernsey, Jersey, or any of his and town of Berwick upon Tweed, without Majesty’s plantations in America, so as to be

the licence and consent of his Majesty ...; qualified to trade to, from or in any of the and all governors nominated and appointed plantations, until the person or persons claimby any such persons or proprietors, who shall ing property in such ship or vessel shall regbe intitled to make such nomination, shall be ister the same... . allowed and approved of by his Majesty .. .

28. PENN’S PLAN OF UNION 1697

(E. B. O'Callaghan, ed. Documents Relative to the Colonial History of the State of New York, Vol. IV, p. 296-7) This is probably the earliest of the plans of representatives or deputies, which in the union for the English colonies in America. For whole make the congress to consist of twenty Penn’s plan, and other early plans such as me persons. of Daniel Coxe, see, R. Frothingham, Rise of the 3. That the king’s commissioner, for that

chair and preside in the said congress.

A brief and plain scheme how the English 4. That they shall meet as near as concolonies in the North parts of America,—viz., veniently may be to the most central colony

Boston, Connecticut, Rhode Island, New for ease of the deputies. York, New Jerseys, Pennsylvania, Maryland, 5. Since that may in all probability be

Virginia, and Carolina,—may be made more New York, both because it is near the centre Reps the United Site,» 110 S380,peace purpose specially appointed, useful to the crown and one8 another’s of the colonies and for that it is a frontier shall have the

and safety with an universal concurrence. and in the king’s nomination, the governor of 1. That the several colonies before men- that colony may therefore also be the king’s tioned do meet once a year, and oftener if high commissioner during the session, after need be during the war, and at least once in’ the manner of Scotland. two years in times of peace, by their stated 6. That their business shall be to hear and and appointed deputies, to debate and re- adjust all matters of complaint or difference solve of such measures as are most advisable between province and province. As, Ist, for their better understanding and the public where persons quit thelr own province and

tranquillity and safety. go to another, that they may avoid their just 2. That, in order to it, two persons, well debts, though they be able to pay them; 2d, qualified for sense, sobriety, and substance, where offenders fly justice, or Justice cannot

be appointed by each province as their well be had upon such offenders in the

40 DOCUMENTS OF AMERICAN HIsToRy provinces that entertain them; 3d, to pre- matter with more freedom and satisfaction, vent Or cure injuries in point of commerce; and better adjust and balance their affairs in 4th, to consider the ways and means to sup- all respects for their common safety. port the union and safety of these provinces 7. That, in times of war, the king’s high against the public enemies. In which congress commissioner shall be general or chief comthe quotas of men and charges will be much mander of the several quotas upon service

easier and more equally set than it is pos- against the common enemy, as he shall be sible for any establishment made here to do; advised, for the good and benefit of the for the provinces, knowing their own con- whole. dition and one another’s, can debate that

29. PENNSYLVANIA CHARTER OF PRIVILEGES October 28, 1701 (F. N. Thorpe, ed. Federal and State Constitutions, Vol. V, p. 3076 ff.) The Frame of Government of 1682, proving Privileges, so far as in me lieth, to be held, cumbersome and unsatisfactory in detail, was re- enjoyed and kept, by the Freemen, Planters

2, 1683. e following year Penn returned to . . . ar

placed by are Great Charter and Frame of Ape and Adventurers, and other Inhabitants of England. He soon fell into disfavor with King en cre Saud F B for oven and Territories

William and in 1692 his colony was taken away " from him and placed under the authority of

Governor Fletcher of New York. Two years later

it was restored to Penn, but Penn was not able First to return to America until 1699, and meanwhile affairs became thoroughly unsatisfactory and dis- BECAUSE no People can be truly happy,

organized. Under these circumstances, Penn though under the greatest Enjoyment of agreed to the appointment of committees from Ciyi Liberties, if abridged of the Freedom of their Consciences, as to their Religious October 28, 1701, remained in force until the Profession and Worship: And Almighty God Revolution. For references see Doc. No. 25. being the only Lord of Conscience, Father of Lights and Spirits; and the Author as well as

the council and assembly to draft a new frame . , . ~ of government. This charter, finally agreed upon a

William Penn, Proprietary and Gover- Object of all divine Knowledge, Faith and nor of the Province of Pensilvantia and Worship, who only doth enlighten the Minds, Territories thereunto belonging, To all to and persuade and convince the Understandwhom these Presents shall come, sendeth ings of People, I do hereby grant and declare, Greeting. Whereas King Charles the Second, That no Person or Persons, inhabiting in this by His Letters Patents, under the Great Seal province or Territories, who shall confess of England, bearing Date the Fourth Day of and acknowledge One almighty God, the March, in the Year One Thousand Six Hun- Creator, Upholder and Ruler of the World: dred and Eighty-one, was graciously pleased and profess him or themselves obliged to to give and grant unto me, and my Heirs and_ live quietly under the Civil Government, Assigns for ever, this Province of Pemszl- shall be in any Case molested or prejudiced, vania, with divers great Powers and Jurisdic- in his or their Person or Estate, because of tions for the well Government thereof. ... his or their conscientious Persuasion or PracKnow YE THEREFORE, That for the _ tice, nor be compelled to frequent or main- | further Well-being and good Government of _ tain any religious Worship, Place or Ministry,

the said Province, and Territories and in Pur- contrary to his or their Mind, or to do or suance of the Rights and Powers before- suffer any other Act or Thing, contrary to mentioned, I the said Wullzam Penn do _ their religious Persuasion. declare, grant and confirm, unto all the Free- AND that all Persons who also profess to men, Planters and Adventurers, and other believe in Jesus Christ, the Saviour of the Inhabitants of this Province and Territories, World, shall be capable (notwithstanding

these following Liberties, Franchises and their other Persuasions and Practices in

PENNSYLVANIA’S CHARTER OF PRIVILEGES 4] Point of Conscience and Religion) to serve nominated shall serve in the said Office durthis Government in any Capacity, both legis- ing good Behavior.

latively and executively, he or they solemnly IV Tuat the Laws of this Government promising, when lawfully required, Allegiance shall be in this Stile, viz. By the Governor, to the King as Sovereign, and Fidelity to the with the Consent and Approbation of the Proprietary and Governor, and taking the Freemen in General Assembly met; and shall Attests as now established by the Law made be, after Confirmation by the Governor, forthat New-Castle, in the Year One Thousand with recorded in the Rolls Office, and kept at and Seven Hundred, entitled, An Act direct- Philadelphia, unless the Governor and Asseming the Attests of several Officers and Minis- bly shall agree to appoint another Place.

ters, aS now amended and confirmed this V Tuart all Criminals shall have the same

present Assembly. Privileges of Witnesses and Council as their II For the well governing of this Province Prosecutors. ,

and Territories, there shall be an Assembly VI Tuat no Person or Persons shall or yearly chosen, by the Freemen thereof, to may, at any Time hereafter, be obliged to anconsist of Four Persons out of each County, swer any Complaint, Matter or Thing whatof most Note for Virtue, Wisdom and _ soever, relating to Property, before the GovAbility... . Which Assembly shall have ernor and Council, or in any other Place, but Power to chuse a Speaker and other their in ordinary Course of Justice, unless Appeals Officers; and shall be Judges of the Qualifica- thereunto shall be hereafter by Law aptions and Elections of their own Members; _ pointed.

sit upon their own Adjournments; appoint VII Txat no Person within this GovernCommittees; prepare Bills in order to pass ment, shall be licensed by the Governor to into Laws; impeach Criminals, and redress keep an Ordinary, Tavern or House of PubGrievances; and shall have all other Powers lick Entertainment, but such who are first and Privileges of an Assembly, according to recommended to him, under the Hands of the the Rights of the free-born Subjects of Eng- Justices of the respective Counties, signed in land, and as is usual in any of the King’s open Court; which Justices are and shall be

Plantations in America. ... hereby impowered, to suppress and forbid III Tat the Freemen in each respective any Person, keeping such Publick-House as County, at the Time and Place of Meeting aforesaid, upon their Misbehavior, on such for Electing their Representatives to serve in Penalties as the Law doth or shall direct; Assembly, may as often as there shall be and to recommend others from time to time, Occasion, chuse a double Number of Persons as they shall see Occasion... . to present to the Governor for Sheriffs and VIII But because the Happiness of ManCoroners to serve for Three Years, if so long kind depends so much upon the Enjoying of they behave themselves well; out of which Liberty of their Consciences as aforesaid, I

respective Elections and Presentments, the do hereby solemnly declare, promise and Governor shall nominate and commissionate grant, for me, my Heirs and Assigns, That one for each of the said Offcers, the Third the First Article of this Charter relating to Day after such Presentment, or else the First Liberty of Conscience, and every Part and named in such Presentment, for each Office as Clause therein, according to the true Intent aforesaid, shall stand and serve in that Office and Meaning thereof, shall be kept and refor the Time before respectively limited; and main, without any Alteration, inviolably for in Case of Death or Default, such Vacancies ever.

shall be supplied by the Governor, to serve Anp Lastiy, I the said William Penn,

to the End of the said Term... . Proprietary and Governor of the Province of

AnD that the Justices of the respective Pemnsilvania, and Territories thereunto beCounties shall or may nominate and present longing, for myself, my Heirs and Assigns, to the Governor Three Persons, to serve for have solemnly declared, granted and conClerk of the Peace for the said County, when firmed, and do hereby solemnly declare, there is a Vacancy, one of which the Gover- grant and confirm, That neither I, my Heirs nor shall commissionate within Tex Days _ or Assigns, shall procure or do any Thing or after such Presentment, or else the First Things whereby the Liberties in this Charter

42 DOCUMENTS OF AMERICAN HtisTorRy contained and expressed, nor any Part any Person or Persons, contrary to these thereof, shall be infringed or broken: And Presents, it shall be held of no Force or if any thing shall be procured or done, by Effect... . 30. THE MOLASSES ACT May 17, 1733 (D. Pickering, Statutes at Large, Vol. XVI, p. 374 ff.) This Act, placing heavy duties upon the im- quantity: and upon all molasses or syrups of portation of rum and molasses from the French = sych foreign produce or manufacture as West Indies to the American colonies, was passed aforesaid, which shall be imported or brought

in response to the demand of the English mer- into any of the said colonies or plantations chants with interests in the British West Indies. of or belonging to his Majesty, the sum of Had it been enforced, it would have played havoc ; ; with the triangle trade of the New England mer- ‘1% Pence of like money for every gallon

chants; fortunately for them it was not enforced. thereof... ; and upon all sugars and

See, G. L. Beer, Commercial Policy of England paneles of such foreign growth, produce or Toward the American Colonies; E. B. Greene, manufacture as aforesaid, which shall be Provincial America, ch. xvii; J. T. Adams, Revo- imported into any of the said colonies or

lutionary New England, ch. viii; W. J. Ashley, plantations ..., a duty after the rate of Surveys, Historic and Economic; C. M. Andrews, five shillings of like money, for every hun“Anglo-French Commercial Rivalry, 1700-1750”, dred weight Avoirdupoize. .. .

American Hist. Rev., Vol. XX. IV. And be it further enacted . . . , That

An act for the better securing and encourag- from and after December 25, 1733, no sugars,

ing the trade of his Majesty’s sugar paneles, syrups or molasses, of the growth,

colonies in America. product and manufacture of any of the

WHEREAS the welfare and prosperity of colonies or plantations in America, nor any your Majesty’s sugar colonies in America are rum or spirits of America, except of the of the greatest consequence and importance growth or manufacture of his Majesty’s to the trade, navigation and strength of this sugar colonies there, shall be imported by kingdom: and whereas the planters of the any person or persons whatsoever into the said sugar colonies have of late years fallen kingdom of Jreland, but such only as shall be under such great discouragements, that they fairly and bona fide loaden and shipped in are unable to improve or carry on the sugar Great Britain in ships navigated according to trade upon an equal footing with the foreign the several laws now in being in that behalf, sugar colonies, without some advantage and under the penalty of forfeiting all such sugar, relief be given to them from Great Britain: paneles, syrups or molasses, rum or spirits,

for remedy whereof ... beit enacted... , or the value thereof, together with the ship That from and after [December 25, 1733,] or vessel in which the same shall be imthere shall be raised, levied, collected and ported,.. .

paid, unto and for the use of his Maj- IX. And it ishereby further enacted . . . , esty ..., upon all rum or spirits of the That in case any sugar or paneles of the produce or manufacture of any of the growth, produce or manufacture of any of colonies or plantations in America, not in the — the colonies or plantations belonging to or in

possession or under the dominion of his the possession of his Majesty ..., which Majesty ..., which at any time or times _ shall have been imported into Great Britain within or during the continuance of this act, after June 24, 1733, shall at any time within shall be imported or brought into any of the one year after the importation thereof, be colonies or plantations in America, which again exported out of Great Britain, . . . all now are or hereafter may be in the possession the residue and remainder of the subsidy or or under the dominion of his Majesty ..., duty, by any former act or acts of parliament the sum of nine pence, money of Great granted and charged or. such sugar or paneles

Britain, ... for every gallon thereof, and as aforesaid, shall without any delay or reafter that rate for any greater or lesser ward be repaid to such merchant or mer-

Tue ALBANY PLAN OF UNION 43 chants, who do export the same, within one said sugar so exported, was produced from

month after demand thereof. ‘ brown and muscovado sugar, and that as he

X. And it is hereby further enacted ..., verily believes, the same was imported from That from and after June 24, 1733, for every some of the colonies or plantations in hundred weight of sugar refined in Great America belonging to and in the possession Britain . . . , which shall be exported out of of the crown of Great Britain, and that as he

this kingdom, there shall be, by virtue of verily believes the duty of the said brown this act, repaid at the customhouse to the and muscovado sugar was duly paid at the exporter, within onc month after the demand time of the importation thereof, and that the thereof, over and above the several sums of same was duly exported... .

three shillings and one shilling per hundred, XIII. Provided nevertheless, That noth-

payable by two former acts of parliament, ing herein contained shall extend... to one of them made in the ninth and tenth hinder or restrain the importation of any years of the reign of his late Majesty King sugars... of any of the dominions belongWilliam the Third, and the other in the sec- ing to the King of Spain, or the King of

ond and third years of the reign of her late Portugal, from any part or place from Majesty Queen Anne, the further sum of two whence such sugars might lawfully have been shillings, oath or solemn affirmation as afore- imported before the making of this act. ... said, being first made by the refiner, that the

31. THE ALBANY PLAN OF UNION 1754

(Works of Benjamin Franklin, ed. by J. Sparks, Vol. III, p. 36 ff.) This plan of union, devised by Franklin, con- that shall be especially for that purpose contained the germs of the solution of the problem vened, may and shall choose members for the of imperial order, ultimately solved by the Fed- Grand Council, in the following proportion, eral Constitution of the United States. An in- that js to say

teresting discussion of the Plan is in R. Frothing- Massachusetts Bay 7

ham, Rise of the Republic of the United States, . sree

ch. iv; H. L. Osgood, American Colonies in the New Hampshire reteeeeeeeeeee 2

Eighteenth Century, Vol. IV, ch. xiv; A. C. Connecticut .......-.eeee eee 9 McLaughlin, “The Background of American Rhode Island ................ 2

Federalism,” America and Britain, p. 147 ff. In New York ........0220eeeeeee 4 the document Franklin’s explanatory notes are New Jersey .........---0000- 3

omitted. . PennsylvaniaMaryland ..........+2+-46 .............222+08 4 It is proposed that humble application be Virginia 2... . ccc eee eee eee eee 7

made for an act of Parliament of Great North Carolina ............... 4 Britain, by virtue of which one general South Carolina ............... 4

government may be formed in America, in- — cluding all the said colonies, within and under 48

which government each colony may retain its 3. ———who shall meet for the first time at present constitution, except in the particulars the city of Philadelphia, being called by the

wherein a change may be directed by the President-General as soon as conveniently

said act, as hereafter follows. may be after his appointment.

1. That the said general government be 4. That there shall be a new election of administered by a President-General, to be the members of the Grand Council every appointed and supported by the crown; and three years; and, on the death or resignation a Grand Council, to be chosen by the repre- of any member, his place should be supsentatives of the people of the several plied by a new choice at the next sitting of Colonies met in their respective assemblies. the Assembly of the Colony he represented. 2. That within ———- months after the pass- 5. That after the first three years, when ing such act, the House of Representatives the proportion of money arising out of each that happen to be sitting within that time, or Colony to the general treasury can be known,

44 DOCUMENTS OF AMERICAN History the number of members to be chosen for each build forts for the defence of any of the Colony shall, from time to time, in all en- Colonies, and equip vessels of force to guard suing elections, be regulated by that propor- the coasts and protect the trade on the ocean, tion, yet so as that the number to be chosen lakes, or great rivers; but they shall not

by any one Province be not more than impress men in any Colony, without the

seven, nor less than two. consent of the Legislature.

6. That the Grand Council shall meet 16. That for these purposes they have

once in every year, and oftener if occasion power to make laws, and lay and levy such require, at such time and place as they shall general duties, imposts, or taxes, as to them adjourn to at the last preceding meeting, or shall appear most equal and just (consideras they shall be called to meet at by the ing the ability and other circumstances of the

President-General on any emergency; he inhabitants in the several Colonies), and

having first obtained in writing the consent such as may be collected with the least inof seven of the members to such call, and convenience to the people; rather discouragsent duly and timely notice to the whole. ing luxury, than loading industry with un7, That the Grand Council have power to necessary burdens.

choose their speaker; and shall neither be 17. That they may appoint a General

dissolved, prorogued, nor continued sitting Treasurer and Particular Treasurer in each longer than six weeks at one time, without government when necessary; and, from time their own consent or the special command of to time, may order the sums in the treasuries

the crown. of each government into the general treas8. ‘That the members of the Grand Council ury; or draw on them for special payments, shall be allowed for their service ten shillings as they find most convenient.

sterling per diem, during their session and 18. Yet no money to issue but by joint journey to and from the place of meeting; orders of the President-General and Grand twenty miles to be reckoned a day’s journey. Council; except where sums have been ap-

9, That the assent of the President- propriated to particular purposes, and the

General be requisite to all acts of the Grand President-General is previously empowered Council, and that it be his office and duty to _ by an act to draw such sums.

cause them to be carried into execution. 19. That the general accounts shall be 10. That the President-General, with the yearly settled and reported to the several advice of the Grand Council, hold or direct Assemblies.

all Indian treaties, in which the general 20. That a quorum of the Grand Council, interest of the Colonies may be concerned; empowered to act with the President-General, and make peace or declare war with Indian do consist of twenty-five members; among

nations. whom there shall be one or more from a

11. That they make such laws as they majority of the Colonies. judge necessary for regulating all Indian 21. That the laws made by them for the

trade. purposes aforesaid shall not be repugnant,

12. That they make all purchases from but, as near as may be, agreeable to the Indians, for the crown, of lands not now laws of England, and shall be transmitted to within the bounds of particular Colonies, or the King in Council for approbation, as soon

that shall not be within their bounds when as may be after their passing; and if not some of them are reduced to more conven-_ disapproved within three years after presen-

ient dimensions. tation, to remain in force.

13. That they make new settlements on 22. That, in case of the death of the

such purchases, by granting lands in the President-General, the Speaker of the Grand King’s name, reserving a quitrent to the Council for the time being shall succeed, and crown for the use of the general treasury. be vested with the same powers and authori14. That they make laws for regulating ties, to continue till the King’s pleasure be

and governing such new settlements, till the known.

crown shall think fit to form them into 23. That all military commission officers,

particular governments. whether for land or sea service, to act under 15. That they raise and pay soldiers and this general constitution, shall be nominated

JAMES OTIS’ SPEECH 45 by the President-General; but the approba- General and Grand Council can be known. tion of the Grand Council is to be obtained, 25. That the particular military as well before they receive their commissions. And as civil establishments in each Colony remain all civil officers are to be nominated by the’ in their present state, the general constituGrand Council, and to receive the President- tion notwithstanding; and that on sudden General’s approbation before they officiate. emergencies any Colony may defend itself, 24. But, in case of vacancy by death or and lay the accounts of expense thence arisremoval of any officer, civil or military, un- ing before the President-General and General der this constitution, the Governor of the Council, who may allow and order payment Province in which such vacancy happens may’ of the same, as far as they judge such acappoint, till the pleasure of the President- counts ‘just and reasonable.

32. JAMES OTIS’ SPEECH AGAINST THE WRITS OF ASSISTANCE February 24, 1761 (The Works of John Adams, ed. by C. F. Adams, Vol. II, p. 521 ff.) This famous case involved the question of the suspected, and good grounds of suspicion constitutionality of the writs of assistance issued appearing.

from the court of exchequer in England. On the Make oath coram Lord Treasurer. or Exapplication of the surveyor-general of the port chequer in England, or a magistrate here of Boston for the grant of these writs, some Bos- and get a special warrant for the public goo d.

ton merchants engaged Oxenbridge Thacher and to infri h . P good, James Otis to argue against their issuance. No o iniringe the privilege of house.

formal record of Otis’s argument exists. John General warrant to search for felonies.

Adams, however, took notes of the speech, and Hawkins, Pleas of the Crown. Every petty these are given in the first extract below. G. R. officer, from the highest to the lowest; and Minot in his History of Massachusetts, 1748- if some of them are common, others are un1765, Vol. II, p. 87-99, expanded these notes into common.

a version of the argument. Adams’s revision of Government justices used to issue such the Minot version, is given in the second ex- perpetual edicts. (Q. With what particular

tract below. For aBut learned the whole ; reference.) one discussion precedent,ofand that in;

question see the tothe J. Quincy, th . Il., £ Charl , chamber of Cases Argued andAppendix Adjudged in Superior ©Reports relgn 0 arles when star

Court of Judicature of the Province of Massa- Powers and all powers but lawful and useful |

chusetts Bay between 1761 and 1772, p. 479 ff, Powers, were-pushed to extremity.

by Justice Horace Gray. Otis’s argument con- The authority of this modern practice tains one of the earliest statements of the doc- of the Court of Exchequer. It has an trine that a law against natural law is void. For Imprimatur. But what may not have? It the history of this theory see, C. F. Mullett, may be owing to some ignorant Clerk of the Fundamental Law and the American Revolu- Exchequer. But all precedents, and_ this tion. A copy of a writ of Assistance can be found among the rest. are under th

in W. MacDonald, ed. Select Charters, etc., p. 10N8 under the control of the

958 ff. principles of law. Lord Talbot. Better to observe the known principles of law than any

one precedent, though in the House of Lords. : 1. Ottis. This writ is against the funda- As to Acts of Parliament. An act against mental principles of law. The privilege of the Constitution is void; an act against natthe House. A man who is quiet, is as secure ural equity is void; and if an act of Parliain his house, as a prince in his castle—not- ment should be made, in the very words of withstanding all his debts and civil processes this petition it would be void. The executive

of any kind. But— Courts must pass such acts into disuse.

For flagrant crimes and in cases of great 8 Rep. 118 from Viner. Reason of the

public necessity, the privilege may be in- common law to control an act of Parliament. fringed on. For felonies an officer may break Iron manufacture. Noble Lord’s proposal upon process and oath, that is, by a special that we should send our horses to England to warrant to search such a house, sworn to be be shod. If an officer will justify under a

46 DOCUMENTS OF AMERICAN HisTorRy writ, he must return it. 12. Mod. 396, per- can be granted, for I beg leave to make petual writ. Statute Charles II. We have all some observations on the writ itself, before as good right to inform as custom-house of- I proceed to other acts of Parliament. In the ficers, and every man may have a general first place, the writ is universal, being diirreturnable commission to break houses. rected “to all and singular Justices, Sheriffs, By 12 of Charles, on oath before Lord Constables, and other officers and subjects;” Treasurer, Barons of Exchequer, or Chief so, that, in short, it is directed to every subMagistrate, to break, with an officer. 14 C. to ject in the King’s dominions. Every one with issue a warrant requiring sheriffs, &c. to as- this writ may be a tyrant; if this commission sist the officers to search for goods not en- be legal, a tyrant in a legal manner also may tered or prohibited. 7 & 8. W. & M. gives control, imprison, or murder any one within officers in plantations same powers with of- the realm. In the next place, it is perpetual:

ficers in England. there is no return. A man is accountable to Continuance of writs and processes proves no person for his doings. Every man may no more, nor so much, as I grant a special reign secure in his petty tyranny, and spread writ of assistance on special oath for special terror and desolation around him. In the third

purpose. place, a person with this writ, in the day-

Pew indorsed warrant to Ware. Justice time, may enter all houses, shops, &c. at will, Walley searched House. Province Law. p. 114. and command all to assist him. Fourthly, Bill in chancery. This Court confined their by this writ not only deputies &c. but even

chancery power to revenue, &c. their menial servants, are allowed to lord it

over us. Now one of the most essential 2... . In the first place, may it please branches of English liberty is the freedom

your Honors, I will admit that writs of one of one’s house. A man’s house is his castle; kind may be legal; that is, special writs, and whilst he is quiet, he is as well guarded

directed to special officers, and to search as a prince in his castle. This writ, if it certain houses, &c. specially set forth in should be declared legal, would totally anthe writ, may be granted by the Court of nihilate this privilege. Custom-house officers Exchequer at home, upon oath made before may enter our houses, when they please; the Lord Treasurer by the person who asks we are commanded to permit their entry. it, that he suspects such goods to be con- Their menial servants may enter, may break

cealed in those very places he desires to locks, bars, and every thing in their way; search. The act of 14 Charles II, which and whether they break through malice or Mr. Gridley mentions, proves this. And in revenge, no man, no court, can inquire. Bare

this light the writ appears like a warrant suspicion without oath is sufficient. This from a Justice of the Peace to search for wanton exercise of his power is not a stolen goods. Your Honors will find in chimerical suggestion of a heated brain. I the old books concerning the office of a will mention some facts. Mr. Pew had one Justice of the Peace, precedents of general of these writs, and when Mr. Ware succeeded

warrants to search suspected houses. But him, he endorsed this writ over to Mr. in more modern books you will find only Ware; so that these writs are negotiable special warrants to search such and such from one officer to another; and so your

houses specially named, in which the com- Honors have no opportunity of judging the plainant has before sworn that he suspects persons to whom this vast power is delegated. his goods are concealed; and you will find Another instance is this: Mr. Justice Walley it adjudged that special warrants only are had called this same Mr. Ware before him,

legal. In the same manner I rely on it, that by a constable, to answer for a breach of the writ prayed for in this petition, being Sabbath-day acts, or that of profane sweargeneral, is illegal. It is a power, that places ing. As soon as he had finished, Mr. Ware the liberty of every man in the hands of asked him if he had done. He replied, Yes /

every petty officer. I say I admit that special Well then, said Mr. Ware, I will show you a writs of assistance, to search special places, little of my power. I command you to permay be granted to certain persons on oath; mit me to search your house for uncustomed

but I deny that the writ now prayed for goods. And went on to search his house

THoe PROCLAMATION OF 1763 47 from the garret to the cellar; and then namely, in the reign of Charles II, when

served the constable in the same manner. star-chamber powers were pushed to exBut to show another absurdity in this writ; tremity by some ignorant clerk of the exif it should be established, I insist upon it, chequer. But had this writ been in any book every person by the 14 Charles IJ. has this whatever, it would have been illegal. All power as well as custom-house officers. The precedents are under the control of the prinwords are, “It shall be lawful for any per- ciples of law. Lord Talbot says it is better to

son or persons authorized,’ &c. What a observe these than any precedents, though scene does this open! Every man, prompted in the House of Lords, the last resort of the by revenge, ill humor, or wantonness, to in- subject. No Acts of Parliament can establish spect the inside of his neighbor’s house, may such a writ; though it should be made in

get a writ of assistance. Others will ask it the very words of the petition, it would be from self-defence; one arbitrary exertion void. An act against the constitution is will provoke another, until society be in- void. (vid. Viner.) But these prove no more

volved in tumult and in blood. than what I before observed, that special Again, these writs are not returned. Writs writs may be granted on oath and probable in their nature are temporary things. When suspicion. The act of 7 & 8 William III. that the purposes for which they are issued are the officers of the plantation shall have the answered, they exist no more; but these live same powers, &c., is confined to this sense; forever; no one can be called to account. that an officer should show probable ground; Thus reason and the constitution are both should take his oath of it; should do this beagainst this writ. Let us see what authority fore a magistrate; and that such magistrate, there is for it. Not more than one instance if he thinks proper, should issue a special can be found of it in all our law-books; and warrant to a constable to search the places. that was in the zenith of arbitrary power, That of 6 Anne can prove no more.

33. THE PROCLAMATION OF 1763 October 7, 1763 (Annual Register, 1763, p. 208 ff.) The immediate background of this famous proc- advice of our Privy Council, to issue this lamation was Pontiac’s Rebellion, and its pro- our Royal Proclamation, hereby to publish visions were designed to be of a temporary char- and declare to all our loving subjects that acter. The reservation of the lands west of the we have, with the advice of our said Privy Appalachians appeared to deprive the Colonics Council, granted our letters patent under our

of their western lands and to put an end to Great Seal of Great Britain, to erect within the widespread private speculation in these lands. See, C. W. Alvord, The Mississippi Valley in the countries and islands ceded and con-

British Politics, 2 Vols.; C. E. Carter, Great Brit- firmed to us by the said treaty, four distinct ain and the Illinois Country; V. Coffin, Quebec and separate governments, styled and called

and the American Revolution, ch. v. by the names of Quebec, East Florida, West Florida, and Grenada, and limited and Whereas we have taken into our royal bounded as follows, viz: consideration the extensive and valuable First, the government of Quebec, bounded acquisitions in America secured to our Crown on the Labrador coast by the river St. John,

by the late definitive treaty of peace con- and from thence by a line drawn from the cluded at Paris the 10th day of February head of that river, through the lake St. John, last; and being desirous that all our loving to the South end of the lake Nipissim; from subjects, as well of our kingdom as of our whence the said line, crossing the river St. colonies in America, may avail themselves, Lawrence and the Lake Champlain in 45 dewith all convenient speed, of the great bene- grees of North latitude, passes along the fits and advantages which must accrue there- High Lands, which divide the rivers that from to their commerce, manufactures, and empty themselves into the said river St. navigation; we have thought fit, with the Lawrence, from those which fall into the

48 DocUMENTS or AMERICAN Hisrory sea; and also along the North coast of the the state and circumstances of the said Bayes des Chaleurs, and the coast of the colonies will admit thereof, they shall, with Gulph of St. Lawrence to Cape Rosieres, and the advice and consent of the members of from thence crossing the mouth of the river our council, summon and call general asSt. Lawrence by the West end of the island semblies within the said governments reof Anticosti, terminates at the aforesaid spectively, in such manner and form as is

river St. John. used and directed in those colonies and prov-

Secondly, The government of East Florida, inces in America, which are under our imbounded to the Westward by the Gulph of mediate government; and we have also given Mexico and the Apalachicola river; to the power to the said governors, with the conNorthward, by a line drawn from that part sent of our said councils, and the representaof the said river where the Catahoochee and tives of the people, so to be summoned as Flint rivers meet, to the source of St. Mary’s aforesaid, to make, constitute, and ordain river, and by the course of the said river to laws, statutes, and ordinances for the public the Atlantic Ocean; and to the East and peace, welfare, and good government of our South by the Atlantic Ocean, and the Gulph _ said colonies, and of the people and inhabitof Florida, including all islands within six ants thereof, as near as may be, agreeable

leagues of the sea coast. to the laws of England, and under such regu-

Thirdly, The government of West Florida, lations and restrictions as are used in other bounded to the Southward by the Gulph of colonies; and in the mean time, and until

Mexico, including all islands within sixleagues such assemblies can be called as aforesaid,

of the coast from the river Apalachicola to all persons inhabiting in, or resorting to, lake Pontchartrain; to the Westward by the our said colonies, may confide in our royal said lake, the lake Maurepas, and the river protection for the enjoyment of the benefit Mississippi; to the Northward, by a line’ of the laws of our realm of England: for drawn due East from that part of the river which purpose we have given power under Mississippi which lies in thirty-one degrees our great seal to the governors of our said North latitude, to the river Apalachicola, colonies respectively, to erect and constitute, or Catahoochee; and to the Eastward by the with the advice of our said councils re-

said river. spectively, courts of judicature and public Fourthly, The government of Grenada, justice within our said colonies, for the

comprehending the island of that name, to- hearing and determining all causes as well gether with the Grenadines, and the islands criminal as civil, according to law and equity, of Dominico, St. Vincent, and Tobago. and as near as may be, agreeable to the laws And to the end that the open and free of England, with liberty to all persons who fishery of our subjects may be extended to, may think themselves aggrieved by the and carried on upon the coast of Labrador sentence of such courts, in all civil cases, and the adjacent islands, we have thought to appeal, under the usual limitations and fit... to put all that coast, from the river restrictions, to us, in our privy council. St. John’s to Hudson’s Streights, together And whereas it is just and reasonable, and with the islands of Anticosti and Madelane, — essential to our interest and the security of and all other smaller islands lying upon the our colonies, that the several nations or said coast, under the care and inspection of tribes of Indians with whom we are con-

our governor of Newfoundland. nected, and who live under our protection,

We have also... thought fit to annex should not be molested or disturbed in the

the islands of St. John and Cape Breton, or possession of such parts of our dominions Isle Royale, with the lesser islands adjacent and territories as, not having been ceded to thereto, to our government of Nova Scotia. or purchased by us, are reserved to them, or We have also ... annexed to our prov- any of them, as their hunting-grounds; we ince of Georgia, all the lands lying between do therefore, with the advice of our Privy

the rivers Atamaha and St. Mary’s. Council, declare it to be our royal will and And ...we have... given express. pleasure, that no Governor or commander power and direction to our governors of our in chief, in any of our colonies of Quebec, said colonies respectively, that so soon as Fast Florida, or West Florida, do presume,

THE PROCLAMATION OF 1763 49 upon any pretence whatever, to grant war- private person do presume to make any purrants of survey, or pass any patents for lands chase from the said Indians of any lands beyond the bounds of their respective gov- reserved to the said Indians within those ernments, as described in their commissions; parts of our colonies where we have thought

as also that no Governor or commander in proper to allow settlement; but that if at chief of our other colonies or plantations in any time any of the said Indians should be

America do presume for the present, and inclined to dispose of the said lands, the until our further pleasure be known, to same shall be purchased only for us, in our grant warrants of survey or pass patents for name, at some public meeting or assembly any lands beyond the heads or sources of of the said Indians, to be held for that purany of the rivers which fall into the Atlantic pose by the Governor or commander in chief Ocean from the west or northwest; or upon of our colony respectively within which they any lands whatever, which, not having been — shall lie: and in case they shall lie within

ceded to or purchased by us, as afore- the limits of any proprietary government, said, are reserved to the said Indians, or any they shall be purchased only for the use

of them. and in the name of such proprietaries, con-

And we do further declare it to be our formable to such directions and instructions royal will and pleasure, for the present as as we or they shall think proper to give for aforesaid, to reserve under our sovereignty, that purpose. And we do, by the advice of protection, and dominion, for the use of the our Privy Council, declare and enjoin, that said Indians, all the land and territories not the trade with the said Indians shall be free included within the limits of our said three and open to all our subjects whatever, pronew governments, or within the limits of vided that every person who may incline the territory granted to the Hudson’s Bay _ to trade with the said Indians do take out a Company; as also all the land and territories license for carrying on such trade, from the lying to the westward of the sources of the Governor or commander in chief of any of rivers which fall into the sea from the west our colonies respectively where such person and northwest as aforesaid; and we do _ shall reside, and also give security to observe hereby strictly forbid, on pain of our dis- such regulations as we shall at any time pleasure, all our loving subjects from making think fit, by ourselves or commissaries to be any purchases or settlements whatever, or appointed for this purpose, to direct and aptaking possession of any of the lands above point for the benefit of the said trade. And

reserved, without our special leave and _ we do hereby authorize, enjoin, and require license for that purpose first obtained. the Governors and commanders in chief of And we do further strictly enjoin and re- all our colonies respectively, as well those quire all persons whatever, who have either under our immediate government as those wilfully or inadvertently seated themselves under the government and direction of proupon any lands within the countries above prietaries, to grant such licenses without fee

described, or upon any other lands which, or reward, taking especial care to insert not having been ceded to or purchased by therein a condition that such license shall us, are still reserved to the said Indians as be void, and the security forfeited, in case aforesaid, forthwith to remove themselves the person to whom the same is granted shall

from such settlements. refuse or neglect to observe such regulations

And whereas great frauds and abuses have as we shall think proper to prescribe as been committed in the purchasing lands of aforesaid. the Indians, to the great prejudice of our And we do further expressly enjoin and reinterests, and to the great dissatisfaction of quire all officers whatever, as well military

the said Indians; in order, therefore, to as those employed in the management and prevent such irregularities for the future, direction of Indian affairs within the terriand to the end that the Indians may be con- tories reserved as aforesaid, for the use of vinced of our justice and determined resolu- the said Indians, to seize and apprehend all . tion to remove all reasonable cause of dis- persons whatever who, standing charged with content, we do, with the advice of our Privy treasons, misprisions of treason, murders, or Council, strictly enjoin and require, that no other felonies or misdemeanors, shall fly

50 DOCUMENTS OF AMERICAN History from justice and take refuge in the said in order to take their trial for the same. territory, and to send them under a proper Given at our Court at St. James’s, the 7th guard to the colony where the crime was day of October 1763, in the third year of our committed of which they shall stand accused, reign.

34. FRONTIER GRIEVANCES A Remonstrance of the distressed and bleeding Frontier Inhabitants of the Province of Pennsylvania February 13, 1764 (Minutes of the Provincial Council of Pennsylvania, Vol. IX, p. 138 ff.)

on ; é y 0

The various manifestations of sectionalism on the five counties are restrained from clecting eve of the Revolution are nowhere better illus- more than ten Representatives, viz: four for trated than in this remonstrance from the inhab- Lancaster, two for York, two for Cumberitants of the frontier counties of Pennsylvania. land, one for Berks, and one for NorthampThe immediate background of the remonstrance ton: while the three Counties and Cit ¢ was Pontiac’s Rebellion and the raid of the so- Philadelphi Ch called Paxton Boys on the civilized Conestogo Hadeipnia, hester, and Bucks, elect Indians. See Franklin’s “Narrative of the Massa- 1 Wenty-Six. This we humbly conceive is cres”, Works, ed. by J. Bigelow, Vol. III, p. Oppressive, unequal, and unjust, the cause of 260 ff. On sectionalism in Pennsylvania see W. R. many of our Grievances, and an infringement Shepherd, Proprietary Government in Pennsyl- of our Natural privileges of Freedom & vania; C. R. Lincoln, The Revolutionary Move- Equality; wherefore we humbly pray that ment in Pennsylvania; F. J. Turner, The Fron- we may be no longer deprived of an equal tier in American History, ch. ili; G. A. Cribbs, number with the three aforesaid Counties,

Frontier Policy of Pennsylvania. to represent us in Assembly.

To the Honourable John Penn, Esquire, Secondly. We understand that a Bill is now Governor of the Province of Pennsyl- before the House of Assembly, wherein it is vania, & of the Counties of New Castle, Provided that such Persons as shall be Kent, and Sussex, on Delaware, and to charged with killing any Indians in Lancaster

the Representatives of the Freemen of County, shall not be tried in the County the said Province, in General Assembly Where the Fact was committed, but in the

met: Counties of Philadelphia, Chester, or Bucks. This is manifestly to deprive British Subjects

We Matthew Smith and James Gibson, in of their known Privileges, to cast an eternal behalf of ourselves and His Majesty’s faith- Reproach upon whole Counties, as if they

ful and loyal Subjects, the Inhabitants of were unfit to serve their Country in the the Frontier Counties of Lancaster, York, quality of Jurymen, and to contradict the Cumberland, Berks, and Northampton, hum- well-known Laws of the British Nation in a

bly beg leave to remonstrate and to lay be- point whereon Life, Liberty, and security fore you the following Grievances, which we essentially depend, namely, that of being

submit to your Wisdom for Redress. tried by their equals in the neighborhood First. We apprehend that as Freemen and where their own, their Accusers’, and the English Subjects, we have an indisputable Witnesses’ Character and Credit, with the Title to the same Privileges & immunities Circumstances of the Fact, are best known, with His Majesty’s other Subjects who re- & instead thereof putting their Lives in the side in. the interior Counties of Philadelphia, hands of Strangers who may as justly be Chester, and Bucks, and therefore ought not suspected of partiallity to, as the Frontier to be excluded from an equal share with Counties can be of prejudices against Indi-

. them in the very important Privilege of ans; and this, too, in favour of Indians only, Legislation; nevertheless, contrary to the against His Mayjesty’s faithful & loyal sub-

Proprietors Charter and the acknowledged jects. ... principles of common Justice & Equity, our Thirdly. During the late and_ present

FRONTIER GRIEVANCES 51 Indian War, the Frontiers of this Province them? Why did they not leave their Tribe have been repeatedly attacked and ravaged immediately, and come amongst us before by Skulking parties of the Indians, who have there was Ground to suspect them, or War with the most Savage Cruelty murdered was actually waged with their Tribe? No, Men, Women, and Children without distinc- they stayed amongst them, were privy to tion, and have reduced near a thousand their murders & Ravages, until we had de-

Families to the most extream distress. It stroyed their Provisions; and when they

grieves us to the very heart to see such.of could no longer subsist at home, they come our Frontier Inhabitants as have escaped not as Deserters, but as Friends to be mainSavage Fury with the loss of their parents, tained through the Winter, that they may their Children, their Wives or Relatives, left be able to Scalp and butcher us in the Spring.

destitute by the public, and exposed to the And as to the Moravian Indians, there are most cruel Poverty and Wretchedness while strong Grounds at least to suspect their upwards of an Hundred and twenty of these Friendship, as it is known they carried on a Savages, who are with great reason suspected Correspondence with our Enemies on the of being guilty of these horrid Barbarities Great Island. We killed three Indians gounder the Mask of Friendship, have pro- ing from Bethlehem to the Great Island cured themselves to be taken under the pro- with Blankets, Ammunition, & Provisions, tection of the Government, with a view to which is an undeniable Proof that the Moelude the Fury of the brave Relatives of ravian Indians were in confederacy with our the murdered, and are now maintained at open Enemies; And we cannot but be filled the public Expence. Some of these Indians with Indignation to hear this action of ours now in the Barracks of Philadelphia, are painted in the most odious and detestable confessedly a part of the Wyalusing Indians, Colours, as if we had inhumanly murdered which Tribe is now at war with us, and the our Guides who preserved us from perishing others are the Moravian Indians, who, liv- in the Woods, when we only killed three of ing amongst us under the Cloak of Friend- our known Enemies, who attempted to shoot ship, carried on a Correspondence with our us when we surprized them. And _ besides

known Enemies on the Great Island. We all this, we understand that one of these cannot but observe with sorrow & indignation very Indians is proved by the oath of Stin-

that some Persons in this Province are at ton’s Widow, to be the very Person that pains to extenuate the barbarous Cruelties murdered her Husband. How then comes it practised by these Savages on our murdered to pass that he alone, of all the Moravian Brethren & Relatives, which are shocking to Indians, should join with the enemy to human Nature, and must pierce every Heart murder that family? Or can it be supposed

but that of the hardened perpetrators or that any Enemy Indians, contrary to their their Abettors; Nor is it less distressing to known custom of making War, should penehear others pleading that although the Wya- trate into the Heart of a settled Country to lusing Tribe is at War with us, yet that part burn, plunder and murder the Inhabitants, of it which is under the Protection of the and not molest any Houses in their return, Government may be friendly to the English or ever be seen or heard of? Or how can we and innocent. In what nation under the Sun account for it, that no ravages have been was it ever the custom that when a neighbor- committed in Northampton County, since ing Nation took up Arms, not an individual the removal of the Moravian Indians, when should be touched but only the Persons the Great Cove has been struck since? These that offered MHostilitiesP Who ever pro-_ things put it beyond doubt with us that the claimed War with a part of a Nation, and Indians now at Philadelphia are His Majesnot with the Whole? Had these Indians dis- _ty’s Perfidious Enemies, & therefore to pro-

approved of the Perfidy of their Tribe, & tect and maintain them at the Public Ex-

been willing to cultivate and preserve Friend- pence, while our suffering Brethren on the ship with us, why did they not give notice Frontiers are almost destitute of the neces-

of the War before it happened, as it is saries of Life and are neglected by the

known to be the Result of long Deliberations, Public, is sufficient to make us mad with and a preconcerted Combination amongst rage, and tempt us to do what nothing but

52 DOCUMENTS OF AMERICAN History the most violent necessity can vindicate. tempting to make their escape from BondWe humbly and earnestly pray, therefore, age; We see they pay no regard to the that those Enemies of His Majesty may be many solemn Promises which they have removed as soon as possible out of the made to restore our Friends who are in

Province. Bondage amongst them. We _ therefore Fourthly. We humbly conceive that it is earnestly pray that no trade may hereafter

contrary to the maxims of good Policy, and be permitted to be carried on with them, until extreamely dangerous to our Frontiers, to our Brethren and Relatives are brought home suffer any Indians of what tribe soever to live to us.

within the Inhabited parts of this Province Eightly. We complain that a certain Sowhile we are engaged in an Indian War, as_ ciety of People in this Province, in the Experience has taught us that they are all late Indian War, & at several Treaties held perfidious, and their claim to Freedom & by the King’s representatives, openly loaded Independency, puts it in their power to act the Indians with Presents, and that J. P., a as Spies, to entertain & give intelligence leader of the said Society, in Defiance of to our Enemies, and to furnish them with all Government, not only abetted our Indian Provisions and Warlike Stores. To this fatal Enemies, but kept up a private intelligence intercourse between our pretended Friends with them, and publickly received from them and open Enemies, we must ascribe the great- a Belt of Wampum, as if he had been our

est of the Ravages and Murders that have Governor or authorized by the King to been committed in the course of this and the treat with his Enemies. By this means the

last Indian War. We therefore pray that Indians have been taught to despise us as this grievance be taken under consideration a weak and disunited people, and from this

and remedied. fatal Source have arose many of our CalamiFifthly. We cannot help lamenting that no ties under which we groan. We humbly pray

Provision has been hitherto made, that such therefore that this Grievance may be reof our Frontier Inhabitants as have been dressed, and that no private subject be herewounded in defence of the Province, their after permitted to treat with, or carry on a Lives and Liberties, may be taken care of Correspondence with our Enemies. and cured of their Wounds at the publick Ninthly. We cannot but observe with sorExpence. We therefore pray that this Griev- row that Fort Augusta, which has been very

ance may be redressed. expensive to this Province, has afforded us

Sixthly. In the late Indian war this Prov- but little assistance during this or the last ince, with others of His Mayjesty’s Colonies, War. The men that were stationed at that gave rewards for Indian Scalps, to encourage place neither helped our distressed Inhabitthe seeking them in their own Country, as ants to save their Crops, nor did they attack the most likely means of destroying or re- our Enemies in their Towns, or patrole on

ducing them to reason; but no such En- our Frontiers. We humbly request that

couragement has been given in this War, proper measures may be taken to make that which has damped the Spirits of many brave Garrison more serviceable to us in our DisMen who are willing to venture their Lives _ tress, if it can be done.

in parties against the Enemy. We therefore N.B. We are far from intending any Repray that public rewards may be proposed flection against the Commanding Officer stafor Indian Scalps, which may be adequate tioned at Augusta, as we presume his Conto the Dangers attending Enterprizes of this duct was always directed by those from whom

nature. he received his Orders. Seventhly. We daily lament that numbers SIGNED on Behalf of ourselves, and by of our nearest & dearest relatives are still appointment of a great number of the Fronin Captivity among the Savage Heathen, to tier Inhabitants.

be trained up in all their Ignorance & Bar- MATTHEW SMITH. barity, or to be tortured to death with all JAMES GIBSON. the contrivances of Indian Cruelty, for at- February 13th, 1764.

THe STAMP ACT 53 35. THE STAMP ACT March 22, 1765 (D. Pickering, Statutes at Large, Vol. XXVI, p. 179 ff.) The reorganization of the Empire inaugurated For every skin or piece of vellum or parchin 1763 required the raising of additional revenue ment, or sheet or piece of paper, on which in the American Colonies, and as early as 1764 — shall be ingrossed, written or printed, any Grenville announced his intention of introducing declaration, plea, replication, rejoinder, dea stamp tax. The colonial agents were given the murrer, or other pleading, or any copy

opportunity to suggest alternative means of rais- . wae ing revenue, but though all of them protested thereof, in any court of jaw within the

against the stamp tax they were unable to suggest British colonies and plantations in America, any effective alternative. The Stamp Act passed 4 stamp duty of three pence.

Parliament with little opposition or attention; For every skin . . . on which shall be in-

the debate on the bill was “languid.” The meas- grossed .. . any donation, presentation, colure was designed to raise an additional £60,000, lation, or institution of or to any benefice,

and the ministry optimistically hoped that it or any writ or instrument for the like purwould arouse little opposition in the vores. pose, or any register, entry, testimonial, or For th Amarin reaction fo te Stamp AGL ® centifcate of any degree taken in any un ham, Rise of the Republic, ch. v; G. Bancroft, versity, academy, college, or seminary of

History of the United States, author’s last re- learning ...a stamp duty of two vision, Vol. III, chs. v—viii; C. H. Van Tyne, pounds. .. . Causes of the War of Independence, ch. vi. For every skin . . . on which shall be in-

grossed... any note or bill of lading,

An act for granting and applying certain which shall be signed for any kind of goods, stamp duties, and other duties, in the wares, or merchandize, to be exported from,

British colonies and plantations im or any cocket or clearance granted within

America, towards further defraying the ex- the said colonies and plantations, a stamp pences of defending, protecting, and secur- duty of four pence... . ing the same; and for amending such parts For every skin . . . on which shall be in-

of the several acts of parliament relating grossed... any grant, appointment, or adto the trade and revenues of the said mission of or to any publick beneficial ofcolonies and plantations, as direct the man- fice or employment, for the space of one ner of determining and recovering the year, or any lesser time, of or above the penalties and forfeitures therein men- value of twenty pounds per annum sterling

tioned. money, in salary, fees, and perquisites ... ,

WHEREAS by an act made in the last (except commissions and appointments of ofsession of parliament, several duties were ficers of the army, navy, ordnance, or militia,

granted, continued, and appropriated, of judges, and of justices of the peace) a towards defraying the expences of defend- stamp duty of ten shillings. . . .

ing, protecting, and securing, the British For every skin . . . on which shall be incolonies and plantations in America: and grossed... any licence for retailing of whereas it is just and necessary, that provi- spirituous liquors, to be granted to any per-

sion be made for raising a further revenue son who shall take out the same..., a within your Majesty’s dominions in America, stamp duty of twenty shillings. . . .

towards defraying the said expences: ... For every skin . . . on which shall be inbe it enacted ..., That from and after grossed ... any probate of a will, letters of [November 1, 1765,] there shall be raised, administration, or of guardianship for any levied, collected, and paid unto his Majesty, estate above the value of twenty pounds ster-

his heirs, and successors, throughout the ling money; within the British colonies and colonies and plantations in America which plantations upon the continent of America, now are, or hereafter may be, under the’ the islands belonging thereto, and the Berdominion of his Majesty, his heirs and suc- muda and Bahama islands, a stamp duty of

cessors, five shillings. ...

54 DOCUMENTS OF AMERICAN HIstorRy For every skin . . . on which shall be in- herein before charged . . . , 4 stamp duty grossed . . . any bond for securing the pay- of two shillings and three pence. ... ment of any sum of money, not exceeding And for and upon every pack of playing the sum of ten pounds sterling money, within cards, and all dice, which shall be sold or the British colonies and plantations upon the used... , the several stamp duties followcontinent of America, the islands belonging ing (that is to say) thereto, and the Bermuda and Bahama is- For every pack of such cards, the sum of

lands, a stamp duty of six pence... . one shilling.

For every skin . . . on which shall be in- And for every pair of such dice, the sum grossed .. . any order or warrant for sur- of ten shillings. veying or setting out any quantity of land, And for and upon every paper, commonly not exceeding one hundred acres, issued by called a pamphlet, and upon every news any governor, proprietor, or any publick of- paper... and for and upon such advertiseficer alone, or in conjunction with any other ments as are herein after mentioned, the person or persons, or with any council, or respective duties following (that is to say) any council and assembly, within the British For every such pamphlet and paper concolonies and plantations in America, a stamp tained in half a sheet, or any lesser piece of

duty of six pence... . paper ...,a stamp duty of one _half-

For every skin . . . on which shall be in- penny, for every printed copy thereof. grossed . . . any such original grant ... by For every such pamphlet and paper (being which any quantity of land not exceeding one larger than half a sheet, and not exceeding hundred acres shall be granted ... within one whole sheet) . . . , a stamp duty of one all other parts of the British dominions in penny, for every printed copy thereof. America, a stamp duty of three shillings. For every pamphlet and paper being larger [Further provision for larger grants. ] than one whole sheet, and not exceeding six For every skin . . . on which shall be in- — sheets in octavo, or in a lesser page, or not grossed . . . any grant, appointment, or ad- exceeding twelve sheets in quarto, or twenty mission, of or to any publick beneficial office sheets in folio... , a duty after the rate or employment, not herein before charged, of one shilling for every sheet of any kind above the value of twenty pounds per an- of paper which shall be contained in one num sterling money in salary, fees, and per- printed copy thereof. quisites, or any exemplification of the same, For every advertisement to be contained in within the British colonies and plantations any gazette, news paper, or other paper, or

upon the continent of America, the islands any pamphlet ...,a duty of two shillbelonging thereto, and the Bermuda and ings. Bahama islands (except commissions of of- For every almanack or calendar, for any ficers of the army, navy, ordnance, or militia, one particular year, or for any time less than

and of justices of the peace) a stamp duty a year, which shall be written or printed on

of four pounds. .. . one side only of any one sheet, skin, or piece of

For every skin . . . on which shall be in- paper parchment, or vellum ... , a stamp grossed .. . any indenture, lease, convey- duty of two pence. ance, contract, stipulation, bill of sale, char- For every other almanack or calendar for ter party, protest, articles of apprenticeship, any one particular year . . . , a stamp duty or covenant (except for the hire of servants of four pence. not apprentices, and also except such other And for every almanack or calendar writmatters as are herein before charged) within ten or printed ..., to serve for several the British colonies and plantations in years, duties to the same amount respectively America, a stamp duty of two shillings and shall be paid for every such year.

six pence... . For every skin . . . on which any instruFor every skin . . . on which shall be in- ment, proceeding, or other matter or thing

grossed ... any notarial act, bond, deed, aforesaid, shall be ingrossed ... , in any letter of attorney, procuration, mortgage, re- other than the English language, a stamp lease, or other obligatory instrument, not duty of double the amount of the respec-

VIRGINIA STAMP AcT RESOLUTIONS 55 tive duties before charged thereon. ... be marked or stamped, in pursuance of this II. And also a duty of one shilling for act, with the respective duty hereby charged every twenty shillings, in any sum exceed- thereon, or with an higher duty... .

ing fifty pounds, which shall be given, paid, LIV. And be it further enacted... , contracted, or agreed, for, with, or in rela- That all the monies which shall arise by the tion to any such clerk or apprentice. .. . several rates and duties hereby granted (exV. And be it further enacted ..., That cept the necessary charges of raising, colall books and pamphlets serving chiefly for lecting, recovering, answering, paying, and the purpose of an almanack, by whatsoever accounting for the same and the necessary name or names intituled or described, are charges from time to time incurred in relaand shall be charged with the duty imposed tion to this act, and the execution thereof) by this act on almanacks, but not with any _ shall be paid into the receipt of his Majesty’s of the duties charged by this act on pam- exchequer, and shall be entered separate and

phlets, or other printed papers .. . apart from all other monies, and shall be

VI. Provided always, that this act shall there reserved to be from time to time disnot extend to charge any bills of exchange, posed of by parliament, towards further deaccompts, bills of parcels, bills of fees, or fraying the necessary expences of defending, any bills or notes not sealed for payment of protecting, and securing, the said colonies

money at sight, or upon demand, or at the and plantations... .

end of certain days of payment... . LVII. ... offences committed against

XII. And be it further enacted ...,That any other act or acts of Parliament relating the said several duties shall be under the to the trade or revenues of the said colonies management of the commissioners, for the or plantations; shall and may be prosecuted, time being, of the duties charged on stamped sued for, and recovered, in any court of vellum, parchment, and paper, in Great Brit- record, or in any court of admiralty, in the ain: and the said commissioners are hereby respective colony or plantation where the impowered and required to employ such of- offence shall be committed, or in any court ficers under them, for that purpose, as they of vice admiralty appointed or to be ap-

shall think proper... . pointed, and which shall have jurisdiction XVI. And be it further enacted..., within such colony, plantation, or place,

That no matter or thing whatsoever, by this (which courts of admiralty or vice admiralty

act charged with the payment of a duty, are hereby respectively authorized and reshall be pleaded or given in evidence, or ad- quired to proceed, hear, and determine the mitted in any court within the said colonies same) at the election of the informer or and plantations, to be good, useful, or avail- prosecutor... .. able in law or equity, unless the same shall

36. VIRGINIA STAMP ACT RESOLUTIONS May 30, 1765 (Journal of the House of Burgesses of Virginia, 1761-65, p. 360) On May 29 the Virginia House of Burgesses re- of resolutions, however, was published in the solved itself into a committee of the whole to newspapers. It is in connection with the debate consider the Stamp Act. Patrick Henry, a new on these resolutions that Henry made his “Caesar member from Louisa County, introduced seven had his Brutus” speech, the actual context of resolutions ; these were bitterly opposed by many _ which is apparently very different from that gen-

of the tidewater leaders, but, after “torrents of erally given. See, S. E. Morison, Sources and sublime eloquence” from Henry, were passed. Documents Illustrating the American RevoluThe following day, however, the House adopted tion, p. 14 ff.; M. C. Tyler, Patrick Henry, p. the first five only, and rejected the last two. 61 ff.; G. E. Howard, Preliminaries of the RevoAfter Henry’s departure, the House expunged the _lution, ch. viii; R. F rothingham, Rise of the Refifth resolution from the record. The entire series public, ch. v.

56 DOCUMENTS OF AMERICAN History Tire RESOLVES have without interruption enjoyed the inestimable right of being governed by such Resolved, That the first adventurers and laws, respecting their internal polity and taxsettlers of this His Majesty’s Colony and ation, as are derived from their own consent, Dominion of Virginia brought with them, with the approbation of their sovereign, or and transmitted to their posterity, and all his substitute; and that the same hath never other His Majesty’s subjects since inhabiting been forfeited or yielded up, but hath been in this His Majesty’s said Colony, all the constantly recognized by the kings and peoliberties, privileges, franchises, and immuni- ple of Great Britain.

ties, that have at any time been held, en- Resolved therefore, That the General Asjoyed, and possessed, by the people of Great sembly of this Colony have the only and sole

Britain. exclusive right and power to lay taxes and Resolved, That by two royal charters, impositions upon the inhabitants of this

granted by King James the First, the colo- Colony, and that every attempt to vest such nists aforesaid are declared entitled to all power in any person or persons whatsoever

liberties, privileges, and immunities of other than the General Assembly aforesaid denizens and natural subjects, to all intents has a manifest tendency to destroy British as and purposes, as if they had been abiding well as American freedom.

and born within the realm of England. Resolved. That His Majesty’s liege people, Resolved, That the taxation of the people the inhabitants of this Colony, are not by themselves, or by persons chosen by bound to yield obedience to any law or ordithemselves to represent them, who can only nance whatever, designed to impose any taxa-

know what taxes the people are able to tion whatsoever upon them, other than the bear, or the easiest method of raising them, laws or ordinances of the General Assembly and must themselves be affected by every aforesaid. tax laid on the people, is the only security Resolved, That any person who shall, by against a burthensome taxation, and the dis- speaking or writing, assert or maintain that tinguishing characteristick of British free- any person or persons other than:the General dom, without which the ancient constitution Assembly of this Colony, have any right or

cannot exist. power to impose or lay any taxation on the

Resolved, That His Majesty’s liege people people here, shall be deemed an enemy to of this his most ancient and loyal Colony His Majesty’s Colony. |

37. INSTRUCTIONS OF THE TOWN OF BRAINTREE MASSACHUSETTS ON THE STAMP ACT October 14, 1765 (The Works of John Adams, ed. by C. F. Adams, Vol. III, p. 465 ff.) These instructions have a peculiar interest be- ourselves, however, chiefly to the act of cause they were drafted by John Adams, and an- Parliament, commonly called the Stamp Act, nounced his entrance into Massachusetts politics by which a very burthensome, and, in our and into the struggle between the colonies and opinion, unconstitutional tax, is to be laid the mother country. The instructions were widely upon us all; and we subjected to numerous copied throughout Massachusetts. See, G. Chi- and enormous penalties, to be prosecuted,

nard, Honest John Adams, ch. ui. sued for, and recovered, at the option of To Epenezer THAvER, Esq. an informer, in a court of admiralty, without a jury.

Sirn,— ... We can no longer forbear We have called this a burthensome tax, complaining, that many of the measures of because the duties are so numerous and so the late ministry, and some of the late acts high, and the embarrassments to business in of Parliament, have a tendency, in our ap-_ this infant, sparsely-settled country so great,

prehension, to divest us of our most es- that it would be totally impossible for the sential rights and liberties. We shall confine people to subsist under it, if we had no

RESOLUTIONS OF THE STAMP ACT CONGRESS 57 controversy at all about the right and au- ject... . We have all along thought the thority of imposing it. Considering the pres- acts of trade in this respect a grievance; but cht scarcity of money, we have reason to the Stamp Act has opened a vast number of think, the execution of that act for a short sources of new crimes, which may be comspace of time would drain the country of its mitted by any man, and cannot but be comcash, strip multitudes of all their property, mitted by multitudes, and prodigious penaland reduce them to absolute beggary. And ties are annexed, and all these are to be what the consequence would be to the peace tried by such a judge of such a court! ... of the province, from so sudden a shock and We cannot help asserting, therefore, that such a convulsive change in the whole course this part of the act will make an essential of our business and subsistence, we tremble change in the constitution of juries, and it is to consider. We further apprehend this tax directly repugnant to the Great Charter itto be unconstitutional. We have always un- self; for, by that charter, “no americament derstood it to be a grand and fundamental — shall be assessed, but by the oath of honest principle of the constitution, that no free- and lawful men of the vicinage;” and, “no man should be subject to any tax to which freeman shall be taken, or imprisoned, or dishe has not given his own consent, in person seized of his freehold, or liberties of free or by proxy. And the maxims of the law, customs, nor passed upon, nor condemned, as we have constantly received them, are to but by lawful judgment of his peers, or by

the same effect, that no freeman can be the law of the land.” So that this act will separated from his property but by his own “make such a distinction, and create such a act or fault. We take it clearly, therefore, difference between” the subjects in Great

tc be inconsistent with the spirit of the Britain and those in America, as we could common law, and of the essential funda- not have expected from the guardians of mental principles of the British constitution, liberty in “both”.

that we should be subject to any tax Im- As these, sir, are our sentiments of this

posed by the British Parliament; because act, we, the freeholders and other inhabitants, we are not represented in that assembly legally assembled for this purpose, must enin any sense, unless it be by a fiction of law, join it upon you, to comply with no measures as insensible in theory as it would be in- or proposals for countenancing the same, or jurious in practice, if such a taxation should assisting in the execution of it, but by all

be grounded on it. lawful means, consistent with our allegiance

But the most grievous innovation of all, to the King, and relation to Great Britain, is the alarming extension of the power of to oppose the execution of it, till we can courts of admiralty. In these courts, one hear the success of the cries and petitions of judge presides alone! No juries have any America for relief. concern there! The law and the fact are We further recommend the most clear and both to be decided by the same single judge, explicit assertion and vindication of our whose commission is only during pleasure, rights and liberties to be entered on the and with whom, as we are told, the most public records, that the world may know, in mischievous of all customs has become es- the present and all future generations, that tablished, that of taking commissions on all we have a clear knowledge and a just sense

condemnations; so that he is under a pe- of them, and, with submission to Divine cuniary temptation always against the sub- Providence, that we never can be slaves. . . .

38. RESOLUTIONS OF THE STAMP ACT CONGRESS October 19, 1765 (Journal of the First Congress of the American Colonies in opposition to the Tyrannical Acts of the British Parliament, p. 27 ff.) On the motion of James Otis, the Massachusetts of representatives in New York City in October House of Representatives adopted, June 8,acir- “to consult together on the present circumstances cular letter to the other colonies recommending of the colonies”. The Congress met at City Hall, a meeting of committees from the various houses New York, October 7. Twenty-eight delegates

58 DOCUMENTS OF AMERICAN History from nine colonies were present: Virginia, New spirit of the British Constitution, for the Hampshire, North Carolina and Georgia did not people of Great Britain to grant to His send delegates. The Congress drew up Resolu- Majesty the property of the colonists. tions, an address to the King, a memorial to the VII. That trial by jury is the inherent and Lords and a petition were to the House of Commons. The Resolutions probably drafted invaluable by John .right of every British subject in

Dickinson, though there is some support to the these colonies. .

claim that they are from the pen of John Cruger VIII. That the late Act of P arliament, of New York. For references see Doc. No. 35. entitled An Act for granting and applying certain stamp duties, and other duties, in the THE members of this Congress, sincerely British colonies and plantations in America, devoted with the warmest sentiments of af- etc., by imposing taxes on the inhabitants of fection and duty to His Majesty’s person these colonies; and the said Act, and several and Government, inviolably attached to the other Acts, by extending the jurisdiction of present happy establishment of the Protes- the courts of Admiralty beyond its ancient tant succession, and with minds deeply im- limits, have a manifest tendency to subvert

pressed by a sense of the present and im- the rights and liberties of the colonists. pending misfortunes of the British colonies IX. That the duties imposed by several on this continent; having considered as late Acts of Parliament, from the peculiar maturely as time will permit the circum- circumstances of these colonies, will be exstances of the said colonies, esteem it our tremely burthensome and grievous; and from indispensable duty to make the following the scarcity of specie, the payment of them declarations of our humble opinion respect- absolutely impracticable.

ing the most essential rights and liberties of X. That as the profits of the trade of the colonists, and of the grievances under these colonies ultimately center in Great which they labour, by reason of several late Britain, to pay for the manufactures which

Acts of Parliament. they are obliged to take from thence, they

I. That His Majesty’s subjects in these eventually contribute very largely to all supcolonies owe the same allegiance to the plies granted there to the Crown. Crown of Great Britain that is owing from XI. That the restrictions imposed by his subjects born within the realm, and all several late Acts of Parliament on the trade due subordination to that august body the of these colonies will render them unable to

Parliament of Great Britain. purchase the manufactures of Great Britain.

II. That His Majesty’s liege subjects in XII. That the increase, prosperity, and these colonies are intitled to all the inherent happiness of these colonies depend on the rights and liberties of his natural born sub- full and free enjoyments of their rights and

jects within the kingdom of Great Britain. liberties, and an intercourse with Great III. That it is inseparably essential to Britain mutually affectionate and advantathe freedom of a people, and the undoubted _ geous.

right of Englishmen, that no taxes be im- XIII. That it is the right of the British posed on them but with their own consent, subjects in these colonies to petition the given personally or by their representatives. King or either House of Parliament.

IV. That the people of these colonies are Lastly, That it is the indispensable duty not, and from their local circumstances can- of these colonies to the best of sovereigns, to

not be, represented in the House of Com- the mother country, and to themselves, to

mons in Great Britain. endeavour by a loyal and dutiful address V. That the only representatives of the to His Majesty, and humble applications to people of these colonies are persons chosen both Houses of Parliament, to procure the therein by themselves, and that no taxes ever repeal of the Act for granting and applying have been, or can be constitutionally imposed certain stamp duties, of all clauses of any on them, but by their respective legislatures. other Acts of Parliament, whereby the VI. That all supplies to the Crown being jurisdiction of the Admiralty is extended as free gifts of the people, it is unreasonable aforesaid, and of the other late Acts for the and inconsistent with the principles and restriction of American commerce.

PETITION OF LONDON MERCHANTS 59 39, NORTHAMPTON COUNTY RESOLUTIONS ON THE STAMP ACT February 11, 1766 (A. C. McLaughlin, Foundations of American Constitutionalism, p. 126 n.) This declaration of the county court of North- on the inhabitants of this colony, and ampton County, Virginia, is given as an example whether they the said Officers should incur

of the local reaction to the Stamp Act; it was any penalties by not using stamped paper, one of the earliest declarations to the effect that agreeable to the directions of the said act,

an unconstitutional act was not binding. the Court unanimously declared it to be Williamsburg, March 21. The following is their opinion that the said act did not bind, a copy of a late order of Northampton Court, affect or concern the inhabitants of this on the eastern Shore of this colony, which colony, in as much as they conceive the we are desired to insert. At a court held same to be unconstitutional, and that the for Northampton county, Feb. 11, 1766. said several officers may proceed to the “On the motion of the Clerk and other execution of their respective offices without Officers of this Court, praying their opinion incurring any penalties by means thereof; whether the act entitled ‘An Act for grant- which opinion this court doth order to be ing and applying certain Stamp Duties, and recorded. Griffin Stith, C.N.C.” other Duties, in America, &c,’ was binding Virginia Gazette, March 21, 1766.

40. PETITION OF LONDON MERCHANTS AGAINST THE STAMP ACT January 17, 1766 (The Parliamentary History of England, Vol. XVI, p. 133 ff.) The American policy of non-importation had se- which, many thousand manufacturers, seaverely injured English trade, and Parliament re- men and labourers, have been employed, to ceived numerous petitions from merchants the very great and increasing bencfit of this throughout the Kingdom urging the repeal of the nation; and that, in return for these exports, act. See, WwW. q. Laprade, The Stamp Act IN the petitioners have received from the coloXXXV, p. 735 ff.; C. H. Van Tyne, Causes of nies, rice, indigo, tobacco, naval stores, oil, the War of Independence, ch. vii; D. M. Clark, whale fins, furs, and lately potash, with other British Opinion and the American Revolution, commodities, besides remittances by bills of

British Politics’, American Hist. Review, Vol. . . «oye .

ch. ik exchange and bullion, obtained by the colonists in payment for articles of their produce,

A petition of the merchants of London, not required for the British market, and trading to North America, was presented to therefore exported to other places; and that,

the House, and read; setting forth; from the nature of this trade, consisting of “That the petitioners have been long con-_ British manufactures exported, and of the cerned in carrying on the trade between import of raw materials from America, many this country and the British colonies on the of them used in our manufactures, and all continent of North America; and that they of them tending to lessen our dependence on have annually exported very large quantities neighbouring states, it must be deemed of the of British manufactures, consisting of wool- highest importance in the commercial syslen goods of all kinds, cottons, linens, hard- tem of this nation; and that this commerce, ware, shoes, household furniture, and almost so beneficial to the state, and so necessary without exception of every other species of for the support of multitudes, now lies under goods manufactured in these kingdoms, be- such difficulties and discouragement, that

sides other articles imported from abroad, nothing less than its utter ruin is apprechiefly purchased with our manufactures and hended, without the immediate interposition

with the produce of our colonies; by all of parliament; and that, in consequence of

60 DOCUMENTS OF AMERICAN HISTORY the trade between the colonies and the mother to have been extended in such a manner as _ country, as established and as permitted for to disturb legal commerce and harass the fair many years, and of the experience which _ trader, have so far interrupted the usual and the petitioners have had of the readiness of former most fruitful branches of their comthe Americans to make their just remittances merce, restrained the sale of their produce, to the utmost of their real ability, they have thrown the state of the several provinces into been induced to make and venture such large confusion, and brought on so great a number

exportations of British manufactures, as to of actual bankruptcies, that the former opleave the colonies indebted to the merchants portunities and means of remittances and of Great Britain in the sum of several mil- payments are utterly lost and taken from lions sterling; and that at this time the them; and that the petitioners are, by these colonists, when pressed for payment, appeal unhappy events, reduced to the necessity of to past experience, in proof of their willing- applying to the House, in order to secure ness; but declare it is not in their power, at themselves and their families from impendpresent, to make good their engagements, ing ruin; to prevent a multitude cf manualleging, that the taxes and restrictions laid facturers from becoming a burthen to the upon them, and the extension of the jurisdic- community, or else seeking their bread in tion of vice admiralty courts established by other countries, to the irretrievable loss of some late acts of parliament, particularly by this kingdom; and to preserve the strength an act passed in the fourth year of his pres- of this nation entire, its commerce flourishent Majesty, for granting certain duties in ing, the revenues increasing, our navigation,

the British colonies and plantations in the bulwark of the kingdom, in a state of America, and by an act passed in the fifth growth and extension, and the colonies, from

year of his present Majesty, for granting inclination, duty, and interest, firmly atand applying certain stamp duties, and other tached to the mother country; and therefore duties, in the British colonies and planta- praying the consideration of the premises, tions in America, with several regulations and and entreating such relief, as to the House restraints, which, if founded in acts of parlia- shall seem expedient... .” ment for defined purposes, are represented

41. THE DECLARATORY ACT March 18, 1766 (D. Pickering, Statutes at Large, Vol. X XVII, p. 19-20.) The obvious inability of royal officials in the Amn act for the better securing the dependency

colonies to enforce the Stamp Act, together with of his Majesty’s dominions in America the injury to English trade resulting from the upon the crown and parliament of Great

non-importation agreements, persuaded the Britain. Rockingham ministry of the expediency of a re-

eal of the Act. The famous examination of Franklin before the House confirmed members WHEREAS sever al of the houses of reprein their opinion that repeal was necessary. Re- sentatives in his M ajesty’s colonies and peal encountered firm opposition in the Lords, plantations in America, have of late, against however, and was carried only by pressure from /aw, claimed to themselves, or to the general the King, and with the salve of the Declaratory assemblies of the same, the sole and exclusive Act. The Declaratory Act was couched in the right of imposing duties and taxes upon his same terms as the odious Irish Declaratory Act Mayjesty’s subjects in the said colonies and of 1719. For references see Docs. No. 35, 36. plantations; and have, in pursuance of such Franklin’s examination is in his Works, ed. by Cjgim “hassed certain votes, resolutions, and J. Sparks, Vol. IV. For an analysis of the po- orders, derogatory to the legislative authority litical theory behind the Declaratory Act see two eo / opposing interpretations: C. H. Mc Ilwain, The of parliament, and inconsistent with the deAmerican Revolution; a Constitutional Interpre- pendency of the said colonies and plantations tation; R. L. Schuyler, Parliament and the Brit- upon the crown of Great Britain: . . . be it

ish Empire. declared ..., That the said colonies and

QUARTERING ACT 61 plantations in America have been, are, and subjects of the crown of Great Britain, in of right ought to be, subordinate unto, and all cases whatsoever. dependent upon the imperial crown and par- II. And be it further declared ... , That liament of Great Britain; and that the King’s all resolutions, votes, orders, and proceedmajesty, by and with the advice and consent ings, in any of the said colonies or plantaof the lords spiritual and temporal, and tions, whereby the power and authority of commons of Great Britain, in parliament as- the parliament of Great Britain, to make sembled, had, hath, and of right ought to laws and statutes as aforesaid, is denied, or have, full power and authority to make laws drawn into question, are, and are hereby and statutes of sufficient force and validity declared to be, utterly null and void to all to bind the colonies and people of America, intents and purposes whatsoever. 42. QUARTERING ACT

, March 24, 1765

(D. Pickering, Statutes at Large, Vol. XXVI, p. 305 ff.) This Act, passed at the express request of Gen- quarters for such forces: and whereas tt ts era) Gage, was designed to supplement the Stamp expedient and necessary that carriages and Act and the Revenue Act of 1764. The failure of other conveniences, upon the march of troops

New York to comply in full with the terms of 3, pis Majesty’s dominions in America, the Quartering Act led to the suspension of the should be supplied for that purpose: be it Channing, History of the United States, Vol. enacted a , That for and during the con IIT, p. 44ff.; C. Becker, Political Parties in the tinuance of this act, and no longer, it shall Province of New York. An excellent study of and may be lawful to and for the constables, the working of the Quartering Act is in S. M. tithingmen, magistrates, and other civil Pargellis, Lord Loudoun in North America, officers of villages, towns, townships, cities,

legislative privileges of the assembly. See E. . h ;

ch. vii. districts, and other places, within his Majesty’s dominions in America, and in their An act to amend and render more effectual, default or absence, for any one justice of in his Majesty's dominions in America, an the peace inhabiting in or near any such vilact passed in this present session of parlia- lage, township, city, district or place, and for

ment, intituled, An act for punishing no others; and such constables .. . and mutiny and desertion, and for the better other civil officers as aforesaid, are hereby payment of the army and their quarters. required to billet and quarter the officers and WHEREAS ... [by the Mutiny Act of — soldiers, in his Majesty’s service, in the bar1765] .. . several regulations are made and racks provided by the colonies; and if there enacted for the better government of the shall not be sufficient room in the said bararmy, and their observing strict discipline, racks for the officers and soldiers, then and and for providing quarters for the army, and _ in such case only, to quarter and billet the , carriages on marches and other necessary residue of such officers and soldiers for whom occasions, and inflicting penalties on offend- there shall not be room in such barracks, in ers against the same act, and for many other inns, livery stables, ale-houses, victuallinggood purposes therein mentioned; but the houses, and the houses of sellers of wine by same may not be sufficient for the forces that retail to be drank in their own houses or may be employed in his Majesty’s dominions places thereunto belonging, and all houses of in America: and whereas, during the con- persons Selling of rum, brandy, strong water, tinuance of the said act, there may be oc- cyder or metheglin, by retail, to be drank in casion for marching and quartering of regi- houses; and in case there shall not be suffiments and companies of his Majesty’s forces cient room for the officers and soldiers in in several parts of his Majesty's dominions such barracks, inns, victualling and other in America: and whereas the publick houses publick ale-houses, that in such and no other and barracks, in his Majesty’s dominions in case, and upon no other account, it shall and America, may not be sufficient to supply may be lawful for the governor and council

62 DOCUMENTS OF AMERICAN HIsToORY of each respective province in his Majesty’s act; paying and allowing for the same the dominions in America, to authorize and ap-_ several rates herein after mentioned to be point, and they are hereby directed and im- payable, out of the subsistence-money, for powered to authorize and appoint, such diet and small beer, cyder, or rum mixed with proper person or persons as they shall think water. fit, to take, hire and make fit, and, in default VI. Provided always, That in case any of the said governor and council appointing innholder, or other person, on whom any and authorizing such person or persons, or in non-commission officers or private men shall

default of such person or persons so ap- be quartered by virtue of this act, .. . (expointed neglecting or refusing to do their cept on a march, or employed in recruiting, duty, in that case it shall and may be lawful and _ likewise except the recruits by them for any two or more of his Majesty’s jus- raised, for the space of seven days at most, tices of the peace in or near the said villages, for such non-commission officers and soldiers

towns, townships, cities, districts, and other who are recruiting, and recruits by them places, and they are hereby required to take, raised) shall be desirous to furnish such nonhire, and make fit for the reception of his commission officers or soldiers with candles, Majesty’s forces, such and so many uninhab- vinegar, and salt, and with small beer or ited houses, outhouses, barns, or other build- cyder, not exceeding five pints, or half a pint ings, as shall be necessary, to quarter therein of rum mixed with a quart of water, for each the residue of such officers and soldiers for man per diem, gratis, and allow to such nonwhom there should not be room in such bar- commission officers or soldiers the use of fire,

racks and publick houses as aforesaid. .. . and the necessary u[n]tensils for dressing II. And it is hereby declared and enacted, and eating their meat, and shall give notice That there shall be no more billets at any of such his desire to the commanding officer, time ordered, than there are effective soldiers and shall furnish and allow the same accordpresent to be quartered therein: and in order ingly; then . . . the non-commission officers that this service may be effectually provided and soldiers so quartered shall provide their for, the commander in chief in America, or own victuals; and the officer to whom it beother officer under whose orders any regi- longs to receive, or that actually does receive, ment or company shall march, shall, from the pay and subsistence of such non-commis-

time to time, give ...as early notice as sion officers and soldiers, shall pay the sevconveniently may be, in writing, signed by eral sums herein after-mentioned to be paysuch commander or officer of their march, able, out of the subsistence-money,.for diet specifying their numbers and time of march- and small beer, to the non-commission offiing as near as may be, to the respective gov- cers and soldiers aforesaid. . . . ernors of each province through which they VII. And whereas there are several bar-

are to march... . racks in several places in his Majesty’s said

III. [Military officers taking upon them- dominions in America, or some of them, selves to quarter soldiers contrary to this provided by the colonies, for the lodging and . act, or using any menace to a civil officer to covering of soldiers in lieu of quarters, for deter them from their duty, to be cashiered. the ease and conveniency as well of the inPersons aggrieved by being quartered on may habitants of and in such colonies, as of the complain to the justices, and be relieved. | soldiers; it is hereby further enacted, That V. Provided nevertheless, and it is hereby all such officers and soldiers, so put and enacted, That the officers and soldiers so placed in such barracks, or in hired uninhabquartered and billeted as aforesaid (except ited houses, outhouses, barns, or other buildsuch as shall be quartered in the barracks, ings, shall, from time to time, be furnished and hired uninhabited houses, or other build- and supplied there by the persons to be ings as aforesaid) shall be received and fur- authorized or appointed for that purpose by nished with diet, and small beer, cyder, or the governor and council of each respective rum mixed with water, by the owners of the province, or upon neglect or refusal of such inns, livery stables, alehouses, victualling- governor and council in any province, then houses, and other houses in which they are by two or more Justices of the peace residing allowed to be quartered and billeted by this in or neartsuch place, with fire, candles, vin-

Tue TOWNSHEND REVENUE ACT 63 egar, and salt, bedding, utensils for dressing XXX. And be it further enacted . . . their victuals, and small beer or cyder, not That this act... shall continue and be In exceeding five pints, or half a pint of rum force in all his Majesty’s dominions in mixed with a quart of water, to each man, America from [March 24, 1765] until without paying any thing for the same.... [March 24, 1767].

43, THE TOWNSHEND REVENUE ACT June 29, 1767 (D. Pickering, Statutes at Large, Vol. XXVII, p. 505 ff.) On the reorganization of the Ministry in July more effectually preventing the clandestine 1766, ‘Champagne Charlie’ Townshend became running of goods in the said colonies and chancellor of the exchequer; on the retirement plantations. of Chatham in October Townshend assumed the WHEREAS it is expedient that a revenue leadership mt the ministry. “From this time,” sould be raised, in your Majesty's dominsays Lecky, “the English government of America ions in America, for making a more certain

is little more than a series of deplorable blun- aan , i} ders” (History of England in the Eighteenth and adequate pr oursion for de fraying ve Century, Vol. III, p. 379). In May 1767 Town- charge of the administration of justice, and shend brought forward three acts dealing with the support of civil government, in such American affairs: a bill to suspend the New York provinces as it shall be found necessary; and assembly until it complied with the mutiny act; towards further defraying the expenses of de-

the establishment of a board of commissioners fending, protecting and securing the said

of the customs for the colonies; and a revenue dominions; ... be it enacted... . That act. It was expected that the revenue act would from and after the twentieth day of Novem-

yield some £40,000, part of which was to be hundred andund sixty used for the salaries of royal governors and ber, onedthousan seven judges in America. Townshend died in Septem- S€VEN, there shall be raised, levied, collected,

ber 1767, but the acts were enforced by his suc- and paid, unto his Majesty, his heirs, and cessors. On the surface the revenue acts and the successors, for upon and the _ respective reorganizations of the customs office were highly Goods here in after mentioned, which shall successful. Prior to 1767 the American customs be imported from Great Britazm into any had brought in some two thousand pounds an- colony or plantation in America which now nually at a cost of some nine thousand pounds; is or hereafter may be, under the dominion from 1768 to 1774 the American customs brought of his Majesty, his heirs, or successors, the ally, at a cost of thirteen thousand pounds. The several Rates and Duties following; that is

in an average of thirty thousand pounds annu- ; _ . new revenue measures excited the liveliest dis- © SAY,

satisfaction in the American colonies. See Docs. For every hundredweight avoirdupois of No. 45, 46 for non-importation agreements and crown, plate, flint, and white glass, four the Massachusetts Circular Letter. On the _ shillings and eight pence. Townshend Acts, see, G. E. Howard, Prelimt- For every hundred weight avoirdupois of naries of the Revolution, ch. x; E. Channing, red lead, two shillings. History of the United States, Vol. Ul, ch. iv; For every hundred weight avoirdupois of

R. Frothingham, Rise of the Republic, ch. vi; 1 hilling and two pence

C. H. Van Tyne, Causes of the War of Inde- green glass, One SHung al P -

pendence, ch. x; D. A. Winstanley, Lord Chat- For every hundred weight avoirdupois of

ham and the Whig Opposition. white lead, two shillings.

For every hundred weight avoirdupois of An act for granting certain duties in the painters colours, two shillings. British colonies and plantations in America; For every pound weight avoirdupois of tea,

for allowing a drawback of the duties of three pence. customs upon the exportation from this king- For every ream of paper, usually called or dom, of coffee and cocoa nuts of the produce known by the name of Af¢las fine, twelve shil-

of the said colonies or plantations; for dis- lings. .. . continuing the drawbacks payable on china IV... . and that all the monies that shall earthen ware exported to America; and for arise by the said duties (except the necessary |

64 DOCUMENTS OF AMERICAN His Tory charges of raising, collecting, levying, recov- seize, and from thence to bring, any kind of ering, answering, paying, and accounting for goods or merchandise whatsoever prohibited the same) shall be applied, in the first place, or uncustomed, and to put and secure the in such manner as is herein after mentioned, same in his Majesty’s storehouse next to the in making a more certain and adequate pro- place where such seizure shall be made; and vision for the charge of the administration whereas by an act made in the seventh and of justice, and the support of civil govern- eighth years of the reign of King William the ment in such of the said colonies and planta- Third, intituled An act for preventing frauds, tions where it shall be found necessary; and and regulating abuses, in the plantation trade, that the residue of such duties shall be payed it is, amongst otherthings, enacted, that the into the receipt of his Majesty’s exchequer, officers for collecting and managing his Majand shall be entered separate and apart from esty’s revenue, and inspecting the plantaall other monies paid or payable to his Maj- tion trade, in America, shall have the same

esty ... ; and shall be there reserved, to powers and authorities to enter houses or be from time to time disposed of by parlia- warehouses, to search or seize goods prohibment towards defraying the necessary ex- ited to be imported or exported into or out pense of defending, protecting, and securing, of any of the said plantations, or for which , the British colonies and plantations in Amer- any duties are payable, or ought to have

1CQ. been paid; and that the like assistance shall

V. And be it further enacted ..., That his be given to the said officers in the execution Majesty and his successors shall be, and are of their office, as, by the said recited act of hereby, impowered, from time to time, by the fourteenth year of King Charles the Secany warrant or warrants under his or their ond, is provided for the officers of England: royal sign manual or sign manuals, counter- but, no authority being expressly given by signed by the high treasurer, or any three the said act, made in the seventh and eighth or more of the commissioners of the treas- years of the reign of King William the Third, ury for the time being, to cause such monies to any particular court to grant such writs of

to be applied, out of the produce of the assistance for the officers of the customs in duties granted by this act, as his Majesty, the said plantations, it is doubted whether or his successors, shall think proper or neces- such officers can legally enter houses and sary, for defraying the charges of the ad- other places on land, to search for and seize ministration of justice, and the support of goods, in the manner directed by the said the civil government, within all or any of recited acts: To obviate which doubts for

the said colonies or plantations. . . . the future, and in order to carry the intenX. And whereas by an act of parliament tion of the said recited acts into effectual made in the fourteenth year of the reign of execution, be it enacted ... , That from and King Charles the Second, intituled, An act after the said twentieth day of November, for preventing frauds, and regulating abuses, one thousand seven hundred and sixty seven, in his Majesty’s customs, and several other such writs of assistance, to authorize and imacts now in force, rt is lawful for any officer power the officers of his Majesty’s customs of his Majesty’s customs, authorized by writ to enter and go into any house, warehouse, of assistance under the seal of his Majesty’s — shop, cellar, or other place, in the British col- , court of exchequer, to take a constable, head- onies or plantations in America, to search

borough, or other public officer inhabiting for and seize prohibited and uncustomed ! near unto the place, and in the daytime to goods, in the manner directed by the said , enter and go into any house, shop cellar, recited acts, shall and may be granted by the warehouse, or room or other place and, in said superior or supreme court of justice

case of resistance, to break open doors, having jurisdiction within such colony or chests, trunks, and other pakage there, to plantation respectively. ...

FUNDAMENTAL LAW AND THE BRITISH CONSTITUTION 65 44. FUNDAMENTAL LAW AND THE BRITISH CONSTITUTION Letters of the Massachusetts House to Ministry January, 1768 (Bradford’s Massachusetts State Papers, p. 137 ff.) These addresses to the British Ministry were part of the protest of the Massachusetts General 2. LETTER OF THE MASSACHUSETTS HOUSE

Court against the Townshend Acts of 1767. In TO THE MARQUIS OF ROCKINGHAM

January 1768 the Massachusetts House drew up January 22, 1768

a long letter to the Massachusetts agent, Dennis ,

De Bredt, addresses to Shelburne Chatham, My Lord, the superintending power of Rockingham, Conway and Camden, the Lords of that high court over all his Majesty’s subthe Treasury, a petition to the King, and acircu- jects in the empire, and in all cases which lar letter to the other American colonies, Doc. can consist with the fundamental rules of the No. 45. All of these documents were drafted Constitution, was never questioned in this by Samuel Adams. The extracts given below pre- Province, nor, as the House concieve, in any one ue carhest rorminations of the constitucoc other. :But, rineone of of tundamental law in € oritisn . futin all free states the constitution tion. The theory that Parliament could not pass is hxed; it 1s from thence that the supreme acts contrary to fundamental law became a legislative as well as the supreme executive basic theory in American constitutional law. See “etives its authority. Neither, then, can also Otis’s Speech on the Writs of Assistance, break through the fundamental rules of the Doc. No. 32, the Resolutions of Virginia on the constitution without destroying their own Stamp Act, Doc. No. 36, and the Massachusetts foundation. Circular Letter. The addresses of the House are given in full in Bradford’s Massachusetts State

Papers; an account of their authorship is in 3. LETTER oF THE MassAcHuseEtTts HousE

W. V. Wells, Life and Public Services of Samuel TO Lorp CAMDEN

Adams, Vol. I, ch. vii. See also, C. F. Mullett, January 29, 1768

Fundamental Law and the American Revolu- . . oo. . tion; R. G. Adams, Political Ideas of the Amer- Ii in all free states, the constitution is ican Revolution; A. C. McLaughlin, Courts, fixed, and the supreme legislative power of

Constitution and Parties, ch. i. the nation, from thence derives its authority; can that power overleap the bounds of the 1, LETTER oF THE MassacHusetTs House constitution, without subverting its own TO THE EARL OF SHELBURNE foundation? If the remotest subjects, are

, January 15, 1768 bound by the ties of allegiance, which this There are, my Lord, fundamental rules of people and their forefathers have ever acthe constitution, which it is humbly pre- knowledged; are they not by the rules of

sumed, neither the supreme legislative nor equity, intitled to all rights of that constituthe supreme executive can alter. In all free tion, which ascertains and limits both sovstates, the constitution is fixed; it is from ereignty and allegiance? If it is an essential

thence, that the legislative derives its au- unalterable right in nature, ingrafted into thority; therefore it cannot change the con- the British constitution as a fundamental stitution without destroying its own founda- law, and ever held sacred and irrevocable by

tion. If, then, the constitution of Great the subjects within the realm, and that what Britain is the common right of all British is a man’s own is absolutely his own; and subjects, it is humbly referred to your Lord- that no man hath a right to take it from

ship’s judgment, whether the supreme legisla- him without his consent; may not the subtive of the empire may rightly leap the jects of this province, with a decent firmness, bounds of it, in the exercise of power over which has always distinguished the happy the subjects in America, any more than over _ subjects of Britain, plead and maintain this

those in Britain. natural constitutional right?

66 DOCUMENTS OF AMERICAN HISTORY 45. MASSACHUSETTS CIRCULAR LETTER February 11, 1768 (Works of Samuel Adams, ed. by H. A. Cushing, Vol. I, p. 184 ff.) This circular letter, drawn up by Samuel Adams, which he may freely give, but cannot be informed the assemblies of the other American taken from him without his consent: That colonies of the measures which the Massachu- the American Subjects may, therefore, ex-

setts General Court had taken with regard to ¢Jusive of any Consideration of Charter the Townshend acts. On the failure of the Massa- Rights, with a decent firmness, adapted to chusetts House to rescind the resolution under the Character of free men & subjects assert

which this letter was prepared, Governor Ber- ; ee J

nard dissolved the General Court. The Circular this natural and constitutional Right. _ Letter elicited favorable responses from several It is, moreover, their humble opinion, of the other colonies, notably from Virginia. See, which they express with the greatest Defer-

R. Frothingham, Rise of the Republic of the rence to the Wisdom of the Parliament, that United States, ch. vi; W. V. Wells, Life and Pub- the Acts made there, imposing Duties on the

lic Services of Samuel Adams, Vol. I, p. 152 ff.; People of this province, with the sole & T. Hutchinson, History of the Province of Massa- express purpose of raising a Revenue, are

chusetts Bay, 1749-1774. Infringements of their natural & constituPro. of Massachusetts Bay, February 11,1768. tional Rights: because, as they are not repre-

SIR, sented in the British Parliament, his Maj-

The House of Representatives of this Prov- estys Commons in Britain, by those Acts ince, have taken into their serious Consider- grant their Property without their consent.

ation, the great difficulties that must accrue This House further are of Opinion, that to themselves and their Constituents, by the their Constituents, considering their local operation of several acts of Parliament, im- Circumstances cannot by any possibility, be posing Duties & Taxes on the American col- represented in the Parliament, & that it will onys. As it is a Subject in which every Col- forever be impracticable, that they should be ony is deeply interested, they have no reason equally represented there, & consequently to doubt but your Assembly is deeply im- not at all; being separated by an Ocean of a

pressed with its importance, & that such thousand leagues: and that his Majestys constitutional measures will be come into, Royal Predecessors, for this reason, were

as are proper... . graciously pleased to form a subordinate legThe House have humbly represented to the _islature here, that their subjects might enjoy ministry, their own Sentiments that his Maj- the unalienable Right of a Representation: esty’s high Court of Parliament is the su- Also that considering the utter impracticabilpreme legislative Power over the whole Em- ity of their ever being fully & equally reprepire; That in all free States the Constitution sented in parliament, & the great Expence is fixed; & as the supreme Legislative derives that must unavoidably attend even a partial its Power & Authority from the Constitution, representation there, this House think that it cannot overleap the Bounds of it, without a taxaticn of their Constituents, even withdestroying its own foundation; That the out their Consent, grievous as it is, would be constitution ascertains & limits both Sover- preferable to any Representation that could

eignity and allegiance, &, therefore, his Maj- be admitted for them there. a esty’s American Subjects, who acknowledge Upon these principles, & also considering themselves bound by the Ties of Allegiance, that were the right in Parliament ever so have an equitable Claim to the full enjoy- clear, yet, for obvious reasons, it would be ment of the fundamental Rules of the Brit- beyond the rules of Equity that their Con-

ish Constitution: That it is an essential, stituents should be taxed, on the manufacunalterable Right, in nature, ungrafted into tures of Great Britain here, in Addition to the British Constitution, as a fundamental the dutys they pay for them in England, & Law, & ever held sacred & irrevocable by the other advantages arising to G Britain from Subjects within the Realm, that what a man _ the Acts of trade, this House have preferred has honestly acquired is absolutely his own, a humble, dutifull, & loyal Petition, to our

Boston NON-IMPORTATION AGREEMENT 67 most gracious Sovereign, & made such Repre- having a disposition to make themselves insentations to his Majesty’s Ministers, as they dependent of the Mother Country, they have

apprehended would tend to obtain redress. taken occasion, in the most humble terms, They have also submitted to Consideration to assure his Majesty & his Ministers that whether any People can be said to enjoy any _- with regard to the People of this province, &

degree of Freedom if the Crown in addition as they doubt not, of all the colonies the to its undoubted Authority of constituting a charge is unjust. Governor, should appoint him such a Stipend The House is fully satisfied, that your Asas it may judge proper, without the Consent sembly is too generous & liberal in sentiment, of the people & at their expence; & whether, to believe, that this Letter proceeds from an

while the Judges of the Land & other Civil Ambition to take the lead, or dictating to officers hold not their Commissions during the other Assemblys: They freely submit good Behaviour, their having salarys ap- their opinions to the Judgment of others, & pointed for them by the Crown independent _ shall take it kind in your house to point out

of the people hath not a tendency to sub- to them any thing further, that may be vert the principles of Equity & endanger the thought necessary.

Happiness and Security of the Subject... . This House cannot conclude, without exThese are the Sentiments & proceedings of | pressing their firm Confidence in the King this House; & as they have too much reason our common head & Father, that the united to believe that the enemys of the Colonies & dutifull Supplications of his distressed have represented them to his Majestys Min- American Subjects will meet with his Royal isters & the parliament as factious disloyal & & favorable Acceptance.

46. BOSTON NON-IMPORTATION AGREEMENT August 1, 1768 (The Annual Register, 1768, p. 235) The enactment of the Townshend measures led many difficulties it at present labours under to a renewal of the non-importation measures on account of the scarcity of money, which which had been employed at the time of the js daily increasing for want of the other reStamp Act. As early as March 1768 merchants mittances to discharge our debts in Great of Boston agreed not to import from England if Britain, and the large sums collected by the would make similar promises. The effort to es- officers of the customs for duties on goods tablish a non-importation league, however, was ported; the heavy taxes levied to discharge unsuccessful. In August 1768 the merchants of the debts contracted by the government in Boston acted independently: within a few weeks the late war; the embarrassments and resimilar action was taken by the merchants of _ strictions laid on trade by several late acts of other New England towns and by those of New _ parliament; together with the bad success of

merchants from New York and Philadelphia ;

York, Philadelphia did not fall into line until our cod fishery, by which our principal late in the following year. These and other non- sources of remittance are like to be greatly

rom England by over one-half in 1768 and 1769.

en agreements reduced | importations diminished, and we thereby rendered unable

see, A. M. Schlesinger, The Colonial Merchants to pay the debts we owe the merchants 1 and the American Revolution; C. M. Andrews, teat Britain, and to continue the importaBoston Merchants and the Non-Importation tion of goods from thence; Movement; C. H. Van Tyne, Causes of the War We, the subscribers, in order to relieve the

of Independence, ch. x. trade under those discouragements, to pro-

mote industry, frugality, and economy, and to discourage luxury, and every kind of exAgreement entered into by the Inhabitants travagance, do promise and engage to and

of Boston with each other as follows:

The merchants and traders in the town of First, That we will not send for or import Boston having taken into consideration the from Great Britain, either upon our own deplorable situation of the trade, and the account, or upon commission, this fall, any

68 DOCUMENTS OF AMERICAN HiIsToRyY other goods than what are already ordered Fourthly, That we will not import, on our

for the fall supply. own account, or on commissions or purSecondly, That we will not send for orim- chase of any who shall import from any

port any kind of goods or merchandize from _ other colony in America, from January 1769,

Great Britain, either on our own account, or to January 1770, any tea, glass, paper, or on commissions, or any otherwise, from the other goods commonly imported from Great

Ist of January 1769, to the Ist of January Britain.

1770, except salt, coals, fish-hooks and lines, Fifthly, That we will not, from and after

hemp, and duck bar lead and shot, wool- the ist of January 1769, import into this

cards and card-wire. province any tea, paper, glass, or painters

Thirdly, That we will not purchase of any colours, until the act imposing duties on factor, or others, any kind of goods im-_ those articles shall be repealed. ported from Great Britain, from January In witness whereof, we have hereunto set

1769, to January 1770. our hands, this first day of August, 1768. 47. THE REGULATORS OF NORTH CAROLINA Petition of the Inhabitants of Anson County, North Carolina October 9, 1769

(Colonial Records of North Carolina, ed. by W. L. Saunders, Vol. VIII, p. 75 ff.) Sectionalism, which played so important a part pass’d in the reign of King Charles the first, in colonial history, was particularly significant as well as the act of Settlement of the Crown in the southern colonies. From Virginia to South of the Revolution. We therefore beg leave to Carolina, the backcountry of small farmers, non- lay before you a specimen thereof, that your

slaveholding, dissenting in religion, undercompassionate endeavours represented in politics, was aligned against the . amay f tend to the tidewater. In North and South Carolina this relief of your injured Constituents, whose opposition came to an open rupture. In both distressed condition calls aloud for aid. The colonies the upcountry yeomen organized in alarming cries of the oppressed possibly may “Regulator” bands and interfered with the reach your Ears; but without your zeal how courts, with the collection of rents, etc. See, J.S. shall they ascend the throne. How relentless

Bassett, “The Regulators of North Carolina”, jis the breast without sympathy, the heart American Hist. Assoc. Report, 1894; M. De L. that cannot bleed on a View of our calamity; Haywood, Governor Wilkam Tryon; W. A. to see tenderness removed, cruelty stepping

Schaper, ‘“Sectionalism in South Carolina, in; and all our liberties and priviledges inAmerican Hist. Assoc. Report, 1900; F. Jf. La : Turner, Zhe Frontier in American History, vaded and abridg’d by (as it were) domes-

ch. ii ticks who are conscious of their guilt and void of remorse. O how daring! how relentMr. SPEAKER AND GENTLEMEN OF THE As- less! whilst impending Judgments loudly

SEMBLY: threaten and gaze upon them, with every

The Petition of the Inhabitants of Anson emblem of merited destruction. County, being part of the Remonstrance of A few of the many grievances are as fol-

the Province of North Carolina, lows, viz.,

HuMBLY SHEWETH, That the Province in 1. That the poor Inhabitants in general general labour under general grievances, and are much oppress’d by reason of dispropor-

the Western part thereof under particular tionate Taxes, and those of the western

ones; which we not only see but very sensi- Counties in particular; as they are generally

bly feel, being crouch’d beneath our suffer- in mean circumstances. .

ings: and, notwithstanding our sacred privi- 2. That no method is prescribed by Law ledges, have too long yielded ourselves slaves for the payment of the Taxes of the Western to remorseless oppression.—Permit us to con- counties in produce (in lieu of a Currency) ceive it to be our inviolable right to make as is in other Counties within this Province;

known our grievances, and to petition for to the Peoples great oppression.

redress; as appears in the Bill of Rights 3. That Lawyers, Clerks, and other pen-

THE REGULATORS OF NORTH CAROLINA 69 tioners, in place of being obsequious Servants 9. That Lawyers be effectually Barr’d for the Country’s use, are become a nuisance, from exacting and extorting fees. . as the business of the people is often trans- 10. That all doubts may be removed in acted without the least degree of fairness, respect to the payment of fees and costs on the intention of the law evaded, exorbitant Indictments where the Defendant is not fees extorted, and the sufferers left to mourn found guilty by the jury, and therefore ac-

under their oppressions. quitted.

4. That an Attorney should have it in his 11. That the Assembly make known by

power, either for the sake of ease or interest Remonstrance to the King, the conduct of or to gratify their malevolence and spite, to the cruel and oppressive Receiver of the commence suits to what Courts he pleases, Quit Rents, for omitting the customary easie however inconvenient it may be to the De- and effectual method of collecting by dis-

fendant: is a very great oppression. tress, and pursuing the expensive mode of 5. That all unlawful fees taken on Indict- commencing suits in the most distant Courts.

ment, where the Defendant is acquitted by 12. That the Assembly in like manner his Country (however customary it may be) make known that the Governor and Council

is an oppression. do frequently grant Lands to as many as 6. That Lawyers, Clerks, and others ex- they think proper without regard to head torting more fees than is intended by law; rights, notwithstanding the contrariety of His

is also an oppression. Majesties Instructions; by which means im-

7. That the violation of the King’s In- mense sums has been collected and numerous structions to his delegates, their artfulness Patents granted, for much of the most ferin concealing the same from him; and the _ tile lands in this Province, that is yet uningreat Injury the People thereby sustains: is habited and uncultivated, environed by great

a manifest oppression. numbers of poor people who are necessitated

And for remedy whereof, we take the to toil in the cultivation of bad Lands

freedom to recommend the following mode whereon they hardly can subsist, who are of redress, not doubting audience and ac-_ thereby deprived of His Majesties liberality

ceptance; which will not only tend to our and Bounty: nor is there the least regard relief, but command prayers as a duty from paid to the cultivation clause in said Patent

your humble Petitioners. mentioned, as many of the said Council as 1. That at all elections each suffrage be well as their friends and favorites enjoy large

given by Ticket & Ballot. Quantities of Lands under the above-men2. That the mode of Taxation be altered, tioned circumstances. and each person to pay in proportion to the 13. That the Assembly communicates in

profits arising from his Estate. like manner the Violation of His Majesties 3. That no future tax be laid in Money, Instructions respecting the Land Office by

untill a currency is made. the Governor and Council, and of their own

4. That there may be established a West- rules, customs and orders; if it be sufficiently ern as well as a Northern and Southern Dis- proved that after they had granted War-

trict, and a Treasurer for the same. rants for many Tracts of Land, and that 5. That when a currency is made it may the same was in due time survey’d and rebe let out by a Loan office on Land security, turn’d, and the Patent fees timely paid into

and not to be call’d in by a Tax. the said office; and that if a private Council 6. That all debts above 40s. and under was called on purpose to avoid spectators, £10 be tried and determined without Law- and peremptory orders made that Patents yers, by a Jury of six freeholders impanneled should not be granted; and Warrants by by a Justice, and that their verdict be enter’d their orders arbitrarily to have issued in the by the said Justice, and be a final judgment. names of other Persons for the same Lands, 7. That the Chief Justice have no perqui- and if when intreated by a solicitor they re-

sites, but a Sallary only. fus’d to render so much as a reason for their 8. That Clerks be restricted in respect to so doing, or to refund any part of the money fees, costs, and other things within the course by them extorted.

of their office. 14. That some method may be pointed out

70 DOCUMENTS OF AMERICAN History that every improvement on Lands in any of Orange, .. . Cumberland . . . Mecklenburg

the Proprietor’s part be proved when begun, ... and in Tryon County... . |

by whom, and every sale made, that the eld- 16. That every denomination of People est may have the preference of at least 300 may marry according to their respective

Acres. Mode, Ceremony, and custom, after due pub15. That all taxes in the following coun- lication or Licence.

ties be paid as in other Counties in the Prov- 17. That Doctr Benjamin Franklin or ince, (i.e.) in the produce of the Country some other known patriot be appointed and that ware Houses be erected as follows, Agent, to represent the unhappy state of this

(viz.) in Anson County, at Isom Haley’s Province to His Majesty, and to solicit the ferry landing on Pe Dee river; Rowan and _ several Boards in England:—

48. NEW YORK SONS OF LIBERTY RESOLUTIONS ON TEA November 29, 1773

(H. Niles, Principles and Acts of the Revolution, 1822 ed. p. 188-9) An act of May 1773 permitted the East India those important purposes, agree to associate Company to export tea directly to the American together, under the name and style of the Colonies free from all duties except the three- sons of liberty of New York, and engage our penny tax payable in America. The Company dis- — ponoy to, and with each other, faithfully to

posed of its enormous quantities of tea through observe and perform the following resolunapoly om the tea business in the Colonies, ie Ons, viz

on e€ tea usmess in . , °

ve the danger of this monopoly rather than 1st. Resolved, That whoever shall aid, or the principle of the tea tax that aroused resent- abet, or in any manner assist in the introducment in the Colonies. In Charleston the tea was tion of tea, from any place whatsoever, into allowed to enter but was placed in government this colony, while it is subject, by a British warehouses. In Philadelphia, New York and else- act to parliament, to the payment of a duty, where ships bearing tea were forced to turn for the purpose of raising a revenue in Amer-

back. In Boston the attempt to land tea led to ica, he shall be deemed an enemy to the

the notorious Boston Tea Party of December 16, liberties of America 1773. The Resolutions of the New York Sons of 2d. Resolved. That whoever shall be aidin

Liberty are given as typical of the methods em- 2 ake a g;

ployed by the Colonists. See, A. M. Schlesinger, °F assisting, in the landing, or carting, or Colonial Merchants and the American Revolu- such tea, from any ship or vessel, or shall tion; C. L. Becker, History of Political Parties hire any house, store-house, or cellar or any in New York, 1760-1776; H. Dawson, The Sons place whatsoever to deposit the tea, subject of Liberty in New York; A. C. Flick, The Amer- to a duty as aforesaid, he shall be deemed ican Revolution in New York; I. Q. Leake, an enemy to the liberties of America. Memoir of the Life and Times of General J onn 3d. Resolved, That whoever shall sell, or buy,

Lamb; M. Farrand, “The Taxation of Tea, tea, or shall aid... in transporting

American Hist. Review, Vol. Il. such tea, .. . from this city, until the...

_.. To prevent a calamity which, of all revenue act shall be totally and clearly reothers, is the most to be dreaded—slavery, pealed, he shall be deemed an enemy to the and its terrible concomitants—we, subscrib- liberties of America. ers being influenced from a regard to liberty, 4th. Resolved, That whether the duties on and disposed to use all lawful endeavors in _ tea, imposed by this act, be paid in Great

our power, to defeat the pernicious project, Britain or in America, our liberties are

and to transmit to our posterity, those bless- equally affected. ings of freedom which our ancestors have Sth. Resolved, That whoever shall transgress handed down to us; and to contribute to the any of these resolutions, we will not deal support of the common liberties of America, with, or employ, or have any connection with which are in danger to be subverted, do, for him.

Tue INTOLERABLE ACTS 71 49. THE INTOLERABLE ACTS 1774

The Boston Tea Party of December 16, 1773 divers ill-affected persons, to the subversion and the disturbances in Boston and Massachu- of his Majesty’s government, and to the setts, led Lord North to ask Parliament to vote yttey destruction of the publick peace, and a series of measures adequate to the emergency. good order of the said town; in which com-

var cts” 14, thewas a ° these motors ane motions and insurrections laid before Parliament— . certain valuable Port Act. The introduction of these measures cargoes of teas, being the property of the led to one of the most notable debates in Parlia- East India Company , and on board certam

mentary history; see Hansard, Parliamentary vessels lying within the bay or harbour of History, Vol. XVII, passim. Ultimately five Boston, were seized and destroyed: And coercive acts received the royal signature: the whereas, in the present condition of the said Boston Port Act; the Massachusetts Govern- town and harbour, the commerce of his Majment Act; the Administration of Justice Act; esty’s subjects cannot be safely carried on the Quartering Act; and the Quebec Act. The there, nor the customs payable to his Maj-

» are essentia Similar to ose O e : . . , _

provisions of the Quartering Acts approved ’ the esty duly collected; and it 1s therejore expe-

urtering Act of 1768, Doc. No. 42. On the In- dient nat a off he of his eed s mn

‘rable Acts, see G. Bancroft, History of the toms SHOU é fort wm th removed from the

ited States, author’s last revision, Vol. III, said town: .. . be it enacted ..., That xxxv, Vol. IV, chs. i, v.; E. Channing, Hiés- from and after June 1, 1774, it shall not be y, Vol. III, ch. v.; G. E. Howard, Prelimi- lawful for any person or persons whatsoever

ies of the Revolution, cn. xv; C. H. Van to lade, put, ... off or from any quay,

re, Causes of the War of Independence, ch. wharf, or other place, within the said town Lord Fitzmaurice, Life of William, Earl of of Boston, or in or upon any part of the lburne, Vol. 11; F. A. Mumby, George Il hay, commonly called The Harbour of Bosi the American Revolution: G. O. Trevelyan, 9% between a certain headland or point

e American Revolution, Vol. I. called Nahant Point, ...and a certain other

headland or point called Alderton Point, ...

1. THE Boston Port Act or in or upon any island, creek, landMarch 31, 1774 ing-place, bank, or other place, within the

(D. Pickering, Statutes at Large, Vol. XXX, said bay or headlands, into any ship, vessel,

p. 336 ff.) lighter, boat, or bottom, any goods, wares,

The Boston Port Act, the first and most odious Or merchand ise whatsoever, to be transp orted of the intolerable acts, was designed specifically or carried into any other country, province, as a punishment of Boston for the lawlessness Of place whatsoever, or into any other part

of the Tea Party. The re-opening of the Port of the said province of the Massachuset’s was made conditional upon the payment of Bay, in New England; or to take up, ... damages for losses sustained by the East India within the said town, or in or upon any of Company. For the reaction of the colonies to the places aforesaid, out of any boat, ...

the Boston Port Bill see Docs. No. 50, 51. any goods, ... to be brought from any

An act to discontinue, in such manner, and other country, province, or place, or any for such time as are therein mentioned, other part of the said province, of the Masthe landing and discharging, lading or ship- sachuset's Bay in New England, upon pain bing, of goods, wares, and merchandise, at of the forfeiture of the said goods, .. . and the town, and within the harbour, of Bos- of the said boat, . . ., and of the uns, amton, in the province of Massachuset’s Bay, munition, tackle, furniture, and stores, in or

in North America. belonging to the same: And if any such

goods, . . . shall, within the said town, or WHEREAS dangerous commotions andin- in any the places aforesaid, be laden or surrections have been fomented and raised taken in from the shore into any barge,... in the town of Boston, im the province of to be carried on board any ship or vessel Massachuset’s Bay, it New England, by outward-bound to any other country or prov:

72 DOCUMENTS OF AMERICAN HISTORY ince, . . . or to be laden into such barge, 2. MASSACHUSETTS GOVERNMENT ACT

a from or out of any ship or vessel com- May 20, 1774

mg in... from any other country, such (D. Pickering, Statutes at Large, Vol. XXX,

barge, . . . shall be forfeited and lost. ... p. 381 ff.)

IV. Provided always, That nothing in this ae

act contained shall extend ... to any mili- On March 28 Lord North, insisting that he tary or other stores of his Majesty’s use, or wished (° take the executive power from the

to the ships . . . whereon the same shall be ) the democratic part of the govern-

aa ment”, introduced an act for “the better regu-

laden, which shall be commissioned by, and Jating the government of the Province of in the immediate pay of, his Majesty ...5; Massachusetts Bay”, which would “effectually

nor to any fuel or victual brought coastwise purge the constitution of all its crudities.” The from any part of the continent of America, _ Bill passed by large majorities, but eleven Lords

for the necessary use and sustenance of the entered a protest against it. Massachusetts inhabitants of the town of Boston, provided Aree me the administration of ne new the vessels wherein the same are to be car- Che DEE, Mae DAaNcron, aistory, au or’s ast rev.

ried shall be duly furnished with a cocket Se oe “ iii; R. Frothingham, Rise of the and let-pass, after having been duly searched CRUDE, CA. IX.

by the proper officers ... at Marblehead, in 4” act for the better regulating the governthe port of Salem, ... ; and that some of- ment of the province of the Massachuset’s ficer of his Majesty’s customs be also there Bay, in New England. put on board the same vessel, who is hereby And whereas the method of electing such authorized to go on board, and proceed with counsellors or assistants, . . . hath, by the said vessel, together with a sufficient repeated experience, been found to be exnumber of persons properly armed, for his /¢remely ill adapted to the plan of governdefence to the said harbour of Boston; nor ment established in the province of the Mas-

in any ships .. . which may happen to be sachusets Bay ..., and hath... for some within the said harbour of Boston on or be- time past, been such as had the most mani-

fore the first day of June (1774) and may fest tendency to obstruct, and, in great have either laden or taken on board, or be measure, defeat, the execution of the laws;

there with intent to load or take on board, ... : And it hath accordingly happened, or to land or discharge any goods, wares that an open resistance to the execution of the . . . provided the said ships . .. do depart Jaws hath actually taken place in the town of

, .. within fourteen days after (1 June Boston, and the neighbourhood thereof, . ..

1774). 2... And whereas it is, under these circumstances,

X. Provided also,... That nothing herein become absolutely necessary, ... that the apcontained . . . be construed, to enable his pointment of the said counsellors or assistants Majesty to appoint such port, ... or off- should henceforth be put upon the like footing cers, in the said town of Boston, or in the asis established in such other of his Majesty’s said bay or islands, until it shall sufficiently colonies ...in America, the governors whereof appear to his Majesty that full satisfaction are appointed by his Majesty’s commission, hath been made by or on behalf of the in- «under the great seal of Great Britain: Be it habitants of the said town of Boston to the therefore enacted ..., that from and after Auunited company of merchants of England gust 1, 1774, so much of the charter... [of trading to the Hast Indies, for the damage 1691] which relates to the time and manner of sustained by the said company by the de- electing the assistants or counsellors for the

struction of their goods sent to the said said province, be revoked, . .. and that the town of Boston, ... and until it shall be offices of all counsellors and assistants, certified to his Majesty, in council, by the elected and appointed in pursuance thereof, governor, . . . of the said province, that shall from thenceforth cease and determine: reasonable satisfaction hath been made to’ And that, from and after the said August 1, the officers of his Majesty’s revenue, and 1774, the council, or court of assistants of others, who suffered by the riots and insur- the said province for the time being, shall rections above mentioned, in 1773 and 1774. be composed of such of the inhabitants or

Tue INTOLERABLE ACTS 73 proprietors of lands within the same as shall cern, and to pass many dangerous and unbe thereunto nominated and appointed by warrantable resolves: for remedy whereof, his Majesty ..., provided, that the num- be it enacted, that from and after August 1, ber of the said assistants or counsellors shall 1774, no meeting shall be called by the select not, at any one time, exceed thirty-six, nor men, or at the request of any number of

be less than twelve. freeholders of any township, district, or preIJ. And it is hereby further enacted, That cinct, without the leave of the governor, or, the said assistants or counsellors, so to be in his absence, of the lieutenant-governor, 1n appointed as aforesaid, shall hold their offices writing, expressing the special business of the respectively, for and during the pleasure of said meeting, except the annual meeting in

his Majesty... . the months of March or May, for the choice III. And be it further enacted ..., That of select men, constables, and other officers, from and after July 1, 1774, it shall and may or except for the choice of persons to fill up be lawful for his Majesty’s governor for the _ the offices aforesaid, on the death or removal

time Leing of the said province, or, in his of any of the persons first elected to such absence, for the lieutenant-governor, to nom- offices, and also, except any meeting for the

inate and appoint, under the seal of the election of a representative or representaprovince, from time to time, and also to tives in the general court; and that no other remove, without the consent of the council, matter shall be treated of at such meetall judges of the inferior courts of common ings... . pleas, commissioners of Oyer and Termuner,

the attorney general, provosts, marshals, 3, ADMINISTRATION OF JUSTICE ACT

ing; ... p. 367 ff.)

justices of the peace, and other officers to May 20, 1774

the council or courts of justice belong- (D. Pickering, Statutes at Large, Vol. XXX, VI. And be it further enacted . . . , That, This act was designed to provide for a more upon every vacancy of the offices of chief impartial administration of justice by transfer-

justice and judges of the superior court of ring certain trials to another Province or to the said province, from and after July 1, Great Britain. It was directed not only toward 1774, the governor for the time being, or, the maintenance of order but to the more effiin his absence, the lieutenant-governor, with- cient administration of the customs laws.

out the consent of the council, shall have full An act for the impartial administration of power and authority to nominate and ap- justice in the cases of persons questioned point the persons to suceed to the said offices, for any acts done by them in the execution who shall hold their commissions during the of the law, or for the suppression of riots

pleasure of his Majesty ... ; and tumults, in the province of the MassaVII. And whereas, by several acts of the chuset’s Bay, in New England. general court, ... the freeholders and inhabitants of the several townships, districts, WHEREAS in his Majesty’s province of and precincts, qualified, as is therein ex- Massachuset’s Bay, i New England, an at-

pressed, are authorized to assemble together, tempt hath lately been made to throw off the annually, or occasionally, upon notice given, authority of the parliament of Great Britain in such manner as the said acts direct, for the over the said province, and an actual and

choice of selectmen, constables, and other avowed resistance, by open force, to the officers, and for the making and agreeing execution of certain acts of parliament, hath upon such necessary rules, orders, and bye- been suffered to take place, uncontrouled and laws, for the directing, managing, and order- unpunished, ... : and whereas, in the presing, the prudential affairs of such townships, ent disordered state of the said province, it

districts, and precincts, and for other pur- is of the utmost importance .. . to the reposes: and whereas a great abuse has been establishment of lawful authority throughout made of the power of calling such meetings, the same, that neither the magistrates acting

and the inhabitants have, contrary to the in support of the laws, nor any of his Majdesign of their institution, been misled to esty’s subjects aiding and assisting them treat upon matters of the most general con- therein, or in the suppression of riots and

74 DOCUMENTS OF AMERICAN HIsTORY tumults, ... should be discouraged from be had in any other colony, before the govthe proper discharge of their duty, by an ap- ernor, . . . of such colony; and if the trial prehension, that in case of their being ques- shall be appointed to be had in Great Britain,

tioned for any acts done therein, they may then before his Majesty’s court of King’s be liable to be brought to trial for the same Bench, at a time to be mentioned in such before persons who do not acknowledge the yecognizances; and the governor, ... or validity of the laws, in the execution thereof, court of King’s Bench, where the trial is or the authority of the magistrate in support appointed to be had in Great Britain, upon of whom, such acts had been done: in order the appearance of such person, according to therefore to remove every such discourage- such recognizance, or in custody, shall either

ment from the minds of his Majesty’s sub- commit such person, or admit him to bail,

jects, and to induce them, upon all proper until such trial... . occasions, to exert themselves in support of II. And, to prevent a failure of justice, the public peace of the province, and of the from the want of evidence on the trial of authority of the King and Parliament of any such inquisition, indictment or appeal, be Great Britain over the same; be it enacted it further enacted, That the governor... ..., That if any inquisition or indictment is hereby authorised and required, to bind in shall be found, or if any appeal shall be recognizances to his Majesty all such witsued or preferred against any person, for nesses as the prosecutor or person against murther, or other capital offence, in the whom such inquisition or indictment shall be province of the Massachuset’s Bay, and it found, or appeal sued or preferred, shall deshall appear, by information given upon oath _ sire to attend the trial of the said inquisi-

to the governor ... of the said province, tion, ... for their personal appearance, at that the fact was committed by the person the time and place of such trial, to give evi-

against whom such inquisition or indictment dence: and the said governor... shall shall be found, or against whom such appeal thereupon appoint a reasonable sum to be shall be sued or preferred, as aforesaid, allowed for the expences of every such wit-

either in the execution of his duty as a mag- ness... ,

istrate, for the suppression of riots, or in VI. [Persons brought before justices etc. the support of the laws of revenue, or in accused of any capital crime in the execuacting in his duty as an officer of revenue, tion of their duty, to be admitted to bail.] or in acting under the direction and order of VIII. And be it further enacted . . . That any magistrate, for the suppression of riots, this act... shall... be, and continue in or for the carrying into effect the laws of force, for and during the term of three years. revenue, or in aiding and assisting in any of

the cases aforesaid; and if it shall also ap- 4. Tue Quesec Act pear, to the satisfaction of the said governor June 22, 1774 .. . that an indifferent trial cannot be had (D. Pickering, Statutes at Large, Vol. XXX,

within the said province, in that case, it shall p. 549)

and may be lawful lor the governor . . . , to The Quebec Act was not, properly speaking, one

direct, with the advice and consent of the of the coercive acts. It was not designed with council, that the inquisition, indictment, Or reference to conditions in Massachusetts or the appeal, shall be tried in some other of his other seaboard colonies. Nevertheless Americans Majesty’s colonies, or in Great Britain; and _ regarded its provisions for religious toleration to for that purpose, to order the person against Catholics, and for the extension of the territory whom such inquisition or indictment shall of Quebec westward, as “intolerable”. As a mat-

be found, ... to be sent, under sufficient ter of fact the Quebec Act was one of the most custody, to the place appointed for his trial, enlightened pieces of colonial administration In Imit such person to bail, taking a the history of European colonial expansion. On recognizance . . . from such person, with Quebec and the American Revolution, which is

or to ae P . the Quebec Act see V. Coffin, The Province of sufficient sureties, ...in such sums of critical, and R. Coupland, The Quebec Act: a money as the said governor . . . shall deem Study in Statesmanship. For the American backreasonable, for the personal appearance of ground, see C. W. Alvord, The Mississippi Valsuch person, if the trial shall be appointed to ley in British Politics, 2 Vols.; W. Kingsford,

Tur INTOLERABLE ACTS 75 History of Canada, Vol. V; A. L. Burt, The Old Subjects within the Province of Quebec, the

Province of Quebec. Religious Orders andand Communities ony ex; . cepted, may also hold enjoy t eir PropAn Act for making ef ectual Provision, Jor erty and Possessions, together with all Custhe Government of the Province of Quebec, toms and Usages, relative thereto, and all

in North America. other their Civil Rights, in as large, ample ... May it therefore please Your most Ex- and beneficial Manner, as if the said Proc-

cellent Majesty, lamation, Commissions, Ordinances, and other

That it may be enacted: [Boundaries de- Acts and Instruments, had not been made, fined, Boundaries of Proclamation of 1763 and as may consist with their Allegiance extended to include territory west to the to His Majesty, and Subjection to the Crown Mississippi, north to the frontiers of the and Parliament of Great Britain; and that Hudson’s Bay territory, and the islands in in all Matters of Controversy relative to

the mouth of the St. Lawrence. | Property and Civil Rights, Resort shall be

| And whereas the Provisions made by had to the Laws of Canada, as the Rule for the said Proclamation, in respect to the Civil the Decision of the same; and all Causes Government of the said Province of Quebec, that shall hereafter be instituted in any of and the Powers and Authorities given to the the Courts of Justice, to be appointed within Governor and other Civil Officers of the said and for the said Province by His Majesty, Province, by the Grants and Commissions His Heirs and Successors, shall, with respect issued in consequence thereof, have been to such Property and Rights, be determined found, upon Experience, to be inapplicable agreeably to the said Laws and Customs of

to the State and Circumstances of the said Canada,...

Province, the Inhabitants whereof amounted And whereas the Certainty and Lenity of at the Conquest, to above Sixty five thous- the Criminal Law of England, and the Benesand Persons, professing the Religion of the fits and Advantages resulting from the Use

Church of Rome. ... of it, have been sensibly felt by the InhabitIt is hereby declared, That His Majesty’s ants from an Experience of more than Nine

Subjects professing the Religion of the Years, during which it has been uniformly Church of Rome, of, and in the said Prov- administered; be it therefore further enacted ince of Quebec, may have, hold, and enjoy, by the Authority aforesaid, That the same the free Exercise of the Religion of the shall continue to be administered, and shall Church of Rome, subject to the King’s Su- be observed as Law, in the Province of premacy, declared and established by an Act Quebec, as well in the Description and Qual-

made in the First Year of the Reign of ity of the Offense, as in the Method of Queen Elizabeth, over all the Dominions and Prosecution and Trial, and the Punishment

Countries which then did, or thereafter and Forfeitures thereby inflicted, to the Exshould, belong to the Imperial Crown of this clusion of every other Rule of Criminal Law,

Realm; and that the Clergy of the said or Mode of Proceeding thereon, which did Church may hold, receive, and enjoy their or might prevail in the said Province before accustomed Dues and Rights, with respect the Year of our Lord One thousand seven to such Persons only as shall profess the said hundred and sixtyfour; any Thing in this

Religion. Act to the Contrary thereof in any Respect Provided nevertheless, That it shall be notwithstanding; .. .

lawful for His Majesty, His Heirs or Suc- And whereas it may be necessary to ordain cessors, to make such Provisions out of the many Regulations, for the future Welfare rest of the said accustomed Dues and Rights, and good Government of the Province of for the Encouragement of the Protestant Quebec, the Occasions of which cannot now Religion, and for the Maintenance and Sup- _ be foreseen, nor without much Delay and In-

port of a Protestant Clergy within the said convenience be provided for, without enProvince, as he or they shall, from Time to trusting that Authority for a certain Time, Time, think necessary or expedient... . and upon proper Restrictions to Persons resiAnd be it further enacted by the Authority dent there: aforesaid, That all His Majesty’s Canadian And whereas it is at present inexpedient

76 DOCUMENTS OF AMERICAN HISTORY to call an Assembly; be it therefore enacted point: .. . which Council, so appointed and by the Authority aforesaid, That it shall and nominated, or the major Part thereof, shall

may be lawful for His Majesty, ...and have Power and Authority to make Ordiwith the Advice of the Privy Council, to nances for the Peace, Welfare, and good constitute and appoint a Council for the Government of the said Province with the Affairs of the Province of Quebec, to consist Consent of His Majesty’s Governor, or, in of such Persons resident there, not exceed- his Absence, of the Lieutenant Governor, or ing Twenty-three, nor less than Seventeen, Commander in Chief for the Time being... as His Majesty, . . . shall be pleased to ap-

50. PENNSYLVANIA RESOLUTIONS ON THE BOSTON PORT ACT June 20, 1774 (H. Niles, ed. Principles and Acts of the Revolution, 1822 ed. p. 180) This convention, said to have been attended by and harmony between Great Britain and over eight thousand persons, inaugurated the these colonies, on a constitutional foundation. Revolutionary movement in Conmsyivania. The II. That a large and respectable commit-

committee provided for ese resolutions in- . . .

structed the regular Assembly as to the delegates we be meat appointed for the city and instructions for the Continental Congress. an county ° ladelp 45 to correspond

For general colonial reaction to the Boston Port with the sister colonies and with the several Act see Docs. No. 56-57. On Pennsylvania, see Counties in this province, in order that all C. H. Lincoln, Revolutionary Movement in May unite in promoting and endeavoring to

Pennsylvania; C. J. Stillé, Life and Times of attain the great and valuable ends, men-

John Dickinson, ch. vi. tioned in the foregoing resolution.

IV. That the committee nominated by this Philadelphia, June 1774 meeting shall consult together, and on maAt a very large and respectable meeting of ture deliberation determine, what is the most the freeholders and freemen of the city and proper mode of collecting the sense of this county of Philadelphia, on June 18, 1774. province, and appointing deputies for the Thomas Willing, John Dickinson, chairmen. same, to attend a general congress, and hav-

I. Resolved, That the act of parliament, ing determined thereupon, shall take such for shutting up the port of Boston, is uncon- measures, as by them shall be judged most stitutional, oppressive to the inhabitants of expedient, for procuring this province to be that town, dangerous to the liberties of the represented at the said congress, in the best British colonies, and that therefore, consider- manner that can be devised for promoting ing our brethren, at Boston, as suffering in the public welfare.

the common cause of America. V. That the committee be instructed immeII. That a congress of deputies from the diately to set on foot a subscription for the several colonies, in North America, is the relief of such poor inhabitants of the town most probable and proper mode of procuring of Boston, as may be deprived of their means

relief for our suffering brethren, obtaining of subsistence... . redress of American grievances, securing our VI. That the committee consist of fortyrights and liberties, and re-establishing peace three persons... .

51. NEW YORK CITY RESOLUTIONS ON THE BOSTON PORT ACT July 6, 1774 (H. Niles, ed. Principles and Acts of the Revolution, 1822 ed. p. 174-5) At a numerous meeting of the inhabitants The business of the meeting being fully of the city of New-York, convened in the explained by the chairman, and the dangerfields, by a public advertisement, on Wednes- ous tendency of the numerous and vile arts

day the 6th of July, 1774, Mr. Alexander used by the enemies of America, to divide

M’Dougall, Chairman— and distract her councils, as well as the mis-

RESOLUTIONS OF ALBEMARLE COUNTY 77 representation of the virtuous intentions of who shall represent this colony in the Conthe citizens of this metropolis, in this inter- gress of American deputies, to be held at esting and alarming state of the liberties of Philadelphia, about the first of September America, the following resolutions were twice next, are hereby instructed, empowered, and

read, and the question being separately put directed to engage with a majority of the on each of them, they were passed without principal colonies, to agree for this city,

one dissentient. upon a non-importation from Great Britain, Ist. Resolved, nem. con. That the statute of all goods, wares and merchandizes until

commonly called the Boston port act, is op- the act for blocking up the harbour of Boston pressive to the inhabitants of that town, un- be repealed, and American grievances be reconstitutional in its principles, and dangerous dressed; and also to agree to all such other to the liberties of British Americans; and measures as the Congress shall, in their wisthat, therefore, we consider our brethren at dom, judge advansive of these great objects,

Boston, as now suffering in the common and a general security of the rights and priv-

cause of these colonies. ileges of America.

2d. Resolved. nem. con. That any attack or 6th. Resolved, nem. con. That this meeting attempt to abridge the liberties, or invade will abide by, obey and observe all such resothe constitution, of any of our sister colonies, lutions, determinations and measures, which is immediately an attack upon the liberties the Congress aforesaid shall come into, and and constitution of all the British colonies. direct or recommend to be done, for obtain3d. Resolved. nem. con. That the shutting up ing and securing the important ends menof any of the ports in America, with intent tioned in the foregoing resolution. And that to exact from Americans, a submission to an engagement to this effect be immediately

Parliamentary taxation, or extort a repara- entered into and sent to the Congress, to tion of private injuries, is highly unconsti- evince to them, our readiness and determinatutional, and subversive of the commercial tion to co-operate with our sister colonies,

rights of the inhabitants of this continent. for the relief of our distressed brethren of 4th. Resolved. nem. con, That it is the opin- Boston as well as for the security of our ion of this meeting, that if a principal colony common rights and privileges. . ..

on this continent shall come into a joint reso- 8th. Resolved, nem. con. That a subscription

lution to stop all importation from, and ex- should immediately be set on foot, for the portation to Great Britain, till the Act of relief of such poor inhabitants of Boston as Parliament for blocking up the harbour of are, or may be deprived of the means of subBoston be repealed, the same will prove the sistence, by the operation of the act of parsalvation of North America and her liberties, liament for stopping up the port of Bosand that, on the other hand, if they continue ton... . their exports and imports, there is great rea- 9th. Resolved, nem. con. That the city comson to fear that fraud, power, and the most mittee of correspondence be, and they are odious oppression, will triumph over right, hereby instructed to use their utmost enjustice, social happiness, and freedom:— deavors to carry these resolutions into exe-

therefore, cution. Sth. Resolved, nem. con. That the deputies

52. RESOLUTIONS OF FREEHOLDERS OF ALBEMARLE COUNTY VIRGINIA July 26, 1774 (The Writings of Thomas Jefferson, ed. by P. L. Ford, Vol. I, p. 418 ff.) Pursuant to the instructions of the House of and contain philosophical principles of the relaBurgesses of May 27, 1774—Doc. No. 53—the tions of the colonies to Parliament somewhat in freeholders of Albemarle County held a meeting advance of those generally subscribed to by the and subscribed to the following resolutions. The Americans, See, for an elaboration of Jefferson’s resolutions were drafted by Thomas Jefferson, position, his Summary View of the Rights of

78 DOCUMENTS OF AMERICAN History British America, in Writings, Vol. I. and necessary tools and implements for the handi-

C. F. Mullett, Fundamental Law and the craft arts and manufactures excepted, for a

American Revolution. limited term) and to all exports thereto. At a meeting of the Freeholders of the after the first day of October, which shall be County of Albemarle, assembled in their in the year of our Lord, 1775: and immecollective body, at the Court House of the diately to discontinue all commercial intersaid County, on the 26th of July, 1774: course with every part of the British Empire Resolved, That the inhabitants of the Sev- which shall not in like manner break off their eral States of British America are subject to commerce with Great Britain.

the laws which they adopted at their first It is the opinion of this meeting, that we settlement, and to such others as have been immediately cease to import all commodities since made by their respective Legislatures, from every part of the world, which are sub-

duly constituted and appointed with their jected by the British Parliament to the payown consent. That no other Legislature what- ment of duties in America.

ever can rightly exercise authority over them; It is the opinion of this meeting, that and that these privileges they hold as the these measures should be pursued until a recommon rights of mankind, confirmed by the _ peal be obtained of the Act for blocking up the

political constitutions they have respectively harbour of Boston; of the Acts prohibiting or assumed, and also by several charters of com- restraining internal manufactures in America ;

pact from the Crown. of the Acts imposing on any commodities

Resolved, That these their natural and duties to be paid in America; and of the Act legal rights have in frequent instances been laying restrictions on the American trade: invaded by the Parliament of Great Britain and that on such repeal it will be reasonable and particularly that they were so by an act to grant to our brethren of Great Britain lately passed to take away the trade of the such privileges in commerce as may amply inhabitants of the town of Boston, in the compensate their fraternal assistance, past province of Massachusetts Bay; that all such and future. assumptions of unlawful power are dangerous Resolved, However, that this meeting do to the right of the British empire in general, submit these their opinions to the Convenand should be considered as its common _ tion of Deputies from the several counties cause, and that we will ever be ready to join of this Colony, and appointed to be held at with our fellow-subjects in every part of Wélliamsburg on the first day of August next, the same, in executing all those rightful pow- _ and also to the General Congress of Deputies ers which God has given us, for the re-estab- from the several American States, when and lishment and guaranteeing such their con- wheresoever held; and that they will concur

stitutional rights, when, where, and by’ in these or any other measures which such

whomsoever invaded. Convention or such Congress shall adopt as It is the opinion of this meeting, that the most expedient for the American good; and most eligible means of effecting these pur- we do appoint Thomas Jefferson and John poses, will be to put an immediate stop to Walker our Deputies to act for this county all imports from Great Britain, (cotton, at the said Convention, and instruct them to osnabrigs, striped duffil, medicines, gun- conform themselves to these our Resolutions powder, lead, books and printed papers, the and Opinions.

53. VIRGINIA INSTRUCTIONS TO THE CONTINENTAL CONGRESS August 1, 1774 (H. Niles, ed. Principles and Acts of the Revolution, 1822 ed. p. 201 ff.) On May 27, eighty-one members of the House House of Burgesses to sound out their constitu-

of Burgesses of Virginia had met at the ents on the question of a congress and to meet at Raleigh Tavern in Williamsburg and recom- Williamsburg August 1, 1774. At this mecting the

mended a meeting of delegates from all the following resolutions were drawn up and delecolonies to a continental congress. These mem- gates chosen to the Congress. The convention bers requested their fellow-members of the further declared that it was lawful to meet the

VA. INSTRUCTIONS TO THE CONTINENTAL CONGRESS 79 lawless acts of General Gage with force—a state- | power assumed by the British parliament to ment that was looked upon in England as an act bind America by their statutes, in all cases of rebellion. See, R. Frothingham, Rise of the Re- whatsoever, is unconstitutional, and the public, p. 332 ff.; C. H. Van Tyne, Causes of source of these unhappy differences. the War of Independence, p. 420 fj C. R. Ling- The end of government would be defeated

ley, The Transition in Virginia; H. J. Ecken- by the British i; , ‘ing a DOWEL rode, The Revolution in Virginia; J. M. Leake, y the ritis pariament xercising 2 P

The Virginia Committee System and the Ameri- OVE the lives, the property, and the liberty

can Revolution. of the American subjects; who are not, and from their local circumstances cannot, be

; , , there represented. Of this nature we consider

instr uctions for the deputies appointed to the several acts of parliament for raising a

meet in general CONBTESS ON the part of the revenue in America, for extending the juris-

colony of Vurgunta. diction of the courts of admiralty, for seizing

The unhappy disputes between Great American subjects and transporting them to Britain and her American colonies, .. . Britain to be tried for crimes committed in have compelled them to take the same into America, and the several late oppressive their most serious consideration; and being acts respecting the town of Boston, and provdeprived of their usual and accustomed mode ince of the Massachusetts-Bay. of making known their grievances, have ap- The original constitution of the American pointed us their representatives to consider colonies possessing their assemblies with the what is proper to be done in this dangerous sole right of directing their internal polity, crisis of American affairs. It being our opin- it is absolutely destructive of the end of ion that the united wisdom of North America _ their institution that their legislatures should should be collected in a general congress of be suspended, or prevented, by hasty disall the colonies, we have appointed the hon- solutions, from exercising their legislative orable Peyton Randolph, esquire, Richard powers.

Henry Lee, George Washington, Patrick Wanting the protection of Britain, we

Henry, Richard Bland, Benjamin Harrison, have long acquiesced in their acts of navigaand Edmund Pendleton, esquires, deputies to tion restrictive of our commerce, which we represent this colony in the said congress, to consider as an ample recompense for such

be held at Philadelphia on the first Monday protection; but as those acts derive their

in September next. efficacy from that foundation alone, we have

And that they be the better informed of reason to expect they will be restrained, so our sentiments, touching the conduct we wish aS to produce the reasonable purposes of them to observe on this important occasion, Britain, without being injurious to us. we desire they will express, in the first place, To obtain a redress of those grievances, our faith and true allegiance to his majesty without which the people of America can king George the third, our lawful and rightful neither be safe, free, nor happy, they are sovereign; and that we are determined, with willing to undergo the great inconvenience our lives and fortunes, to support him in the that will be derived to them from stopping legal exercise of all his just rights and pre- all imports whatsoever from Great Britain, rogatives; and however misrepresented, we after the first day of November next, and sincerely approve of a constitutional con- also to cease exporting any commodity whatnexion with Great Britain, and wish most soever, to the same place, after the 10th day

ardently a return of that intercourse of af- of August, 1775. ... fection and commercial connexion that for- The proclamation issued by general Gage, merly united both countries, which can only in the government of the province of the be affected by a removal of those causes of |Massachusetts-Bay, declaring it treason for discontent which have of late unhappily di- the inhabitants of that province to assemble

vided us. themselves to gonsider of their grievances, It cannot admit of a doubt but that British and form associations for their common consubjects in America, are entitled to the same duct on the occasion, and requiring the civil

rights and privileges as their fellow subjects magistrates and officers to apprehend all possess in Britain; and therefore, that the such persons to be tried for their supposed

80 DOCUMENTS OF AMERICAN History offences, is the most alarming process that bound by xo law, nor regard the constitutional

ever appeared in a British government; ... rights of his majesty’s subjects, whenever That, if the said general Gage conceives he they interfere with the plan he has formed is empowered to act in this manner, as the for oppressing the good people of the Massacommander in chief of his majesty’s forces in chusetts-Bay; and therefore, that the exeAmerica, this odzous and illegal proclamation cuting, or attempting to execute such procla-

must be considered as a plain and full dec- mation, will Justify RESISTANCE and laration that this despotic viceroy will be REPRISAL.

54. VIRGINIA NON-IMPORTATION AGREEMENT August 1, 1774 (H. Niles, ed. Principles and Acts of the Revolution, 1822 ed. p. 198 ff.) The Boston Port Act aroused expressions of tion of the present sufferings of our dissympathy everywhere in the American colonies. tressed friends in the town of Boston, we The Boston Committee of Correspondence drew view it with horror, and therefore resolve up a circular letter to the committees in other that we will not, from this day, either imcolonies recommending a suspension of trade port tea of any kind whatever, nor will we the Virginia House of Burgesses passed a series US€ Or suffer, even such of it as Is now at of resolutions, drafted by Jefferson, “to oppose hand, to be used in any of our families. . . . by all just and proper means every injury to Sthly. We do resolve, that unless American American rights.” This led to the dissolution of grievances be redressed before the 10th day the House; subsequent meetings were held in the of August, 1775, we will not, after that day, Raleigh Tavern in Williamsburg. The policy of directly or indirectly, export tobacco or any non-intercourse was recommended by several other article whatever, to Great Britain, nor

with Great Britain; on the receipt of this letter ;

aqopte e€ ontin . . oe .

oer seme orcas pokes ron nee gormally will we sell any such articles as we think can

No. 87; R. Frothingham, Rise of the Republic of & exported to Great Britain with a prosthe United States, ch. viii. On the relief of Bos- pect of gain... . And that this resolution

ton, see Mass. Hist. Soc. Collections, 4th Series, ™ay be the more effectually carried into exeVol IV. cution, we do hereby recommend it to the

inhabitants of this colony to refrain from At a very full meeting of the delegates from the cultivation of tobacco as much as conthe different counties in the colony and do- veniently may be... . minion of Virginia, begun in Williamsburg, $8thly. In order the better to distinguish such

August Ist, 1774... worthy merchants and traders, who are well

Ist. We do hereby resolve and declare that _ wishers to this colony, from those who may we will not either directly or indirectly, after attempt, through motives of self-interest, to the first day of November next, import from _ obstruct our views, we do hereby resolve that Great Britain, any goods, wares, or mer- we will not, after the first day of November chandize, whatever (medicines excepted) nor next, deal with any merchant or trader, who

will we after that day import any British will not sign this association. .. . manufactures, either from the West Indies, 9thly. Resolved. That if any person or per-

or any other place... . sons shall export tobacco, or any other com2dly. We will neither ourselves import, nor modity, to Great Britain, after the 10th day purchase any slave, or slaves, imported by of August, 1775, . .. We shall hold ourany person, after the first day of November _ selves obliged to consider such persons... next, either from Africa, the West Indies, as inimical to the community, and as an ap-

or any other place. prover of American grievances ; and give it

3dly. Considering the article of tea as the as our opinion that the public should be addetestable instrument which laid the founda- vertised of his conduct... .

GALLOWAY’S PLAN OF UNION 81 55. GALLOWAY’S PLAN OF UNION September 28, 1774 (Journals of the Continental Congress, ed. by W. C. Ford, Vol. I, p. 49 ff.) Joseph Galloway, long a distinguished figure in colonies; within and under which govern-

Pennsylvania politics, proposed to solve the ment, each colony shall retain its present problem of colonial home rule by a plan which constitution and powers of regulating and would give to the American colonies something governing its own internal police in all cases approaching dominion status. This plan, at first whatsoever. favorably received, was ultimately defeated by That the said government be a dministered

athesingle vote, and subsequently expunged from . . minutes of the Congress. John Adams ob- Dy a President General, to be appointed by served in his Diary: “Among all the difficulties the King, and a grand council to be chosen in the way of effective and united action in 1774. by the Representatives of the people of the

...no more alarming one happened than the’ several colonies in their respective assemplan of a proposed union between Great Britain blies, once in every three years.

and the Colonies presented, on the 28th of Sep- That the several assemblies shall choose

tember by Mr. Joseph ea O ons for the grand:council in the folof John Adams, Vol. II,wns p. members .) On the histor of the Plan see Galloway, Historical and Politi- lowing proportions, VI es

cal Reflections on the Rise and Progress of the Who shall meet at the city of . for American Revolution. See also, M. C. Tyler, the first time, being called by the President Literary History of the American Revolution, General as soon as conveniently may be after Vol. I. p. 369 ff.; W. H. Seibert, The Loyalists of | his appointment. That there shall be a new Pennsylvania; C. H. Lincoln, Revolutionary election of members for the grand council

Movement in Pennsyivania. every three years; and on the death, re-

moval, or resignation of any member, his Resolved, That this Congress will apply to place shall be supplied by a new choice at the

His Majesty for a redress of grievances, next sitting of Assembly of the colony he under which his faithful subjects in America represented. labour, and assure him that the colonies hold That the grand council shall meet once in in abhorrence the idea of being considered every year 1f they shall think it necessary, independent communities on the British Gov- and oftener, if occasions shall require, at ernment, and most ardently desire the estab- such time and place as they shall adjourn to lishment of a political union, not only among at the last preceding meeting; or as they shall themselves, but with the mother state, upon be called to meet at, by the President General those principles of safety and freedom which on any emergency. are essential in the constitution of all free gov- That the grand council shall have power to ernments, and particularly that of the British choose their Speaker, and shall hold and exLegislature. And as the colonies from their ercise all the like rights, liberties, and privIccal circumstances cannot be represented in _ ileges as are held and exercised by and in the

the Parliament of Great Britain, they will House of Commons of Great Britain. humbly propose to His Majesty, and his That the President General shall hold his two Houses of Parliament, the following plan, _ office during the pleasure of the King, and under which the strength of the whole Empire his assent shall be requisite to all Acts of the may be drawn together on any emergency; grand council, and it shall be his office and the interests of both countries advanced; and duty to cause them to be carried into executhe rights and liberties of America secured. tion.

A Plan of a proposed Union between Great That the President General, by and with

Britain and the Colonies. the advice and consent of the grand council,

That a British and American legislature, hold and exercise all the legislative rights, for regulating the administration of the gen- powers, and authorities, necessary for regueral affairs of America, be proposed and es- lating and administering all the general po-

tablished in America, including all the said lice and affairs of the colonies, in which

82 DOCUMENTS OF AMERICAN HistToRy Great Britain and the colonies, or any of Britain, or in the said grand council; and them, the colonies in general, or more than being prepared, transmitted to the other one colony, are in any manner concerned, as__ for their approbation or dissent; and that

well civil and criminal as commercial. the assent of both shall be requisite to That the said President General and grand the validity of all such general acts and statcouncil, be an inferior and distinct branch of utes.

the British legislature, united and _incor- That in time of war, all bills for granting porated with it for the aforesaid general pur- aides to the Crown, prepared by the grand , poses; and that any of the said general council and approved by the President Genregulations may originate, and be formed and eral, shall be valid and passed into a law, digested, either in the Parliament of Great without the assent of the British Parliament.

56. DECLARATION AND RESOLVES OF THE FIRST CONTINENTAL CONGRESS October 14, 1774 (Journals of the Continental Congress, ed. by W. C. Ford, Vol. I, p. 63 ff.) The passage of the Intolerable Acts brought others, under various pretences, but in fact widespread demands for a congress of all the for the purpose of raising a revenue, hath American colonies. On June 17, 1774 Samuel imposed rates and duties payable in these Adams submitted to the Massachusetts House, colonies established a board of commission-

then assembled at Salem, a resolution that .* ers with unconstitutional powers, and exmeeting of committees from the several colonies oe ee ; on this continent is highly expedient and neces- tended the jurisdiction of courts of Admisary to consult upon the present state of the ‘[alty not only for collecting the said duties, colonies ...and to deliberate and determine but for the trial of causes merely arising upon wise and proper measures to be by them within the body of a county. recommended to all the colonies for the recovery And whereas, in consequence of other and establishment of just rights and liberties, statutes, judges who before held only estates civil and religious, and the restoration of union § a+ will in their offices, have been made de-

and harmony between Great Britain and the pendent on the Crown alone for their salcolonies,” a nd that such a meeting convene in aries, and standing armies kept in times of Philadelphia September 1. The resolution was peace. And it has lately been resolved in adopted, and Samuel Adams, John Adams, Parl; P f Robert T. Paine, James Bowdoin and James Parliament, that by force of a statute made Cushing were appointed delegates from Massa- 1m the thirty-fifth year of the reign of king chusetts. Most of the other colonies responded Henry the Eighth, colonists may be transfavorably to this proposal, and on September 5, ported to England, and tried there upon acdelegates from all the colonies except North cusations for treasons and misprisions, or Carolina and Georgia assembled at Philadelphia; ¢oncealments of treasons committed in the when the North Carolina delegation arrived, a colonies; and by a late statute, such trials have week later, there were some hilty-five delegates }o6n directed in cases therein mentioned.

n tne convention. ne pest and Diary of John And whereas, in the last session of ParliaAdams, Works, Vol. II. See also, E. C. Burnett, ment, three statutes were made... [the ed. Letters of Members of the Continental Con- Boston Port Act, the Massachusetts Govern-

gress, Vol. 1; R. Frothingham, Rise of the Re- ment Act, the Administration of Justice public of the United States, chs, viiiix; G. E. Act], and another statute was then made [the Howard, Preliminaries of the Revolution, ch. Quebec Act] ... All which statutes are imxvi; C. H. Van Tyne, Causes of the War of In- jyolitic, unjust, and cruel, as well as uncon-

dependence, chs. xvi-xvil. stitutional, and most dangerous and destrucWhereas, since the close of the last war, tive of American rights. the British parliament, claiming a power of And whereas, Assemblies have been freright to bind the people of America by statute quently dissolved, contrary to the rights of in all cases whatsoever, hath, in some acts the people, when they attempted to deliberate expressly imposed taxes on them, and in on grievances; and their dutiful, humble,

DECLARATION AND RESOLVES OF FIRST CONGRESS 83 loyal, & reasonable petitions to the crown for cumstances, cannot properly be represented

redress, have been repeatedly treated with in the British parliament, they are entitled contempt, by His Majesty’s ministers of toa free and exclusive power of legislation

state: in their several provincial legislatures, where

The good people of the several Colonies of their right of representation can alone be New-hampshire, Massachusetts-bay, Rhode- preserved, in all cases of taxation and interisland and Providence plantations, Connecti- nal polity, subject only to the negative of cut, New-York, New-Jersey, Pennsylvania, their sovereign, in such manner as has been Newcastle Kent and Sussex on Delaware, heretofore used and accustomed. But, from Maryland, Virginia, North-Carolina, and the necessity of the case, and a regard to the South-Carolina, justly alarmed at these ar- mutual interest of both countries, we cheerbitrary proceedings of parliament and ad- fully consent to the Operation of such acts ministration, have severally elected, consti- of the British parliament, as are bona fide tuted, and appointed deputies to meet, and restrained to the regulation of our external sit in general Congress, in the city of Phila- commerce, for the purpose of securing the delphia, in order to obtain such establish- commercial advantages of the whole empire ment, as that their religion, laws, and liber- to the mother country, and the commercial

ties, may not be subverted: benefits of its respective members excluding

Whereupon the deputies so appointed be- every idea of taxation, internal or external, ing now assembled, in a full and free represen- for raising a revenue on the sub jects in Amer-

tation of these Colonies, taking into their ica without their consent.

most serious consideration the best means of 5. That the respective colonies are entitled attaining the ends aforesaid, do in the first to the common law of England, and more place, as Englishmen their ancestors in like especially to the great and inestimable priv-

cases have usually done, for asserting and ilege of being tried by their peers of the | vindicating their rights and liberties, declare, vicinage, according to the course of that law. That the inhabitants of the English Colo- 6. That they are entitled to the bencfit of

. nies in North America, by the immutable such of the English statutes, as existed at the laws of nature, the principles of the English time of their colonization; and which they constitution, and the several charters or com- have, by experience, respectively found to be

, pacts, have the following Rights: applicable to their several local and other

Resolved, N. C. D. circumstances.

1. That they are entitled to life, liberty, 7. That these, his majesty’s colonies, are

and property, & they have never ceded to any __ likewise entitled to all the immunities and sovereign power whatever, a right to dispose privileges granted and confirmed to them by

of either without their consent. royal charters, or secured by their several

2. That our ancestors, who first settled codes of provincial laws. these colonies, were at the time of their emi- 8. That they have a right peaceably to asgration from the mother country, entitled to semble, consider of their grievances, and peall the rights, liberties, and immunities of tition the King; and that all prosecutions, free and natural-born subjects within the prohibitory proclamations, and commitments

realm of England. for the same, are illegal.

3. That by such emigration they by no 9. That the keeping a Standing army in

means forfeited, surrendered, or lost any of these colonies, in times of peace, without the

those rights, but that they were, and their consent of the legislature of that colony in descendants now are entitled to the exercise which such army is kept, is against law. and enjoyment of all such of them, as their 10. It 1s indispensably necessary to good local and other circumstances enable them to government, and rendered essential by the

exercise and enjoy. English constitution, that the constituent 4. That the foundation of English liberty, branches of the legislature be independent of and of all free government, is a right in the each other; that, therefore, the exercise of people to participate in their legislative coun- legislative power in several colonies, by a cil: and as the English colonists are not rep- council appointed during pleasure, by the resented, and from their local and other cir- crown, is unconstitutional, dangerous, and

84 DOCUMENTS OF AMERICAN HISTORY destructive to the freedom of American legis- nage, by authorizing the trial of any person

lation. charged with the committing any offense All and each of which the aforesaid depu- described in the said act, out of the realm, ties, in behalf of themselves, and their con- to be indicted and tried for the same in any stituents, do claim, demand, and insist on, as__ shire or county within the realm. their indubitable rights and liberties; which Also the three acts passed in the last sescannot be legally taken. from them, altered sion of parliament, for stopping the port and or abridged by any power whatever, without blocking up the harbour of Boston, for altertheir own consent, by their representatives in ing the charter & government of the Massa-

their several provincial legislatures. chusetts-bay, and that which is entitled “An In the course of our inquiry, we find many Act for the better administration of Jusinfringments and violations of the foregoing tice,” &c. rights, which, from an ardent desire that har- Also the act passed the same session for mony and mutual intercourse of affection and establishing the Roman Catholick Religion interest may be restored, we pass over forthe in the province of Quebec, abolishing the present, and proceed to state such acts and equitable system of English laws, and erectmeasures as have been adopted since the last ing a tyranny there, to the great danger, war, which demonstrate a system formed to from so great a dissimilarity of Religion, law,.

enslave America. and government, of the neighbouring British Resolved, That the following acts of Par- colonies... . liament are infringements and violations of Also the act passed the same session for the rights of the colonists; and that the re- the better providing suitable quarters for

peal of them is essentially necessary, in order officers and soldiers in his Majesty’s service

to restore harmony between Great Britain in North America.

and the American colonies, . . . viz.: Also, that the keeping a standing army in The several Acts of 4 Geo. 3, ch. 15 & ch. several of these colonies, in time of peace, 34; 5 Geo. 3, ch. 25; 6 Geo. 3, ch. 52; 7 Geo. without the consent of the legislature of 3, ch. 41 & 46; 8 Geo. 3, ch. 22; which im- that colony in which the army is kept, is

pose duties for the purpose of raising a against law. revenue in America, extend the powers of To these grievous acts and measures the admiralty courts beyond their ancient Americans cannot submit, but in hopes that limits, deprive the American subject of trial their fellow subjects in Great-Britain will, by jury, authorize the judges’ certificate to on a revision of them, restore us to that indemnify the prosecutor from damages state in which both countries found happithat he might otherwise be liable to, requiring ness and prosperity, we have for the present oppressive security from a claimant of ships only resolved to pursue the following peaceand goods seized before he shall be allowed able measures: Ist. To enter into a nonto defend his property; and are subversive of importation, mnon-consumption, and _ non-

American rights. exportation agreement or association. 2. To Also the 12 Geo. 3, ch. 24, entitled “An act prepare an address to the people of Greatfor the better preserving his Majesty’s dock- Britain, and a memorial to the inhabitants of

yards, magazines, ships, ammunition, and British America, & 3. To prepare a loyal stores,’ which declares a new offense in address to his Majesty, agreeable to resoluAmerica, and deprives the American subject tions already entered into. of a constitutional trial by jury of the vici-

57. THE ASSOCIATION | October 20, 1774

(Journals of the Continental Congress, ed. by W. C. Ford, Vol. I, p. 75 ff.) On September 27 the Continental Congress resolution into effect. The committee reported voted non-intercourse with Great Britain, and October 12, and the report was adopted on three days later a committee was appointed the 18 and signed on the 20 October. “The charged with drafting a plan to carry this signature of the Association,” says Hildreth,

Tue ASSOCIATION 85 “may be considered as the commencement of try; thus, by the influence of civil principles the American Union,” Of particular interest and ancient prejudices, to dispose the inhabare the provisions prohibiting the importation jtants to act with hostility against the free of slaves, and providing for committees of COr- Protestant colonies, whenever a wicked minrespondence to enforce the rules of the Associa- istry shall chuse so to direct them.

tion. Several of the Colonies had already adopted T btai dre f these 7

non-importation agreements. The effect of the 0 obtain redress ° ese grievances,

non-intercourse resolutions can be read in the Which threaten destruction to the lives, Iibpetitions of English merchants to Parliament; rly, and property of his majesty’s subjects, see, for example, Doc. No. 58. On the Association, in North-America, we are of opinion, that a

see R. Frothingham. Rise of the Republic, p. non-importation, non-consumption, and non372 ff.; A. W. Small, The Beginnings of Ameri- exportation agreement, faithfully adhered to, can Nationality ; G. E. Howard, Preliminaries — wj]] prove the most specdy, effectual, and

of the Revolution, ch. xvi. peaceable measure: And, therefore, we do,

We, his majesty’s most loyal subjects, the for ourselves, and the inhabitants of the sevdelegates of the several colonies of New- eral colonies, whom we represent, firmly agree Hampshire, Massachusetts-Bay, Rhode-Is- and associate, under the sacred ties of virtue, land, Connecticut, New-York, New-Jersey, honour and love of our country, as follows:

Pennsylvania, the three lower counties of 1. That from and after the first day of DeNewcastle, Kent and Sussex on Delaware, cember next, we will not import, into British Maryland, Virginia, North-Carolina, and America, from Great-Britain or Ireland, any South-Carolina, deputed to represent them goods, wares, or merchandize whatsoever, or in a continental Congress, held in the city of | from any other place, any such goods, wares, Philadelphia, on the 5th day of September, or merchandise, as shall have been exported 1774, avowing our allegiance to his majesty, from Great-Britain or Ireland; nor will we, our affection and regard for our fellow-sub- after that day, import any East-India tea jects in Great-Britain and elsewhere, affected from any part of the world; nor any mowith the deepest anxiety, and most alarming lasses, syrups, paneles, coffee, or pimento, apprehensions, at those grievances and dis- from the British plantations or from Do-

tresses, with which his Majesty's American minica; nor wines from Madeira, or the subjects are oppressed; and having taken Western Islands; nor foreign indigo. under our most serious deliberation, the state 2. We will neither import nor purchase, of the whole continent, find, that the present any slave imported after the first day of Deunhappy situation of our affairs is occasioned cember next; after which time, we will by a ruinous system of colony administration, wholly discontinue the slave trade, and will adopted by the British ministry about the neither be concerned in it ourselves, nor will year 1763, evidently calculated for enslaving we hire our vessels, nor sell our commodities these colonies, and, with them, the British or manufactures to those who are concerned Empire. In prosecution of which system, va- in it.

rious acts of parliament have been passed, 3. AS a non-consumption agreement, for raising a revenue in America, for depriv- strictly adhered to, will be an effectual seing the American subjects, in many instances, curity for the observation of the non-impor-

of the constitutional trial by jury, exposing tation, we, as above, solemnly agree and their lives to danger, by directing a new and associate, that from this day, we will not pur-

illegal trial beyond the seas, for crimes chase or use any tea, imported on account of alleged to have been committed in America: the East-India company, or any on which a And in prosecution of the same system, sev- duty hath been or shall be paid; and from eral late, cruel, and oppressive acts have been and after the first day of March next, we passed, respecting the town of Boston and will not purchase or use any East-India tea the Massachusetts-Bay, and also an act for whatever; nor will we, nor shall any person extending the province of Quebec, so as to for or under us, purchase or use any of those border on the western frontiers of these goods, wares, or merchandize, we have agreed colonies, establishing an arbitrary government not to import, which we shall know, or have

therein, and discouraging the settlement of cause to suspect, were imported after the British subjects in that wide extended coun- first day of December, except such as come

86 DOCUMENTS OF AMERICAN HISTORY under the rules and directions of the tenth plays, and other expensive diversions and

article hereafter mentioned. entertainments; and on the death of any 4. ‘The earnest desire we have not to injure relation or friend, none of us, or any of our our fellow-subjects in Great-Britain, Ireland, families will go into any further mourningor the West-Indies, induces us to suspend a dress, than a black crape or ribbon on the non-exportation, until the tenth day of Sep- arm or hat, for gentlemen, and a black ribbon tember, 1775; at which time, if the said acts and necklace for ladies, and we will discon-

and parts of acts of the British parliament tinue the giving of gloves and scarves at herein after mentioned, are not repealed, we funerals.

will not directly or indirectly, export any 9. Such as are venders of goods or mermerchandize or commodity whatsoever to chandize will not take advantage of the Great-Britain, Ireland, or the West-Indies, scarcity of goods, that may be occasioned

except rice to Europe. by this association, but will sell the same 5. Such as are merchants, and use the Brit- at the rates we have been respectively acish and Irish trade, will give orders, as soon customed to do, for twelve months last past. as possible, to their factors, agents and cor- —And if any vender of goods or merchandize

respondents, in Great-Britain and Ireland, shall sell such goods on higher terms, or not to ship any goods to them, on any pre- _ shall, in any manner, or by any device whattence whatsoever, as they cannot be received _ soever, violate or depart from this agreement, in America; and if any merchant, residing in no person ought, nor will any of us deal with

Great-Britain or Ireland, shall directly or any such person, or his or her factor or indirectly ship any goods, wares or merchan- agent, at any time thereafter, for any comdize, for America, in order to break the said modity whatever. non-importation agreement, or in any man- 10. In case any merchant, trader, or other ner contravene the same, on such unworthy _ person, shall import any goods or merchanconduct being well attested, it ought to be dize, after the first day of December, and made public; and, on the same being so done, before the first day of February next, the we will not, from thenceforth, have any com- same ought forthwith, at the election of the mercial connexion with such merchant. owner, to be either re-shipped or delivered up 6. That such as are owners of vessels will to the committee of the country or town, give positive orders to their captains, or mas- wherein they shall be imported, to be stored ters, not to receive on board their vessels any at the risque of the importer, until the nongoods prohibited by the said non-importation importation agreement shall cease, or be sold agreement, on pain of immediate dismission under the direction of the committee afore-

from their service. said; and in the last-mentioned case, the

7. We will use our utmost endeavours to owner or owners of such goods shall be reimprove the breed of sheep, and increase imbursed out of the sales, the first cost and their number to the greatest extent; and to charges, the profit, if any, to be applied that end, we will kill them as seldom as may _ towards relieving and employing such poor

be, especially those of the most profitable inhabitants of the town of Boston, as are kind; nor will we export any to the West- immediate sufferers by the Boston port-bill; Indies or elsewhere; and those of us, who are’ and a particular account of all goods so reor may become overstocked with, or can con-__ turned, stored, or sold, to be inserted in the

veniently spare any sheep, will dispose of public papers; and if any goods or merchanthem to our neighbours, especially to the dizes shall be imported after the said first day

poorer sort, on moderate terms. of February, the same ought forthwith to be

8. We will, in our several stations, eu- sent back again, without breaking any of the courage frugality, oeconomy, and industry, packages thereof. and promote agriculture, arts and the manu- 11. That a committee be chosen in every

factures of this country, especially that of county, city, and town, by those who are wool; and will discountenance and discourage qualified to vote for representatives in the every species of extravagance and dissipa- legislature, whose business it shall be attention, especially all horse-racing, and all kinds tively to observe the conduct of all persons of gaming, cock fighting, exhibitions of shews, touching this association; and when it shall

PETITION OF LONDON MERCHANTS 87 be made to appear, to the satisfaction of a ported into America, and extend the powers majority of any such committee, that any of the admiralty courts beyond their ancient person within the limits of their appointment limits, deprive the American subject of trial has violated this association, that such by jury, authorize the judge’s certificate to majority do forthwith cause the truth of the indemnify the prosecutor from damages, that case to be published in the. gazette; to the he might otherwise be liable to from a trial end, that all such foes to the rights of British- by his peers, require oppressive security from America may be publicly known, and uni- a claimant of ships or goods seized, before he versally contemned as the enemies of Ameri- shall be allowed to defend his property, are can liberty; and thenceforth we respectively repealed—And until that part of the act of

will break off all dealings with him or her. the 12 G. 3. ch. 24, entitled “An act for 12. That the committee of correspondence, the better securing his majesty’s dock-yards, in the respective colonies, do frequently in- magazines, ships, ammunition, and stores,” spect the entries of their customhouses, and by which any persons charged with commitinform each other, from time to time, of the ting any of the offences therein described, in true state thereof, and of every other ma- America, may be tried in any shire or county terial circumstance that may occur relative to within the realm, is repealed—and until the

this association. four acts, passed the last session of parlia13. That all manufactures of this country ment, viz. that for stopping the port and be sold at reasonable prices, so that no blocking up the harbour of Boston—that

undue advantage be taken of a future scarcity for altering the charter and government of

of goods. the Massachusetts-Bay—and that which is 14. And we do further agree and resolve, entitled ‘‘An act for the better administration that we will have no trade, commerce, deal- of justice, &c.”—and that “for extending the ings or intercourse whatsoever, with any limits of Quebec, &c.” are repealed. And we colony or province, in North-America, which recommend it to the provincial conventions,

shall not accede to, or which shall hereafter and to the committees in the respective violate this association, but will hold them colonies, to establish such farther regulations as unworthy of the rights of freemen, and as they may think proper, for carrying into as inimical to the liberties of their country. execution this association. And we do solemnly bind ourselves and The foregoing association being determined our constituents, under the ties aforesaid, to upon by the Congress, was ordered to be adhere to this association, until such parts subscribed by the several members thereof; of the several acts of parliament passed since and thereupon, we have hereunto set our the close of the last war, as impose or con- respective names accordingly. tinue duties on tea, wine, molasses, syrups, In CONGRESS, PHILADELPHIA, October paneles, coffee, sugar, pimento, indigo, for- 20, 1774. eign paper, glass, and painters’ colours, im- Signed, PEYTON RANDOLPH, President.

58. PETITION OF LONDON MERCHANTS FOR RECONCILIATION WITH AMERICA January 23, 1775 (The Parliamentary History of England, Vol. XVIII, 1774-1777, p. 168 ff.) Exports from England to the American colonies see, D. M. Clark, British Opinion and _ the dropped from some two and one half million American Revolution, ch. iii; on debts, sec, pounds in 1774 to about one-tenth that sum I. Harrell, Loyalism in Virginia.

in 1775. Not only did the success of the Associa- ,

tion thus threaten English merchants with ruin, . Mr. Alderman Hayley said he had a petibut the imminent danger of hostilities with the ‘ON from the merchants of the city of Loncolonies raised serious doubts as to the ability don concerned in the commerce to North of English merchants to collect the large debts America, to that honourable House, and deowed them by American planters. On trade, sired leave to present the same, which being

88 DOCUMENTS OF AMERICAN HISTORY given, it was brought up and read, setting press declaration of the legislature, that the

forth; continuance of the said Act would be attended

“That the petitioners are all essentially with many inconveniences, and might be interested in the trade to North America, productive of consequences greatly detrieither as exporters and importers, or as mental to the commercial interests of these venders of British and foreign goods for kingdoms; upon which repeal, the trade to exportation to that country; and that the the British colonies immediately resumed petitioners have exported, or sold for ex- its former flourishing state; and that in portation, to the British colonies in North the year 1767 an Act passed for granting America, very large quantities of the manu- certain duties in the British colonies and facture of Great Britain and Ireland, and in plantations in America, which imposed cerparticular the staple articles of woollen, iron, tain duties, to be paid in America, on tea, and linen, also those of cotton, silk, leather, glass, red and white lead, painters’ colours, pewter, tin, copper, and brass, with almost paper, paste-board, mill-board, and _ scaleevery British manufacture; ...and that board, when the commerce with the colonies the petitioners have likewise exported, or was again interrupted; and that in the year sold for exportation, great quantities of the 1770, such parts of the said Act as imposed various species of goods imported into this duties on glass, red and white lead, painters’ kingdom from the East-Indies, part of which colours, paper, paste-board, mill-board, and

receive additional manufacture in Great scale-board, were repealed, when the trade Britain; and that the petitioners receive re- to America soon revived, except in the article turns from North America to this kingdom of tea, on which a duty was continued, to directly, viz. pig and bar iron, timber, staves, be demanded on its importation into America,

naval stores, tobacco, rice, indigo, deer, and whereby that branch of our commerce was other skins, beaver and furs, train oil, whale- nearly lost; and that, in the year 1773, an Act bone, bees wax, pot and pearl ashes, drugs and _ passed, to allow a drawback of the duties of

dyeing woods, with some bullion, and also customs on the exportation of tea to his wheat flour, Indian corn and salted provisions, | Majesty’s colonies or plantations in America,

when, on account of scarcity in Great Britain, and to empower the commissioners of the those articles are permitted to be imported; Treasury to grant licenses to the East India

.. . and that the petitioners have great rea- Company, to export tea, duty free; and by son to believe, from the best informations the operation of those and other laws, the they can obtain, that on the balance of this minds of his Majesty’s subjects in the British extensive commerce, there is now due from colonies have been greatly disquieted, a total

the colonies in North America, to the said stop is now put to the export trade with the city only, 2,000,000 1. sterling, and upwards; greatest and most important part of North and that, by the direct commerce with the America, the public revenue is threatened colonies, and the circuitous trade thereon with a large and fatal diminution, the petidepending, some thousands of ships and ves-__tioners with grievous distress, and thousands

sels are employed, and many thousands of of industrious artificers and manufacturers seamen are bred and maintained, thereby in- with utter ruin; under these alarming circumcreasing the naval strength and power of _ stances, the petitioners receive no small com-

Great Britain; and that, in the year 1765, fort, from a persuasion that the representathere was a great stagnation of the com-_ tives of the people, newly delegated to the merce between Great Britain and her colonies, most important of all trusts, will take the

in consequence of an Act for granting and whole of these weighty matters into their applying certain stamp duties, and other most serious consideration; and therefore duties, in the British colonies and plantations praying the House, that they will enter into

in America, by which the merchants trad- a full and immediate examination of that ing to North America, and the artificers em- system of commercial policy, which _was ployed in the various manufactures con- formerly adopted, and uniformly maintained, sumed in those countries, were subjected to to the happiness and advantage of both many hardships; and that, in the following countries, and will apply such healing remeyear, the said Act was repealed, under an ex- dies as can alone restore and establish the

THe BATTLE OF LEXINGTON 89 commerce between Great Britain and her selves, or agents, in support of the said colonies on a permanent foundation; and petition.” that the petitioners may be heard by them-

59. THE BATTLE OF LEXINGTON 1775

The following two extracts present the official their way to Concord, marched into the said American and English versions of.the hostilities town of Lexington, and the said company, on at Lexington, April 19, 1775. It is, apparently, their approach, began to disperse—that, notimpossible to determine at this time who fired withstanding this, the regulars rushed on with

the first shot at Lexington, but see A. C. Mc . vyese

, firingch. oni;said Lexington company, States?History, A. French, The Day of & | ; 8 whereb pany, evy Laughlin, et.al. eds. Source Problems in United great violence and first began hostilities, by

Concord and Lexington; A. French, General they killed eight, and wounded several others Gage’s Informers, chs. i-iii; H. Murdock, Con- —that the regulars continued their fire, until

cord Fight. those of said company, who were neither killed nor wounded, had made their escape— 1, AMERICAN ACCOUNT OF THE BATTLE OF that colonel Smith, with the detachment then

Lexincton: Account by the Provincial marched to Concord, where a number of Congress at Watertown, Massachusetts provincials were again fired on by the troops,

April 26, 1775 two of them killed and several wounded,

(H. Niles, ed. Principles and Acts of the before the provincials fired on them, and Revolution, 1822 ed. p. 434-5.) provincials were again fired on by the troops, Watertown, April 26th, 1775. produced an engagement that lasted through In provincial congress of Massachusetts, to the day, in which many of the provincials and

the inhabitants of Great Britain. more of the regular troops were killed and

Friends and fellow subjects—Hostilities wounded. are at length commenced in this colony by To give a particular account of the ravages the troops under the command of general of the troops, as they retreated from ConGage, and it being of the greatest importance, cord to Charlestown, would be very difficult, that an early, true, and authentic account of if not impracticable; let it suffice to say, that

this inhuman proceeding should be known to a great number of the houses on the road you, the congress of this colony have trans- were plundered and rendered unfit for use, mitted the same, and from want of a session several were burnt, women in child-bed were of the hon. continental congress, think it driven by the soldiery naked into the streets, proper to address you on the alarming oc- old men peaceably in their houses were shot

casion. dead, and such scenes exhibited as would dis-

By the clearest depositions relative to this grace the annals of the most uncivilized transaction, it will appear that on the night nation. preceding the nineteenth of April instant, These, brethren, are marks of ministerial a body of the king’s troops, under the com- vengeance against this colony, for refusing, mand of colonel Smith, were secretly landed with her sister colonies, a submission to at Cambridge, with an apparent design to slavery; but they have not yet detached us take or destroy the military and other stores, from our royal sovereign. We profess to be provided for the defence of this colony, and his loyal and dutiful subjects, and so hardly deposited at Concord—that some inhabitants dealt with as we have been, are still ready, of the colony, on the night aforesaid, whilst with our lives and fortunes, to defend his travelling peaceably on the road, between person, family, crown and dignity. Never-

Boston and Concord, were seized and greatly theless, to the persecution and tyranny of his abused by armed men, who appeared to be’ cruel ministry we will not tamely submit— officers of general Gage’s army; that the town appealing to Heaven for the justice of our

of Lexington, by these means, was alarmed, cause, we determine to die or be free... .

and a company of the inhabitants mustered By order,

on the occasion—that the regular troops on Joseph Warren, President.

p0.

90 DOCUMENTS OF AMERICAN HISTORY 2 ENGLISH ACCOUNT OF THE BATTLE OF the meason of their being thus assembled, LEXINGTON: Report of Lieutenant-Colonel and, if not satisfactory, to have secured their

, arms; but theyGage in confusion went off, prinSmith to Governor .

April 22, 1775 cipally off, to theand left, three only one offour themmore fired or . . before he went or (Mass. Historical Society, Proceedings, 1876, : F i] d fired { behind it p. 350 ff.) Jumped over a wall and fired from behind i

among the soldiers; on which the troops re-

SIR,—In obedience to your Excellency’s turned it, and killed several of them. They

commands, I marched on the evening of the likewise fired on the soldiers from the Meet18th inst. with the corps of grenadiers and ing and dwelling-houses. . . . Rather earlier light infantry for Concord, to execute your than this, on the road, a countryman from Excellency’s orders with respect to destroy- behind a wall had snapped his piece at Lieuing all ammunition, artillery, tents, &c, col- tenants Adair and Sutherland, but it flashed

lected there, which was effected, having and did not go off. After this we saw some knocked off the trunnions of three pieces of in the woods, but marched on to Concord iron ordnance, some new gun-carriages, a without anything further happening. While great number of carriage-wheels burnt, a con- at Concord we saw vast numbers assembling

siderable quantity of flour, some gun-powder in many parts: at one of the bridges they and musquet-balls, with other small articles marched down, with a very considerable thrown into the river. Notwithstanding we body, on the light infantry posted there. On

marched with the utmost expedition and their coming pretty near, one of our men secrecy, we found the country had intelligence __ fired on them, which they returned; on which

or strong suspicion of our coming, and fired an action ensued, and some few were killed many signal guns, and rung the alarm bells and wounded. In this affair, it appears that, repeatedly; and were informed, when at Con- after the bridge was quitted, they scalped cord, that some cannon had been taken out and otherwise ill-treated one or two of the

of the town that day, that others, with some men who were either killed or severely stores, had been carried three days before, wounded. ... On our leaving Concord to which prevented our having an opportunity return to Boston, they began to fire on us of destroying so much as might have been from behind the walls, ditches, trees, &c.,

expected at our first setting off. which, as we marched, increased to a very

I think it proper to observe, that when I_ great degree, and continued without inter-

had got some miles on the march from mission of five minutes altogether, for, I Boston, I detached six light infantry com- believe, upwards of eighteen miles; so that panies to march with all expedition to seize I can’t think but it must have been a prethe two bridges on different roads beyond concerted scheme in them, to attack the Concord. On these companies’ arrival at Lex- King’s troops the first favorable opportunity

ington, I understand, from the report of that offered, otherwise, I think they could Major Pitcairn, who was with them, and from _ not, in so short a time from our marching many officers, that they found on a green out, have raised such a numerous body, and close to the road a body of the country people _for so great a space of ground. Notwithstanddrawn up in military order, with arms and _ ing the enemy’s numbers, they did not make

accoutrements, and, as appeared after, one gallant attempt during so long an action, loaded; and that they had posted some men though our men were so very much fatigued, in a dwelling and Meeting-house. Our troops but kept under cover. advanced towards them, without any inten- I have the honor, &c., tion of injuring them, further than to inquire F, Smith, Lieutenant-Colonel 10th Foot.

ADDRESS OF THE CONTINENTAL CONGRESS 91 60. ADDRESS OF THE CONTINENTAL CONGRESS TO THE INHABITANTS OF CANADA May 29, 1775 (Journals of the Continental Congress, ed. by W. C. Ford, Vol. II, p. 68 ff.) One of the first acts of the second Continental will not, by tamely bearing the yoke, suffer Congress which met May 10, 1775, was an Ap-_ that pity to be supplanted by contempt. peal to the inhabitants of Canada. The appeal When hardy attempts are made to deprive was drafted by John Jay. Americans continued, wen of rights, bestowed by the almighty, through the early years of the war, to hug to when avenues are cut thro’ the most solemn to bring Canada into the American Union. In compacts for the admission of despotism, the fall of 1775 the appeal of Congress was re- When the plighted faith of government ceases enforced by a military expedition under Mont- to give security to loyal and dutiful subjects, gomery and Arnold which was disastrously de- and when the insidious stratagems and feated. Nothing daunted, Congress in March manoeuvres of peace become more terrible 1776 appointed three commissioners,—Franklin, than the sanguinary operations of war, it is Samuel Chase, and Charles Carroll—to proceed high time for them to assert those rights, to Canada and persuade the. Canadians to join and, with honest indignation, oppose the the Americans. Even alter the failure of this torrent of oppression rushing in upon them.

themselves the delusion that Canadians wished =r

move, Congress provided, in the Articles of By the introduction of vour present form Confederation, for the admission of Canada. y y P See J. H. Smith, Our Struggle for the Fourteenth of government, or rather present form of

Colony, Vol. I. tyranny, youdren and your wives and your chilare made slaves. You have nothing that To the oppressed Inhabitants of Canada. you can call your own, and all the fruits of FRIENDS AND COUNTRYMEN, your labour and industry may be taken from Alarmed by the designs of an arbitrary you, whenever an avaritious governor and a Ministry, to extirpate the Rights and liber- rapacious council may incline to demand ties of all America, a sense of common’ them. You are liable by their edicts to be danger conspired with the dictates of human- transported into foreign countries to fight ity, in urging us to call your attention, by our Battles in which you have no interest, and late address, to this very important object. to spill your blood in conflicts from which Since the conclusion of the late war, we neither honor nor emolument can be derived: have been happy in considering you as fellow- Nay, the enjoyment of your very religion, subjects, and from the commencement of the in the present system, depends on a legislapresent plan for subjugating the continent, ture in which you have no share, and over we have viewed you as fellow-sufferers with which you have no controul, and your priests us. As we were both entitled by the bounty are exposed to expulsion, banishment, and of an indulgent creator to freedom, and being ruin, whenever their wealth and possessions both devoted by the cruel edicts of a despotic furnish sufficient temptation. They cannot be administration, to common ruin, we perceived sure that a virtuous prince will always fill

the fate of the protestant and catholic col- the throne, and should a wicked or a careonies to be strongly linked together, and less king concur with a wicked ministry in therefore invited you to join with us in re- extracting the treasure and strength of your solving to be free, and in rejecting, with dis- country, it is impossible to conceive to what dain, the fetters of slavery, however artfully variety and to what extremes of wretched-

polished. ness you may, under the present establishWe most sincerely condole with you on ment, be reduced. :

the arrival of that day, in the course of We are informed you have already been which, the sun could not shine on a single called upon to waste your lives in a contest freeman in all your extensive dominion. Be with us. Should you, by complying in this assured, that your unmerited degradation has instance, assent to your new establishment, engaged the most unfeigned pity of your anda war break out with France, your wealth sister colonies; and we flatter ourselves you. and your sons may be sent to perish in ex-

92 DocUMENTS OF AMERICAN History peditions against their islands in the West preservation. They are intended to annoy us,

indies. and to cut off that friendly intercourse and It cannot be presumed that these considera- communication, which has hitherto subsisted

tions will have no weight with you, or that between you and us. We hope it has given you are so lost to all sense of honor. We can you no uneasiness, and you may rely on never believe that the present race of Cana- our assurances, that these colonies will pursue dians are so degenerated as to possess neither no measures whatever, but such as friendthe spirit, the gallantry, nor the courage of ship and a regard for our mutual safety and their ancestors. You certainly will not permit interest may suggest. the infamy and disgrace of such pusillanimity As our concern for your welfare entitles

to rest on your own heads, and the conse- us to your friendship, we presume you will

quences of it on your children forever. not, by doing us injury, reduce us to the We, for our parts, are determined to live disagreeable necessity of treating you as free, or not at all; and are resolved, that enemies. posterity shall never reproach us with having We yet entertain hopes of your uniting

brought slaves into the world. with us in the defence of our common liberty, Permit us again to repeat that we are your and there is yet reason to believe, that should

friends, not your enemies, and be not im- we join in imploring the attention of our posed upon by those who may endeavour to sovereign, to the unmerited and unparalleled create animosities. The taking of the fort oppressions of his American subjects, he will

and military stores at Ticonderoga and at length be undeceived, and forbid a licenCrown-Point, and the armed vessels on the tious Ministry any longer to riot in the ruins

lake, was dictated by the great law of self- of the rights of Mankind. . . .

61. DECLARATION OF THE CAUSES AND NECESSITY OF TAKING UP ARMS

July 6, 1775 |

(Journals of the Continental Congress, ed. by W. C. Ford, Vol. II, p. 140 ff.) Franklin, Jay, Rutledge, Livingston, Johnson, ernment was instituted to promote the welJefferson and Dickinson were the members of fare of mankind, and ought to be administered

the committee appointed to draw up this for the attainment of that end. The legisla-

1CKINSON an elrerson. n e . . .

ccc aration. ay ae oe a suthorship ie ture of Great-Britain, however, stimulated the Declaration, see Appendix IV to C. J. Still by ly unjectifuble passion ior the Sen ny te Life and Times of John Dickinson, Vol. I, p. : 353 ff.; C. H. Van Tyne, The War of Independ- be peculiarly reprobated by the very con-

ence: American Phase. stitution of that kingdom, and desperate of success in any mode of contest, where regard

If it was possible for men, who exercise should be had to truth, law, or right, have their reason to believe, that the divine Author at length, deserting those, attempted to effect

of our existence intended a part of the their cruel and impolitic purpose of enslaving human race to hold an absolute property in, these colonies by violence, and have thereby and an unbounded power over others, marked rendered it necessary for us to close with out by his infinite goodness and wisdom, as__ their last appeal from reason to arms.—Yet, the objects of a legal domination never right- however blinded that assembly may be, by fully resistible, however severe and oppres- their intemperate rage for unlimited dominasive, the inhabitants of these colonies might tion, so to slight justice and the opinion of at least require from the parliament of Great- mankind, we esteem ourselves bound by

Britain some evidence, that this dreadful obligations of respect to the rest of the authority over them, has been granted to world, to make known the justice of our that body. But a reverence for our great cause. Creator, principles of humanity, and the Our forefathers, inhabitants of the island

dictates of common sense, must convince all of Great-Britain, left their native land, to those who reflect upon the subject, that gov- seek on these shores a residence for civil and

DECLARATION OF CAUSES OF TAKING UP ARMS 93 religious freedom. At the expense of their doubt concerning the effects of acquiescence

blood, at the hazard of their fortunes, with- under it. They have undertaken to give out the least charge to the country from and grant our money without our consent, which they removed, by unceasing labour, and though we have ever exercised an exclusive an unconquerable spirit, they effected settle- right to dispose of our own property; statutes ments in the distant and inhospitable wilds have been passed for extending the jurisdic-

of America, then filled with numerous and tion of courts of admiralty, and vice-

warlike nations of barbarians.—Societies or admiralty beyond their ancient limits; for governments, vested with perfect legislatures, depriving us of the accustomed and inestimawere formed under charters from the crown, _ ble privilege of trial by jury, in cases affect-

and an harmonious intercourse was estab- ing both life and property; for suspending lished between the colonies and the kingdom __ the legislature of one of the colonies; for from which they derived their origin. The interdicting all commerce to the capital of mutual benefits of this union became in a another; and for altering fundamentally the

short time so extraordinary, as to excite form of government established by charter, astonishment. It is universally confessed, and secured by acts of its own legislature that the amazing increase of the wealth, solemnly confirmed by the crown; for exstrength, and navigation of the realm, arose empting the “murderers” of colonists from from this source; and the minister, who so _ legal trial, and in effect, from punishment; wisely and successfully directed the meas- for erecting in a neighbouring province,

ures of Great-Britain in the late war, publicly acquired by the joint arms of Great-Britain declared, that these colonies enabled her to and America, a despotism dangerous to our

triumph over her enemies—Towards the very existence; and for quartering soldiers conclusion of that war, it pleased our sover- upon the colonists in time of profound peace.

eign to make a change in his counsels— It has also been resolved in parliament, that From that fatal moment, the affairs of the colonists charged with committing certain British empire began to fall into confusion, offences, shall be transported to England to

and gradually sliding from the summit of be tried. ,

glorious prosperity, to which they had been But why should we enumerate our injuries advanced by the virtues and abilities of one in detail? By one statute it is declared, that man, are at length distracted by the con- parliament can “of right make laws to bind vulsions, that now shake it to its deepest us in all cases whatsoever.”’ What is to defoundations.—The new ministry finding the fend us against so enormous, so unlimited brave foes of Britain, though frequently de- a power? Not a single man of those who feated, yet still contending, took up the un- assume it, is chosen by us; or is subject to fortunate idea of granting them a hasty peace, our controul or influence; but, on the contrary,

and of then subduing her faithful friends. they are all of them exempt from the operaThese devoted colonies were judged to be tion of such laws, and an American revenue, in such a state, as to present victories with- if not diverted from the ostensible purposes out bloodshed, and all the easy emoluments for which it is raised, would actually lighten of statuteable plunder—The uninterrupted their own burdens in proportion, as they intenor of their peaceable and respectful be- crease ours. We saw the misery to which haviour from the beginning of colonization, such despotism wouid reduce us. We for ten their dutiful, zealous, and useful services years incessantly and ineffectually besieged during the war, though so recently and amply the throne as supplicants; we reasoned, we acknowledged in the most honourable manner remonstrated with parliament, in the most by his majesty, by the late king, and by mild and decent language. But admunistraparliament, could not save them from the tion sensible that we should regard these opmeditated innovations.—Parliament was in- pressive measures as freemen ought to do, fluenced to adopt the pernicious project, and sent over fleets and armies to enforce them. assuming a new power over them, have in ‘The indignation of the Americans was roused,

the course of eleven years, given such de- it is true; but it was the indignation of a cisive specimens of the spirit and conse- virtuous, loyal, and affectionate people. A quences attending this power, as to leave no Congress of delegates from the United Colo-

94 DOCUMENTS OF AMERICAN HISTORY nies was assembled at Philadelphia, on the the last year had taken possession of the

fifth day of last September. We resolved town of Boston, in the province of

again to offer an humble and dutiful petition © Massachusetts-Bay, . . . on the 19th day of

to the king, and also addressed our fellow- April, sent out from that place a large desubjects of Great-Britain. We have pursued tachment of his army, who made an unevery temperate, every respectful measure: provoked assault on the inhabitants of the we have cven proceeded to break off our said province, at the town of Lexington, as commercial intercourse with our fellow- appears by the affidavits of a great number subjects, as the last peaceable admonition, of persons, some of whom were officers and that our attachment to no nation upon earth soldiers of that detachment, murdered eight should supplant our attachment to liberty— of the inhabitants, and wounded many others. This, we flattered ourselves, was the ultimate From thence the troops proceeded in war-

step of the controversy: but subsequent like array to the town of Concord, where cvents have shewn, how vain was this hope they set upon another party of the inhabit-

of finding moderation in our enemies. ants of the same province, killing several Several threatening expressions against the and wounding more, until compelled to re-

colonies were inserted in his majesty’s treat by the country people suddenly asspeech; our petition, tho’ we were told it sembled to repel this cruel aggression. Hostiliwas a decent one, and that his majesty had ties, thus commenced by the British troops, been pleased to receive it graciously, and to have been since prosecuted by them without promise laying it before his parliament, was regard to faith or reputation—The inhabithuddled into both houses among a bundle ants of Boston being confined within that of American papers, and there neglected. town by the general their governor, and havThe lords and commons in their address, in ing, in order to procure their dismission, the month of February, said, that ‘‘a rebel- entered into a treaty with him, it was stipulion at that time actually existed within the lated that the said inhabitants having de-

province of Massachusetts-Bay; and that posited their arms with their own magisthose concerned in it,,had been countenanced _ trates, should have liberty to depart, taking

and encouraged by unlawful combinations with them their other effects. They acand engagements, entered into by his maj- cordingly delivered up their arms, but in esty’s subjects in several of the other colo- open violation of honour, in defiance of nies; and therefore they besought his maj- the obligation of treaties, which even savage

esty, that he would take the most effectual nations esteemed sacred, the governor measures to inforce due obedience to the ordered the arms deposited as aforesaid, that laws and authority of the supreme legisla- they might be preserved for their owners, to ture.”—-Soon after, the commercial inter- be seized by a body of soldiers; detained course of whole colonies, with foreign coun- the greatest part of the inhabitants in the tries, and with each other, was cut off by town, and compelled the few who were peran act of parliament; by another several mitted to retire, to leave their most valuable

of them were intirely prohibited from the effects behind... . fisheries in the seas near their coasts, on The General, further emulating his minis-

which they always depended for their sus- terial masters, by a proclamation bearing date tenance; and large reinforcements of ships on the 12th day of June, after venting the and troops were immediately sent over to grossest falsehoods and calumnies against

general Gage. the good people of these colonies, proceeds Fruitless were all the entreaties, argu- to “declare them all, either by name or

ments, and eloquence of an illustrious band description, to be rebels and traitors, to of the most distinguished peers, and com- _ supersede the course of the common law, moners, who nobly and stren[ulously as- and instead thereof to publish and order the serted the justice of our cause, to stay, or use and exercise of the law martial.’—His even to mitigate the heedless fury with which troops have butchered our countrymen, have these accumulated and unexampled outrages wantonly burnt Charlestown, besides a con-

were hurried on... . siderable number of houses in other places;

. . . General Gage, who in the course of our ships and vessels are seized; the neces-

PROCLAMATION OF REBELLION 95 sary supplies of provisions are intercepted, assume, we will, in defiance of every hazard,

and he is exerting his utmost power to with unabating firmness and perseverance,

spread destruction and devastation around employ for the preservation of our liberties ;

him. being with one mind resolved to die freemen We have received certain intelligence, that rather than to live slaves. General Carleton, the Governor of Canada, Lest this declaration should disquiet the is instigating the people of that province minds of our friends and fellow-subjects in and the Indians to fall upon us; and we have any part of the empire, we assure them that but too much reason to apprehend, that we mean not to dissolve that union which

schemes have been formed to excite domestic has so long and so happily subsisted between

enemies against us. In brief, a part of these us, and which we sincerely wish to see recolonies now feel, and all of them are sure stored.—Necessity has not yet driven us of fecling, as far as the vengeance of ad- into that desperate measure, or induced us ministration can inflict them, the compli- to excite any other nation to war against cated calamities of fire, sword, and famine. them.—We have not raised armies with We are reduced to the alternative of chus- ambitious designs of separating from Greating an unconditional submission to the Britain, and establishing independent states. tyranny of irritated ministers, or resistance We fight not for glory or for conquest. We by force.—The latter is our choice—We exhibit to mankind the remarkable spectacle have counted the cost of this contest, and of a people attacked by unprovoked enemies, find nothing so dreadful as voluntary slavery. without any imputation or even suspicion of —Honour, justice, and humanity, forbid us offence. They boast of their privileges and tamely to surrender that freedom which we civilization, and yet proffer no milder conreceived from our gallant ancestors, and ditions than servitude or death.

which our innocent posterity have a right In our own native land, in defence of the to receive from us. We cannot endure the freedom that is our birth-right, and which infamy and guilt of resigning succeeding we ever enjoyed till the late violation of generations to that wretchedness which in- it—for the protection of our property, evitably awaits them, if we basely entail acquired solely by the honest industry of our

hereditary bondage upon them. fore-fathers and ourselves, against violence Our cause is just. Our union is perfect. actually offered, we have taken up arms. Our internal resources are great, and, if We shall lay them down when hostilities necessary, foreign assistance is undoubtedly shall cease on the part of the aggressors, attainable—We gratefully acknowledge, as and all danger of their being renewed shall signal instances of the Divine favour towards be removed, and not before. us, that his Providence would not permit us With an humble confidence in the mercies

to be called into this severe controversy, of the supreme and impartial Judge and until we were grown up to our present Ruler of the Universe, we most devoutly strength, had been previously exercised in implore his divine goodness to protect us warlike operation, and possessed of the happily through this great conflict, to dispose means of defending ourselves. With hearts our adversaries to reconciliation on reasonafortified with these animating reflections, we ble terms, and thereby to relieve the empire most solemnly, before God and the world, from the calamities of civil war.

declare, that, exerting the utmost energy of By order of Congress

those powers, which our beneficent Creator JoHN HANcockK

hath graciously bestowed upon us, the arms President.

we have been compelled by our enemies to

62. PROCLAMATION OF REBELLION August 23, 1775 (Force’s American Archives, Fourth Series, Vol. III, p. 240) Despite Lexington and Concord and Bunker _ still hoped for a reconciliation. Two days after Hill, the moderates in the Continental Congress Bunker Hill, Dickinson, the leader of the

96 DOCUMENTS OF AMERICAN History moderates, reported a draft for a final petition protection which the law will afford to their

to the King; this was accepted by Congress loyalty and zeal, we have thought fit, by July 8, 1775, and Richard Penn was authorized and with the advice of our Privy Council, to present it to the King. The news of American to issue our Royal Proclamation, hereby deresistance, however, determined the King to lari that t 1] Off “il proclaim a state of rebellion. News of the Procla- c aTINg at no on y all our ce TS, C1VI mation arrived in America October 31. See, R. and military, are obliged to exert their utmost Frothingham, Rise of the Republic of the United endeavours to suppress such rebellion, and States, p. 435 ff.; C. J. Stillé, Life and Times of to bring the traitors to justice, but that all John Dickinson, Vol. 1; J. Fiske, The American our subjects of this Realm, and the domin-

Revolution, Vol. I, ch. v. ions thereunto belonging, are bound by law

to be aiding and assisting in the suppression of such rebellion, and to disclose and make A PROCLAMATION BY THE KING FoR Sup- known all traitorous conspiracies and attempts PRESSING REBELLION AND SEDITION against us, our crown and dignity; and we

GEORGE R. do accordingly strictly charge and command Whereas many of our subjects in divers all our Officers, as well civil as military, parts of our Colonies and Plantations in and all others our obedient and loyal subNorth America, misled by dangerous and ill jects, to use their utmost endeavours to withdesigning men, and forgetting the allegiance stand and suppress such rebellion, and to dis-

which they owe to the power that has pro- close and make known all treasons and

tected and supported them; after various traitorous conspiracies which they shall know disorderly acts committed in disturbance of to be against us, our crown and dignity; and

the publick peace, to the obstruction of for that purpose, that they transmit to one

lawful commerce, and to the oppression of _ of our principal Secretaries of State, or other

our loyal subjects carrying on the same; proper officer, due and full information of have at length proceeded to open and _ all persons who shall be found carrying on

avowed rebellion, by arraying themselves in correspondence with, or in any manner or a hostile manner, to withstand the execution degree aiding or abetting the persons now in of the law, and traitorously preparing, order- open arms and rebellion against our Governing and levying war against us: And whereas, ment, within any of our Colonies and Plantathere is reason to apprehend that such rebel- tions in North America, in order to bring lion hath been much promoted and encour- to condign punishment the authors, prepetraaged by the traitorous correspondence, coun- tors, and abetters of such traitorous designs.

sels and comfort of divers wicked and Given at our Court at St. James’s the

desperate persons within this realm: To the twenty-third day of Azgust, one thousand end therefore, that none of our subjects may seven hundred and seventy-five, in the fifneglect or violate their duty through igno- teenth year of our reign.

rance thereof, or through any doubt of the Gop save the Kno.

63. THE MOVEMENT FOR INDEPENDENCE Instructions from the Town of Malden, Massachusetts, for a Declaration of Independence May 27, 1776

(H. Niles, ed. Principles and Acts of the Revolution, 1822 ed. p. 156-7) On May 9 the Massachusetts House of Repre- chosen to Represent them in the next General sentatives, then sitting at Watertown, appointed Court, whether if the honorable Congress a committee to bring in a resolve that the should, for the Safety of the said Colonies, deTowns of the colony instruct their representa- clare them Independent of the Kingdom of tives with respect to independence. The follow- Great-Britain, they the said Inhabitants will ing day the House resolved that “The In- solemnly engage with their Lives and Fortunes habitants of each Town, in this Colony, ought to Support the Congress in the Measure.” The in full Meeting warned for that Purpose, to instructions from Malden are typical of many advise the Person or Persons who shall be voted by the towns of Massachusetts. See A. B.

Tue MovEMENT FOR INDEPENDENCE 97 Hart, ed. Commonwealth History of Massachu- ful dwellings ascending to Heaven! we hear setts, Vol. III, p. 93 ff.; K. Colegrove, “New their blood crying to us from the ground for

England Town Mandates”, Colonial Society of vengeance! charging us, as we value the Massachusetts, Publications, Vol. XXI, p. 411 ff. peace of their names, to have no further

: connection with—,who can unfeelingly hear

At a legal meeting of the inhabitants of of the slaughter of—, and composedly sleep the town of Malden, (Mass.), May 27, with their blood upon his soul. The manner 1776, it was voted unanimously that the in which the war has been prosecuted hath following instructions be given to their repre- confirmed us in these sentiments; piracy and

senative, viz. to Mr Ezra Sargeant. murder, robbery and breach of faith, have Sir—A resolution of the hon. house of been conspicuous in the conduct of the representatives, calling upon the several king’s troops: defenceless towns have been towns in this colony to express their minds attacked and destroyed: the ruins of Charles-

in respect to the important question of town, which are daily in our view, daily American independence, is the occasion of reminds of this: the cries of the widow and our now instructing you. The time was, sir, the orphan demand our attention; they de-

when we loved the king and the people of mand that the hand of pity should wipe Great Britain with an affection truly filial; the tear from their eye, and that the sword

we felt ourselves interested in their glory; of their country should avenge their wrongs. we shared in their joys and sorrows; we We long entertained hope that the spirit of cheerfully poured the fruit of all our labours the British nation would once more induce into the lap of our mother country, and with- them to assert their own and our rights, and out reluctance expended our blood and our bring to condign punishment the elevated

treasure in their cause. villains who have trampled upon the sacred

These were our sentiments toward Great rights of men and affronted the majesty of Britain while she continued to act the part the people. We hoped in vain; they have lost of a parent state; we felt ourselves happy in their love to freedom, they have lost their

our connection with her, nor wished it to spirit of just resentment; we therefore rebe dissolved; but our sentiments are altered, nounce with disdain our connexion with a it is now the ardent wish of our soul that kingdom of slaves; we bid a final adieu to America may become a free and independent Britain.

state. Could an accommodation now be effected, A sense of unprovoked injuries will arouse we have reason to think that it would be the resentment of the most peaceful. Such fatal to the liberties of America; we should injuries these colonies have received from soon catch the contagion of venality and Britain. Unjustifiable claims have been made dissipation, which hath Britains to lawless by the king and his minions to tax us with- domination. Were we placed in the situation

out our consent; these claims have been we were in 1763: were the powers of approsecuted in a manner cruel and unjust pointing to offices, and commanding the to the highest degree. The frantic policy militia, in the hands of governors, our arts, of administration hath induced them to send ___ trade and manufactures, would be cramped;

fleets and armies to America; that, by de- nay, more than this, the life of every man

priving us of our trade, and cutting the who has been active in the cause of his throats of our brethren, they might awe us country would be endangered. into submission, and erect a system of des- For these reasons, as well as many others potism in America, which should so far en- which might be produced, we are confirmed large the influence of the crown as to enable in the opinion, that the present age would

it to rivet their shackles upon the people’ be deficient in their duty to God, their

of Great Britain. posterity and themselves, if they do not This plan was brought to a crisis upon’ establish an American republic. This is the the ever memorable nineteenth of April. We only form of government which we wish to remember the fatal day! the expiring groans see established; for we can never be will-

of our countrymen yet vibrate on our ears! ingly subject to any other King than he and we now behold the flames of their peace- who, being possessed of infinite wisdom,

98 DOCUMENTS OF AMERICAN HISTORY goodness and rectitude, is alone fit to possess tion; and we now instruct you, sir, to give

unlimited power. them the strongest assurance, that, if they We have freely spoken our sentiments should declare America to be a free and inupon this important subject, but we mean dependent republic, your constituents will not to dictate; we have unbounded con-_ support and defend the measure, to the last fidence in the wisdom and uprightness of drop of their blood, and the last farthing of the continental congress: with pleasure we their treasure. recollect that this affair is under their direc-

64. MECKLENBURG COUNTY RESOLUTIONS May 31, 1776 (Documents Illustrative of the Formation of the Union of the American States, p. 6 ff.) These resolutions, adopted in Charlotte Town, Province, under the Direction of the Great Mecklenburg County, North Carolina, were en- Continental Congress, is invested with all trusted to the North Carolina delegation to legislative and executive Powers within their the Continental Congress, but never presented. respective Provinces; and that no other In 1819 an account of these resolutions was Legislative or Executive does or can exist, published, embellished with phrases taken from ; ; . . the Declaration of Independence; this spurious at this Time, in any of these Colonies. . account gave rise to.the persistent myth of the 3: As all former Laws are now suspended in Mecklenburg ‘Declaration of Independence.” this Province, and the Congress have not yet Subsequent investigation proved that no such provided others, we judge it necessary, for “declaration” had been adopted at the time, the better Preservation of good Order, to and established the real character of the resolu- form certain Rules and Regulations for the tions. See, W. H. Hoyt, Mecklenberg Declara- internal Government of this County, until tion of Independence; E. W. Sikes, Transition Jaws shall be provided for us by the Conof North Carolina from Colony to Common- gress. wealth; J Fiske The American Revolution, Vol. 4. That the Inhabitants of this County do

» P. meet on a certain Day appointed by this This day the Committee met, and passed the Committee, and having formed themselves

following into nine Companies, to wit, eight for the County and one for the Vown of Charlotte,

RESOLVES do choose a Colonel and other military OfWhereas by an address presented to his Maj- _ficers, who shall hold and exercise their sev-

esty by both Houses of Parliament in eral Powers by Virtue of this Choice, and February last, the American Colonies are independent of Great-Britain, and former declared to be in a State of actual Rebellion, Constitution of this Province. we conceive that all Laws and Commissions 5. That for the better Preservation of the confirmed by, or derived from the Author- Peace and Administration of Justice, each

ity of the King or Parliament, are annulled of these Companies do choose from their and vacated, and the former civil Constitu- own Body two discreet Freeholders, who tion of these Colonies for the present wholly shall be impowered each by himself, and suspended. To provide in some degree for singly, to decide and determine all Matters the Exigencies of the County in the present of Controversy arising within the said Com-

alarming Period, we deem it proper and pany under the Sum of Twenty Shillings, necessary. to pass the following Resolves, and Jointly and together all Controversies

viz. under the Sum of Forty Shillings, yet so 1. That all Commissions, civil and military, as their Decisions may admit of Appeals to

heretofore granted by the Crown, to be ex- the Convention of the Select Men of the ercised in these Colonies, are null and void, whole County; and also, that any one of

and the Constitution of each particular these shall have Power to examine, and

Colony wholly suspended. commit to Confinement, Persons accused of

2. That the Provincial Congress of each Petit Larcency.

MECKLENBURG COUNTY RESOLUTIONS 99 6. That those two Select Men, thus chosen, a faithful Return of such Monies when

do, jointly and together, choose from the collected... . .

Body of their particular Company two Per- 14. That all these Officers hold their Comsons, properly qualified to serve as Con- missions during the Pleasure of their respec-

stables, who may assist them in the Execu- tive Constituents. :

tion of their Office. 15. That this Committee will sustain all 7. That upon the Complaint of any Person Damages that may ever hereafter accrue to either of these Select Men, he do issue to all or any of these Officers thus appointed, his Warrant, directed to the Constable, com- and thus acting, on Account of their Obedimanding him to bring the Aggressor before ence and Conformity to these Resolves. him or them to answer the said Complaint. 16. That whatever person shall hereafter re8. That these eighteen Select Men, thus ap- ceive a Commission from the Crown, or at-

pointed, to meet every third Tuesday in tempt to exercise any such Commission : January, April, July, and October, at the heretofore received, shall be deemed an Courthouse in Charlotte, to hear and deter- Enemy to his Country; and upon Informamine all Matters of Controversy for Sums tion being made to the Captain of the Comexceeding Forty Shillings; also Appeals: and pany where he resides, the said Captain shall in Cases of Felony, to commit the Person cause him to be apprehended, and conveyed or Persons convicted thereof to close Con- before the two Select Men of the said Com-

finement, until the Provincial Congress shall pany, who upon Proof of the Fact shall provide and establish Laws and Modes of commit him the said Offender, into safe

Proceeding in all such Cases. Custody, until the next sitting of the Con-

9. That these Eighteen Select Men, thus vention who shall deal with him as Prudence convened, do choose a Clerk to record the may direct. Transactions of said Convention; and that 17. That any Person refusing to yield Obethe said Clerk, upon the Application of any dience to the above Resolves shall be deemed Persons or Persons aggrieved, do issue his equally criminal and liable to the same PunWarrant to one of the Constables, to sum- ishments as the Offenders above last menmons and warn said Offender to appear be- _ tioned. fore the Convention at their next sitting, to 18. That these Resolves be in full Force and

answer the aforesaid Complaint. Virtue, until Instructions from the General

10. That any Person making complaint under Congress of this Province, regulating the Oath to the Clerk, or any Member of the Jurisprudence of this Province, shall provide Convention, that he has reason to suspect otherwise, or the legislative body of Greatthat any Person or Persons indebted to him Britain resign its unjust and arbitrary PreIn a Sum above Forty Shillings, do intend tentions with Respect to America. clandestinely to withdraw from the County 19. That the several Militia Companies in without paying such Debt; the Clerk, or _ this county do provide themselves with such Member, shall issue his Warrant to the proper Arms and Accoutrements, and hold Constable, commanding him to take the said themselves in Readiness to execute the comPerson or Persons into safe Custody, until mands and Directions of the Provincial Con-

the next sitting of the Convention. .. . gress, and of this committee. 12, That all Receivers and Collectors of 20. That this committee do appoint Colonel Quitrents, Public and County Taxes, do pay Thomas Polk, and Doctor Joseph Kennedy,

the same into the Hands of the Chairman to purchase 300 lb. of Powder, 600 lb. of

of this Committee, to be by them disbursed Lead, and 1000 Flints, and deposit the same as the public Exigencies may require. And in some safe place, hereafter to be appointed that such Receivers and Collectors proceed by the committee.

no farther in their Office until they be Signed by Order of the Committee. approved of by, and have given to this EPH. BREVARD, Clerk of the Committee. Committee good and sufficient Security for

100 DOCUMENTS OF AMERICAN History 65. RESOLUTION FOR INDEPENDENCE June 7, 1776 (Journals of the Continental Congress, ed. by W. C. Ford, Vol. V, p. 425) These resolutions were introduced by Richard that all political connection between them Henry Lee of Virginia and seconded by John and the State of Creat Britain is, and ought Adams. The first resolution was not voted until to be totally dissolved. July 2; the others were acted upon later. See, That it is expedient forthwith to take the

R. Frothingham, Rise of the Republic of the i, United States, p. $13 ff most effectual measures for forming foreign

oe Alliances.

RESOLVED, That these United Colonies That a plan of confederation be prepared are, and of right ought to be, free and in- and transmitted to the respective Colonies dependent States, that they are absolved for their consideration and approbation. from all allegiance to the British Crown, and

66. THE DECLARATION OF INDEPENDENCE July 4, 1776 (F. N. Thorpe, ed. Federal and State Constitutions, Vol. I, p. 3 ff. The text is taken from the version in the Revised Statutes of the United States, 1878 ed., and has been collated with the facsimile of the original as printed in the original Journal of the old Congress.) On June 7, 1776, Richard Henry Lee of Virginia equal station to which the Laws of Nature introduced three resolutions one of which stated and of Nature’s God entitle them, a decent that the “colonies are, and of right ought to be, respect to the opinions of mankind requires

free and independent States.” On the 10th a ip.4 they should declare the causes which

ion of independence; the , _avident of Jefferson, John Adams, Franklin, Sherman We hold these ee to ia rer vient, St inane a eee See; impel them to the separation

and R. R. Livingston. This committee brought that all men are create equal, that ¢ ey are in its draft on the 28th of June, and on the 2nd endowed by their Creator with certain Unof July a resolution declaring independence was alienable Rights, that among these are Life, adopted. July 4 the Declaration of Independence Liberty and the pursuit of Happiness. That was agreed to, engrossed, signed by Hancock, to secure these rights, Governments are inand sent to the legislatures of the States. The stituted among Men, deriving their Just powengrossed copy of the Declaration was signed ers from the consent of the governed, That by all but one signer on Anes D. pr poe whenever any Form of Government becomes of Indepentence sp ch aith “ts analysis of destructive of these ends, it is the Right of

of Indepen , . ch. , “oh:

Jefferson’s draft; H. Friedenwald, The Declara- the People to er or to eon araae ind tion of Independence; J. H. Hazelton, Declara- institute wach ove iulea 4 oe Its oundation of Independence; J. Sanderson, Lives of tion on such principles and organizing Its

the Signers to the Declaration; R. Frothingham, powers in such form, as to them shall scem Rise of the Republic, ch. xi.; C. H. Van Tyne, most likely to effect their Safety and Happi-

The War of Independence, American Phase. ness. Prudence, indeed, will dictate that

Governments long established should not be

In Congress, July 4, 1776, changed for light and transient causes; and

accordingly all experience hath shown, that THE UNANIMOUS RR SEARATION OF ane mankind are more disposed to suffer, while

THIRTEEN UNITED STATES evils are sufferable, than to right themselves When in the Course of human events, it by abousnng the rorms te which they ane acbecomes necessary for one people to dissolve _customed. Sut when a ong rain Or abuses the political bands which have connected and usurpations, pursuing invariably the same them with another, and to assume among Object evinces a design to reduce them un-

the Powers of the earth, the separate and der absolute Despotism, it is their right, it

THE DECLARATION OF INDEPENDENCE 101 is their duty, to throw off such Government, Will alone, for the tenure of their offices, and and to provide new Guards for their future the amount and payment of their salaries. security.—Such has been the patient suffer- He has erected a multitude of New Offices, ance of these Colonies; and such is now the and sent hither swarms of Officers to harass necessity which constrains them to alter their our People, and eat out their substance. former Systems of Government. The history He has kept among us, in times of peace, of the present King of Great Britain is a his- Standing Armies without the Consent of our tory of repeated injuries and usurpations, all legislature. having in direct object the establishment of He has affected to render the Military in-

an absolute Tyranny over these States. To dependent of and superior to the Civil prove this, let Facts be submitted to a can- Power.

did world. He has combined with others to subject He has refused his Assent to Laws, the us to a jurisdiction foreign to our constitu-

most wholesome and necessary for the public __ tion, and unacknowledged by our laws; giving

good. his Assent to their acts of pretended legislaHe has forbidden his Governors to pass tion: Laws of immediate and pressing importance, For quartering large bodies of armed unless suspended in their operation till his troops among us:

Assent should be obtained; and when so For protecting them, by a mock Trial, suspended, he has utterly neglected to attend from Punishment for any Murders which

to them. they should commit on the Inhabitants of

He has refused to pass other Laws for the these States: accommodation of large districts of people, For cutting off our Trade with all parts of unless those people would relinquish the the world: right of Representation in the Legislature, < For imposing taxes on us without our right inestimable to them and formidable to Consent:

tyrants only. For depriving us in many cases, of the

He has called together legislative bodies benefits of Trial by Jury: :

at places unusual, uncomfortable, and dis- For transporting us beyond Seas to be

tant from the depository of their Public Rec- tried for pretended offences: ords, for the sole purpose of fatiguing them For abolishing the free System of English

into compliance with his measures. Laws in a neighbouring Province, establish-

He has dissolved Representative Houses ing therein an Arbitrary government, and enrepeatedly, for opposing with manly firm- larging its Boundaries so as to render it at ness his invasions on the rights of the peo- once an example and fit instrument for in-

ple. troducing the same absolute rule into these

He has refused for a long time, after such Colonies: dissolutions, to cause others to be elected; For taking away our Charters, abolishing whereby the Legislative Powers, incapable our most valuable Laws, and altering fundaof Annihilation, have returned to the People mentally the Forms of our Governments: at. large for their exercise; the State remain- For suspending our own Legislature, and ing in the mean time exposed to all the dan- declaring themselves invested with Power to gers of invasion from without, and convul- legislate for us in all cases whatsoever.

sions within. He has abdicated Government here, by

Fie has endeavoured to prevent the popu- declaring us out of his Protection and waglation of these States; for that purpose ob- ing War against us. structing the Laws of Naturalization of For- He has plundered our seas, ravaged our elgners; refusing to pass others to encourage Coasts, burnt our towns, and destroyed the their migration hither, and raising the con- lives of our people. ditions of new Appropriations of Lands. He is at this time transporting large armies He has obstructed the Administration of of foreign mercenaries to compleat the Justice, by refusing his Assent to Laws for works of death, desolation and tyranny, al-

establishing Judiciary Powers. ready begun with circumstances of Cruelty

He has made Judges dependent on his & perfidy scarcely paralleled in the most

102 DocUMENTS OF AMERICAN HISTORY barbarous ages, and totally unworthy the and correspondence. They too have been

Head of a civilized nation. deaf to the voice of justice and of consanHe has constrained our fellow Citizens guinity. We must, therefore, acquiesce in the taken Captive on the high Seas to bear Arms necessity, which denounces our Separation, against their Country, to become the exe- and hold them, as we hold the rest of mancutioners of their friends and Brethren, or kind, Enemies in War, in Peace Friends.

to fall themselves by their Hands. We, therefore, the Representatives of the He has excited domestic insurrections united States of America, in General Con-

amongst us, and has endeavoured to bring’ gress, Assembled, appealing to the Supreme

on the inhabitants of our frontiers, the Judge of the world for the rectitude of our merciless Indian Savages, whose known rule intentions, do, in the Name, and by Auof warfare, is an undistinguished destruction thority of the good People of these Colo-

of all ages, sexes and conditions. nies, solemnly publish and declare, That In every stage of these Oppressions We’ these United Colonies are, and of Right have FPetitioned for Redress in the most ought to be Free and Independent States; humble terms: Our repeated Petitions have that they are Absolved from all Allegiance been answered only by repeated injury. A to the British Crown, and that all political Prince, whose character is thus marked by connection between them and the State of every act which may define a Tyrant, is Great Britain, is and ought to be totally dis-

unfit to be the ruler of a free People. solved; and that as Free and Independent Nor have We been wanting in attention to States, they have full Power to levy War, our Brittish brethren. We have warned them conclude Peace, contract Alliances, establish

from time to time of attempts by their legis- Commerce, and to do all other Acts and lature to extend an unwarrantable jurisdic- Things which Independent States may of tion over us. We have reminded them of the right do. And for the support of this Deccircumstances of our emigration and settle- laration, with a firm reliance on the Protecment here. We have appealed to their native tion of Divine Providence, we mutually justice and magnanimity, and we have con- pledge to each other our Lives, our Fortunes

jured them by the ties of our common and our sacred Honor.

kindred to disavow these usurpations, which, JOHN HANCOCK. would inevitably interrupt our connections

New Hambpslure New York

Jos1AH BARTLETT, Wm. FLoyp, Wm. WHIPPLE, Puit. LIVINGSTON, MATTHEW THORNTON. FRANS. LEWIS,

Lewis Morris.

Massachusetts-Bay P lvani SAML. ADAMS, Enns yan Rost. Morris

JOHN BENJAMIN Rusu Rost.ADAMS, TREAT PAINE,

ELBRIDGE GERRY. BENJA. FRANKLIN, JouHn Morton, GEO. CLYMER,

Rhode Island JAS. SMITH, Step. HOPKINS, Geo. TAYLOR,

WILLIAM ELLERY. JAMES WILSON, Geo. Ross.

Connecticut

RoceR SHERMAN, Delaware

SAM’EL HUNTINGTON, CAESAR RODNEY,

Wo. WILLIAMS, Gro. READ,

OLIvER WOLCOTT. Tuo. M’KEAN.

Tue VIRGINIA BILL OF RIGHTS 103

Georgia North Carolina BUTTON GWINNETT, Wn. Hooper,

LyMAN HALL, JosrEpH HEWES,

Gro. WALTON. JOHN PENN.

Maryland

SAMUEL CHASE, South Carolina

Won. Paca, EDWARD RUTLEDGE,

THOS. STONE, TuHos. HEYWARD, JUNR., CHARLES CARROLL of Carrollton. Tuomas LyncH, JUNR., ARTHUR MIDDLETON. V ir ginta GreorceE WYTHE,

RICHARD HENRY LEE, New Jersey

Tu. JEFFERSON, RICHD. STOCKTON, _ BENJA. HARRISON, Jno. WITHERSPOON, Tus. NELSON, JR., Fras. HOPKINSON, Francis LicHTFroot LEE, Joun Hart, CARTER BRAXTON. ABRA. CLARK.

67. THE VIRGINIA BILL OF RIGHTS June 12, 1776 (Poore, ed. The Federal and State Constitutions, Part. II, p. 1908-9) This most famous of the Declarations of Rights trates are their trustees and servants, and at of the criginal state constitutions was drafted by all times amenable to them. George Mason and adopted with slight changes 3. That government is, or ought to be inand two additions, by the Virginia Convention ciityted for the common benefit protection

of 1776. It exerted a wide influence not only and security of the people nation or com. in this country but in France. The article on , ; religious freedom was drafted by Patrick Henry. munity; of all the vatlous modes and forms See, K. Rowland, Life of George Mason, 2 Vols.; of government, that is best which is capable

H. B. Grigsby, The Virginia Convention of of producing the greatest degree of happi1776; G. Jellineck, The Declaration of the Rights ness and safety, and is most effectually seof Man; B. Fay, Revolutionary Spirit in France cured against the danger of maladministra-

and America, p. 263 ff. tion; and that when any government shall

be found inadequate or contrary to these A declaration of rights made by the repre- purposes, a majority of the community hath sentatives of the good people of Vir- an indubitable, unalienable and indefeasible ginia, assembled in full and free con- right to reform, alter or abolish it, in such vention; which rights do pertain to manner as shall be judged most conducive to them and their posterity, as the basis the public weal.

and foundation of government. 4. That no man, or set of men, are en-

1. That all men are by nature equally free titled to exclusive or separate emoluments or and independent, and have certain inherent privileges from the community, but in conrights, of which, when they enter into a state sideration of publick services; which, not of society, they cannot by any compact de- being descendible, neither ought the offices

prive or divest their posterity; namely, the of magistrate, legislator or judge to be enjoyment of life and liberty, with the hereditary. means of acquiring and possessing property, 5. That the legislative and executive powand pursuing and obtaining happiness and ers of the state should be separate and dis-

safety. tinct from the judiciary; and that the mem2. That all power is vested in, and conse- bers of the two first may be restrained from quently derived from, the people; that magis- oppression, by feeling and participating the

104 DOCUMENTS OF AMERICAN HisToRyY burthens of the people, they should, at fixed persons not named, or whose offence is not periods, be reduced to a private station, re- particularly described and supported by evi-

turn into that body from which they were dence, are grievous and oppressive, and originally taken, and the vacancies be sup- ought not to be granted. plied by frequent, certain, and regular elec- 11. That in controversies respecting proptions, in which all, or any part of the former erty, and in suits between man and man, the members to be again eligible or ineligible, as ancient trial by jury is preferable to any

the laws shall direct. other, and ought to be held sacred.

6. That elections of members to serve as 12. That the freedom of the press is one representatives of the people in assembly, of the great bulwarks of liberty, and can ought to be free; and that all men having never be restrained but by despotick govsufficient evidence of permanent common in- — ernments.

terest with, and attachment to the commu- 13. That a well-regulated militia, comnity, have the right of suffrage, and cannot posed of the body of the people trained to be taxed or deprived of their property for arms, is the proper, natural and safe defence publick uses, without their own consent, or of a free state; that standing armies in time that of their representatives so elected, nor of peace should be avoided as dangerous to bound by any law to which they have not, in liberty; and that in all cases the military like manner, assented for the public good. should be under strict subordination to, and 7. That all power of suspending laws, or governed by, the civil power. the execution of laws, by any authority with- 14. That the people have a right to uniout consent of the representatives of the peo- form government; and, therefore, that no ple, is injurious to their rights, and ought government separate from, or independent

not to be exercised. of the government of Virginia, ought to be

8. That in all capital or criminal prosecu- erected or established within the limits tions a man hath a right to demand the _ thereof. cause and nature of his accusation, to be 15. That no free government, or the blessconfronted with the accusers and witnesses, ings of liberty, can be preserved to any peoto call for evidence in his favour, and to a_ ple, but by a firm adherence to justice, mod-

speedy trial by an impartial jury of his eration, temperance, frugality and virtue, vicinage, without whose unanimous consent and by frequent recurrence to fundamental he cannot be found guilty; nor can he be © principles. compelled to give evidence against himself; 16. That religion, or the duty which we that no man be deprived of his liberty, ex- owe to our Creator, and the manner of discept by the law of the land or the judgment charging it, can be directed only by reason

of his peers. and conviction, not by force or violence;

9. That excessive bail ought not to be re- and therefore all men are equally entitled quired, nor excessive fines imposed, nor to the free exercise of religion, according to cruel and unusual punishments inflicted. the dictates of conscience; and that it is the 10. That general warrants, whereby an of- mutual duty of all to practise Christian forficer or messenger may be commanded to’ bearance, love, and charity towards each search suspected places without evidence of _ other. a fact committed, or to seize any person or

68. THE CONCORD TOWN MEETING DEMANDS A CONSTITUTIONAL CONVENTION

Resolutions of the Concord Town Meeting October 21, 1776 (Facsimile in Massachusetts, Manual of the Constitutional Convention, 1917) As early as May 10, 1776 Congress had passed the happiness and safety of their constituents.” a resolution advising the colonies to form new The actual transformation of Colony into Comgovernments “such as shall best conduce to monwealth, however, was a task that challenged

TREATY OF ALLIANCE WITH FRANCE 105 the talents of the wisest statesmen. How could & Priviliges, against any Encroachments of governments be established in harmony with the the Governing Part. 2—Because the Same principles of the Revolution; how could the Body that forms a Constitution have of Con-

theory that government originates with the sequence a power to alter it. 3—because a people be transformed into reality? The frst Constitution alterable by the Supreme Legissuggestion of the method eventually perfected lative is no Security at all to the Subject came from the town of Concord. The advice of 28ainst any Encroachment of the Governing the Concord Town Meeting, however, was not Part on any, or on all of their Rights and

by Americans—the constitutional conventlon— ; . followed in the construction of the first Massa- _ priviliges.

' chusetts constitution. Not until 1779 did Mas- Resolved 3d. That it appears to this Town sachusetts work out a system in harmony with highly necessary & Expedient that a Conventhe Concord Resolutions. See, S. E. Morison, tion, or Congress be immediately Chosen, to “History of the Constitution of Massachusetts” form & establish a Constitution, by the in-

in Manual of the Constitutional Convention of habitents of the Respective Towns in this

1917. State, being free & of twenty-one years of age and upward, in Proportion as the Rep-

At a meeting of the Inhabitents of the resentatives of this State formerly were Town of Concord being free & twenty one Chosen: the Convention or Congress not to years of age and upward, met by adjourn- Consist of a greater number than the house

ment on the twenty first Day of october of assembly of this State heretofore might 1776 to take into Consideration a Resolve Consist of, Except that each Town & Disof the Honourable house of Representatives trict shall have the Liberty to Send one of this State on the 17th of September Last Representative, or otherwise as Shall appear

the Town Resolved as followes— meet to the Inhabitants of this State in

Resolve Ist: That this State being at Pres- General. ent destitute of a Properly established form Resolve 4th. that when the Convention or of Government, it is absolutely necessary Congress have formed a Constitution they that one should be emmediatly formed and adjourn for a Short time and Publish their

established. Proposed Constitution for the Inspection Resolved 2. That the Supreme Legislative, and Remarks of the Inhabitents of this either in their Proper Capacity or in Joint State. Committee, are by no means a body proper Resolved Sly. that the honourable house to form & Establish a Constitution or form of assembly of this State be Desired to Recof Government; for Reasons following. first ommend it to the Inhabitents of the State Because we Conceive that a Constitution in to Proceed to Chuse a Convention or Con-

its Proper Idea intends a System of Prin- gress for the Purpas abovesaid as soon as ciples Established to Secure the Subject in Possable. the Possession & enjoyment of their Rights Concorp, October the 22d, 1776.

69. TREATY OF ALLIANCE WITH FRANCE February 6, 1778 (Malloy, ed. Treaties, Conventions, etc., Vol. I, p. 479 ff.) This was one of two treaties concluded by the American Revolution, Vol. I; W. H. Trescot, American Commissioners, Franklin, Deane, and Diplomacy of the American Revolution; E. S.

Lee; the other was a Treaty of Amity and Corwin, French Policy and the American AlliCommerce. The Treaty of Alliance was not ance of 1778; J. B. Perkins, France in the Ameriwarranted by the instructions from Congress, can Revolution; E. E. Hale, Franklin in France; but Congress ratified it May 4, 1778. This was and the monumental work of H. Doniol, Histhe first and only treaty of alliance ever made torte de la Participation de la France a l’Etablisby the United States. The literature on the sement des Etats-Unis d’Amérique, 5 Vols. American diplomatic negotiations with France

and the Treaty of Alliance is voluminous: see, Art. I.—If war should break out between F. Wharton, Diplomatic Correspondence of the France and Great Britain during the con-

106 DOCUMENTS OF AMERICAN HIsToRyY tinuance of the present war between the near that Gulph, which are at present under United States and England, His Majesty the power of Great Britain, all the said isles, and the said United States shall make it a in case of success, shall appertain to the common cause and aid each other mutually Crown of France. with their good offices, their counsels and Art. VIII.—Neither of the two parties their forces, according to the exigence of shall conclude either truce or peace with Great conjunctures, as becomes good and faithful Britain without the formal consent of the

allies. other first obtained; and they mutually enArt. II.—The essential and direct end of gage not to lay down their arms until the inthe present defensive alliance is to main- dependence of the United States shall have tain effectually the liberty, sovereignty and been formally or tacitly assured by the treaty independence absolute and unlimited, of the or treaties that shall terminate the war.

said United States, as well in matters of Art. IX.—The contracting parties declare,

government as of commerce. that being resolved to fulfil each on its own

Art. IIJ.—The two contracting parties part the clauses and conditions of the present shall each on its own part, and in the manner treaty of alliance, according to its own power

it may judge most proper, make all the ef- and circumstances, there shall be no afterforts in its power against their common en- claim of compensation on one side or the

emy, in order to attain the end proposed. other, whatever may be the event of the Art. IV.—The contracting parties agree war. that in case either of them should form any Art. X.—The Most Christian King and particular enterprise in which the concur- the United States agree to invite or admit rence of the other may be desired, the party other powers who may have received injuries whose concurrence is desired, shall readily, from England, to make common cause with and with good faith, join to act in concert them, and to accede to the present alliance, for that purpose, as far as circumstances and under such conditions as shall be freely agreed its own particular situation will permit; and to and settled between all the parties.

in that case, they shall regulate, by a par- Art. XI._—The two parties guarantee

ticular convention, the quantity and kind of mutually from the present time and forever succour to be furnished, and the time and against all other powers, to wit: The United manner of its being brought into action, as States to His Most Christian Majesty, the well as the advantages which are to be its present possessions of the Crown of France in

compensation. America, as well as those which it may acArt. V.—If the United States should think quire by the future treaty of peace: And His

fit to attempt the reduction of the British Most Christian Majesty guarantees on his power, remaining in the northern parts of part to the United States their liberty, sovAmerica, or the islands of Bermudas, those ereignty and independence, absolute and uncountries or islands, in case of success, shall limited, as well in matters of government as be confederated with or dependent upon the commerce, and also their possessions, and the

said United States. additions or conquests that their confederArt. VI.—The Most Christian King re- ation may obtain during the war, from any of nounces forever the possession of the is- the dominions now, or heretofore possessed lands of Bermudas, as well as of any part of | by Great Britain in North America, conformthe continent of North America, which be- able to the 5th and 6th articles above written,

fore the treaty of Paris in 1763, or in vir- the whole as their possessions shall be fixed tue of that treaty, were acknowledged to and assured to the said States, at the moment belong to the Crown of Great Britain, or to of the cessation of their present war with the United States, heretofore called British England. Colonies, or which are at this time, or have Art. XII.—In order to fix more precisely lately been under the power of the King and the sense and application of the preceding

Crown of Great Britain. article, the contracting parties declare, that

Art. VII.—If His Most Christian Maj- in case of a rupture between France and Engesty shall think proper to attack any of the land the reciprocal guarantee declared in the islands situated in the Gulph of Mexico, or © said article shall have its full force and effect

MASSACHUSETTS BILt OF RIGHTS 107 the moment such war shall break out; and if and England shall have ascertained their possuch rupture shall not take place, the mutual _ sessions. . . .

obligations of the said guarantee shall not Done at Paris, this sixth day of February, commence until the moment of the cessation one thousand seven hundred and seventyof the present war between the United States _ eight.

70. MASSACHUSETTS BILL OF RIGHTS 1780

(Poore, ed. The Federal and State Constitutions, Part. I, p. 956 ff.) The Constitution of Massachusetts of 1778 had and of forming a new constitution of civil contained no Bill of Rights; when submitted government, for ourselves and posterity; to the vote of the freemen it was defeated by and devoutly imploring His direction in so an overwhelming majority. John Adams was interesting a design, do agree upon, ordain, ae chief architect of the constitution of 1780. and establish, the following Declaration of

e was responsible whole Bill of Rich ve!as,the th Rights with the exception for of thethe article on 18of ts, the and Frame 0 overnment,

Religious Freedom. See S. E. Morison in Manual Constitution of the Commonwealth of of the Constitutional Convention of 1917; A. Massachusetts. Nevins, American States During and After the

Revolution, ch. v; C. F. Adams, Life of John PART THE FIRST Adams, ch. vi. On the Revolutionary Bills of A DECLARATION OF THE RIGHTS OF THE

Rights, see Doc. No. 67. INHABITANTS OF THE COMMONWEALTH The end of the institution, maintenance, of MassACHUSETTS and administration of government, is to se- Article I. All men are born free and cure the existence of the body-politic, to equal, and have certain natural, essential, protect it, and to furnish the individuals and unalienable rights; among which may who compose it with the power of enjoying be reckoned the right of enjoying and dein safety and tranquillity their natural rights, fending their lives and liberties; that of acand the blessings of life: and whenever these quiring, possessing, and protecting property; great objects are not obtained, the people in fine, that of seeking and obtaining their

7 have a right to alter the government, and to safety and happiness. take measures necessary for their safety, II. It is the right as well as the duty of

prosperity, and happiness. all men in society, publicly, and at stated The body-politic is formed by a voluntary seasons, to worship the Supreme Being, the association of individuals; it is a social com- great Creator and Preserver of the universe. pact by which the whole people covenants And no subject shall be hurt, molested, or with each citizen and each citizen with the restrained, in his person, liberty, or estate, whole people that all shall be governed by for worshipping God in the manner and sea-

certain laws for the common good. It is the son most agreeable to the dictates of his duty of the people, therefore, in framing a Own conscience; or for his religious proconstitution of government, to provide for fession of sentiments; provided he doth not _ an equitable mode of making laws, as well disturb the public peace, or obstruct others as for an impartial interpretation and a_ in their religious worship... . faithful execution of them; that every man As the happiness of a people and the good may, at all times, find his security in them. order and preservation of civil government We, therefore, the people of Massachu- essentially depend upon piety, religion, and setts, acknowledging, with grateful hearts, morality, and as these cannot be generally the goodness of the great Legislator of the diffused through a community but by the universe, in affording us, in the course of institution of the public worship of God and His Providence, an opportunity, deliberately of public instructions, in piety, religion, and and peaceably, without fraud, violence, or morality. Therefore to promote their happisurprise, of entering into an original, ex- ness and secure the good order and preservaplicit, and solemn compact with each other; tion of their government, the people of this

108 DocUMENTS OF AMERICAN HISTORY commonwealth have a right to invest their therefore the people alone have an incontestlegislature with power to authorize and re- ible unalienable, and indefeasible right to quire, and the legislature shail from time to institute government; and to reform, alter, time authorize and require, the several towns or totally change the same, when their pro... and other bodies—politic or religious tection, safety, prosperity, and happiness resocieties, to make suitable provision, at their quire it.

own expense, for the institution of the pub- VIII. In order to prevent those who are lic worship of God and the support and _ vested with authority from becoming opmaintenance of public Protestant teachers of | pressors, the people have a right, at such

piety, religion, and morality... . periods and in such manner as they shall esAnd the people of this commonwealth ... tablish by their frame of government, to do invest their legislature with authority to cause their public officers to return to private enjoin upon all the subjects an attendance life; and to fill up vacant places by certain upon the instructions of the public teachers and regular elections and appointments.

aforesaid... . IX. All elections ought to be free; and all And every denomination of Christians, de- the inhabitants of this commonwealth, havmeaning themselves peaceably and as good ing such qualifications as they shall establish

subjects of the commonwealth, shall be by their frame of government, have an equal equally under the protection of the law; right to elect officers, and to be elected, for and no subordination of any one sect or de- public employments. nomination to another shall ever be estab- XX. Each individual of the society has a

lished by law. right to be protected by it in the enjoyment IV. The people of this commonwealth of his life, liberty, and property. ... No

have the sole and exclusive right of govern- part of the property of any individual can, ing themselves, as a free, sovereign, and in- with justice, be taken from him, or applied dependent State, and do, and forever here- to public uses, without his own consent, or after shall, exercise and enjoy every power, that of the representative body of the peojurisdiction, and right, which is not, or may ple. . . . And whenever the public exigencies not hereafter be, by them expressly dele- require that the property of any individual gated to the United States of America, in should be appropriated to public uses, he

Congress assembled. shall receive a reasonable compensation

V. All power residing originally in the _ therefor. people, and being derived from them, the XI. Every subject of the commonwealth several magistrates and officers of govern- ought to find a certain remedy, by having ment, vested with authority, whether legis- recourse to the laws, for all injuries or lative, executive, or judicial, are their sub- wrongs which he may receive in his person,

stitutes and agents, and are at all times property, or character. He ought to obtain

accountable to them. right and justice freely, and without being VI. No man, nor corporation, or associa- obliged to purchase it; completely, and with-

tion of men, have any other title to obtain out any denial; promptly, and without de-

advantages, or particular and exclusive priv- lay, conformably to the laws. :

ileges, distinct from those of the community, XII. No subject shall be held to answer than what arises from the consideration of for any crimes or offence, until the same is services rendered to the public; and this title fully and plainly . . . described to him; or being in nature neither hereditary, nor trans- be compelled to accuse, or furnish evidence missible to children, or descendants, or re- against himself. And every subject shall have lations by blood; the idea of a man born a_ a right to produce all proofs that may be magistrate, lawgiver, or judge, is absurd and favorable to him; to meet the witnesses

unnatural. against him face to face, and to be fully

VII. Government is instituted for the heard in his defence by himself, or his councommon good, for the protection, safety, sel, at his election. And no subject shall be prosperity, and happiness of the people and arrested, . . . or deprived of his life, liberty, not for the profit, honor or private interest or estate, but by the judgment of his peers, or of any one man, family, or class of men; the law of the land.

MASSACHUSETTS BILL OF RIGHTS 109 And the legislature shall not make any law authority derived from it, to be exercised in that shall subject any person to a capital or such particular cases only as the legislature infamous punishment, excepting for the gov- _ shall expressly provide for.

ernment of the army and navy, without trial XXI. The freedom of deliberation,

by jury... . speech, and debate, in either house of the XIV. Every subject has a right to be se- legislature, is so essential to the rights of cure from all unreasonable searches, and the people, that it cannot be the foundation

seizures, of his person, his houses, his papers, of any accusation or prosecution, action or and all his possessions. . . . And no warrant complaint, in any other court or place whatought to be issued but in cases, and with the — soever.

formalities prescribed by the laws. XXII. The legislature ought frequently to

XV. In all controversies concerning prop- assemble for the redress of grievances, for erty, and in all suits between two or more correcting, strengthening, and confirming the persons, ... the parties have a right to a laws, and for making new laws, as the comtrial by jury; and this method of procedure mon good may require.

shall be held sacred... . XXIII. No subsidy, charge, tax, impost,

XVI. The liberty of the press is essential or duties ought to be established, fixed, laid, to the security of freedom in a state it ought or levied, under any pretext whatsoever, not, therefore, to be restricted in this com- without the consent of the people or their

monwealth. representatives in the legislature.

XVII. The people have a right to keep XXIV. Laws made to punish for actions

and to bear arms for the common defence. done before the existence of such laws, and And as, in time of peace, armies are danger- which have not been declared crimes by ous to liberty, they ought not to be main- preceding laws, are unjust, oppressive, and tained without the consent of the legislature; inconsistent with the fundamental principles and the military power shall always be held of a free government.

in an exact subordination to the civil au- XXV. No subject ought, in any case, or

thority, and be governed by it. in any time, to be declared guilty of treason XVIII. A frequent recurrence to the fun- or felony by the legislature.

damental principles of the constitution, and XAVI. No magistrate or court of law a constant adherence to those of piety, jus- shall demand excessive bail or sureties, imtice, moderation, temperance, industry and pose excessive fines, or inflict cruel or unfrugality, are absolutely necessary to pre- usual punishments. serve the advantages of liberty, and to main- XXVII. In time of peace, no soldier ought

tain a free government. The people ought, to be quartered in any house without the consequently, to have a particular attention consent of the owner; and in time of war, to all those principles, in the choice of their such quarters ought not to be made but by officers and representatives: and they have the civil magistrate, In a manner ordained a right to require of their lawgivers and _ by the legislature. magistrates an exact and constant observance AXVIII. No person can in any case be of them, in the formation and execution of subject to law-martial, or to any penalties the laws necessary for the good administra- or pains, by virtue of that law, except those

tion of the commonwealth. employed in the army or navy, and except

XIX. The people have a right, in an or- the militia in actual service, but by authority derly and peaceable manner to assemble to of the legislature. consult upon the common good; give instruc- XXIX. It is essential to the preservation tions to their representatives, and to request of the rights of every individual, his life of the legislative body, by the way of ad- liberty, property, and character, that there dresses, petitions, or remonstrances, redress be an impartial interpretation of the laws, of the wrongs done them, and of the griev- and administration of justice. It is the right

ances they suffer. of every citizen to be tried by judges as XX. The power of suspending the laws, free, impartial, and independent as the lot or the execution of the laws, ought never to of humanity will admit. It is, therefore, not be exercised but by the legislature, or by only the best policy, but for the security of

110 DOCUMENTS OF AMERICAN HIsToORY the rights of the people, and of every citizen, never exercise the executive and judicial that the judges of the supreme judicial court powers, or either of them: the executive should hold their offices as long as they be- shall never exercise the legislative and

have themselves well; and that they should judicial powers, or either of them: the have honorable salaries ascertained and es- judicial shall never exercise the legislative

tablished by standing laws. and executive powers, or either of them: to XXX. In the government of this com- the end it may be a government of laws

monwealth, the legislative department shall and not of men. , 71. THE QUOCK WALKER CASE Massachusetts, 1783 (A. B. Hart, ed. Commonwealth History of Massachusetts, Vol. IV, p. 37-8) The status of slavery in Massachusetts was, CusHinc, C. J. As to the doctrine of slavthroughout the Revolutionary period, a matter ery and the right of Christians to hold Afriof uncertainty. As early as 1770-—two years be- cans in perpetual servitude, and sell and treat fore Lord Mansfield’s decision in the famous them as we do our horses and cattle, that Somerset case, in the case of James v. Lechmere (it is true) has been heretofore countenanced the Superior Court of Massachusetts ruled that ; the plaintiff, a negro, was entitled to his freedom by the Province Laws formerly, but nowhere under the laws of the province and the terms of 3S 1t expressly enacted or established. It has the royal charter. In the course of his decision been a usage—a usage which took its origin in the case of Winchendon v. Hatfield, Chief from the practice of some of the European Justice Parsons said, “Several negroes born in nations, and the regulations of British govthis country of imported slaves demanded their ernment respecting the then Colonies, for the freedom of their masters by suit at law, and ob- benefit of trade and wealth. But ‘vhatever tained it by a judgement of court. The defence of sentiments have formerly prevailed in this the master was faintly made, for such was the ‘cul lid i 0 by the ex | temper of the times, that a restless, discontented particular or se Uh Upon us BY tne exaMple slave was worth little; and when his freedom of others, a different idea has taken place was obtained in a course of legal proceedings, the With the people of America, more favorable master was not holden for his future support if to the natural rights of mankind, and to that he became poor. But in the first action, involving natural, innate desire of Liberty, which with the right of the master, which came before the Heaven (without regard to color, complexion, Supreme Judicial Court after the establishment oy shape of noses-features) has inspired all of the Constitution, the Judges declared that by the human race. And upon this ground our virtue of the first article of the Declaration of Constitution of Government, by which the Rights, slavery in this State was no more’. This le of this C 0 Ith h 1 was the case of Quock Walker v. Nathaniel Jen- People OF MIs - ommonwea ave solemnny nison, 1783. Jennison, indicted for assault on bound themselves, sets out with declaring Walker, justified his assault on the ground that that all men are born free and equal—and Walker was his slave. The Court, however, that every subject is entitled to liberty, and speaking through Chief Justice Cushing, ruled to have it guarded by the laws, as well as life that the first article of the Declaration of Rights and property—and in short is totally rehad abolished slavery in Massachusetts. The pugnant to the idea of being born slaves. case was not reported, but in 1874 Chief Justice [yj being the case, I think the idea of slavHorace Gray read from the original notebook 41, is inconsistent with our own conduct and of Chiel J ustice Cushing, the following extract Constitution; and there can be no such thing from his decision. Sec, G. H. Moore, Notes on ; . the History of Slavery in Massachusetts; M.S. perpetual servitude of a rational creature, Locke, Anti-Slavery in America, 1619-1808; J. unless his liberty is forfeited by some crimiC. Hurd, The Law of Freedom and of Bondage, nial conduct or given up by personal consent

Vol. I, p. 263-4, Vol. II, p. 28-30. or contract . . . Verdict Guilty.

THe ARTICLES OF CONFEDERATION 111 72. THE ARTICLES OF CONFEDERATION Agreed to by Congress November 15, 1777; ratified and in force, March 1, 1781 (Richardson, ed. Messages and Papers, Vol. I, p. 9 ff.) Congress resolved June 11, 1776, that a com- Art. II. Each state retains its sovereignty, mittee should be appointed to draw up articles freedom and independence, and every Power, of confederation between the Colonics. A plan Jurisdiction and right, which is not by this

proposed by John Dickinson formed the basis Confederation expressly delegated to the of the articles as proposed to Congress and, United States, in Congress assembled.

after some debate and a few changes, adopted, Art. IIL The said states hereb 7 November 15, 1777. Representatives of the Me € sald states nereby severally States signed the Articles during 1778 and 1779; enter into a firm league of fmendship with

Maryland alone refused to ratify the Articles €ach other, for their common defence, the until Congress had arrived at some satisfactory security of their Liberties, and their mutual solution of the land question. The debates on and general welfare, binding themselves to the Articles, Jefferson’s Notes on the Debates, assist each other, against all force offered to,

and the Official Letter of Congress accompany- or attacks made upon them, or any of ing the Articles, can be found in Elliot’s De- them, on account of religion, sovereignty, bates (1861 ed.) Vol. I, p. 69 ff. The Articles of trade, or any other pretence whatever.

Confederation constituted the first effort of Art. IV. The bet | 4 ;

Americans to solve the problem of imperial Art. LY. te De ler to secure an perpetu

order, and should be studied in comparison with te mutual friendship and intercourse among

the Albany Plan of Union and the Constitution. the people of the different states in this On the Articles of Confederation see, R. Froth- union, the free inhabitants of each of these ingham, Rise of the Republic of the United states, paupers, vagabonds and_ fugitives States, ch. xii; G. Bancroft, History Author’s from Justice excepted, shall be entitled to all last hin vol Vs ch. xvian i C.onstitubion, Meauehhy privileges and1, immunities onjederation Cn. . . . of free citizens in Curtis, Constitutional History of the United une Severs howe fee. ingress ret sewrese te and from any other state, and shall enjoy To ALL TO wHOM these Presents shall come, therein all the privileges of trade and comwe the undersigned Delegates of the States merce, subject to the same duties, imposiaffixed to our Names send greeting. Whereas’ tions and restrictions as the inhabitants

States, Vol. I. | ,

the Delegates of the United States of thereof respectively, provided that such reAmerica in Congress assembled did on the © striction shall not extend so far as to prefifteenth day of November in the Year of vent the removal of property imported into our Lord One Thousand Seven Hundred and_ any state, to any other state of which the Seventy seven, and in the Second Year of Owner is an inhabitant; provided also that the Independence of America agree to cer- no imposition, duties or restriction § shall tain articles of Confederation and perpetual be laid by any state, on the property of the Union between the States of Newhampshire, united states, or either of them. Massachusetts-bay, Rhodeisland and Provi- If any Person guilty of, or charged with dence Plantations, Connecticut, New York, treason, felony, or other high misdemeanor New Jersey, Pennsylvania, Delaware, Mary- in any state, shall flee from Justice, and be

land, Virginia, North-Carolina, South- found in any of the united states, he shall Carolina and Georgia in the Words follow- upon demand of the Governor or executive ing, viz. ‘“‘Articles of Confederation and power, of the state from which he fled, be perpetual Union between the states of New- delivered up and removed to the state havhampshire, Massachusetts-bay, Rhodeisland ing jurisdiction of his offence. and Providence Plantations, Connecticut, Full faith and credit shall be given in each New-York, New-Jersey, Pennsylvania, Dela- of these states to the records, acts and ware, Maryland, Virginia, North-Carolina, judicial proceedings of the courts and magis-

South-Carolina and Georgia. trates of every other state.

Art. I. The Stile of this confederacy shall Art. V. For the more convenient manage-

be “The United States of America.” ment of the general interests of the united

112 DOCUMENTS OF AMERICAN HIsToRyY States, delegates shall be annually appointed No state shall lay any imposts or duties, in such manner as the legislature of each which may interfere with any stipulations state shall direct, to meet in Congress on in treaties, entered into by the united states the first Monday in November, in every in congress assembled, with any king, prince year, with a power reserved to each state, to or state, in pursuance of any treaties already recal its delegates, or any of them, at any proposed by congress, to the courts of France

time within the year, and to send others and Spain.

in their stead, for the remainder of the No vessels of war shall be kept up in time |

Year, of peace by any state, except such number

No state shall be represented in Congress only, as shall be deemed necessary by the by less than two, nor by more than seven united states in congress assembled, for the Members; and no person shall be capable defence of such state, or its trade; nor shall of being a delegate for more than three any body of forces be kept up by any state, years in any term of six years; nor shall in time of peace, except such number only, any person, being a delegate, be capable of as in the judgment of the united states, in holding any office under the united states, congress assembled, shall be deemed requisite

for which he, or another for his benefit re- to garrison the forts necessary for the decelves any salary, fees or emolument of any fence of such state; but every state shall

kind. always keep up a well regulated and disci-

Each state shall maintain its own dele- plined militia, sufficiently armed and acgates in a meeting of the states, and while coutred, and_ shall provide and constantly they act as members of the committee of have ready for use, In public stores, a due

the states. number of field pieces and tents, and a

In determining questions in the united proper quantity of arms, ammunition and states, in Congress assembled, each state camp equipage.

shall have one vote. No state shall engage in any war without

Freedom of speech and debate in Con- the consent of the united states in congress gress shall not be impeached or questioned assembled, unless such state be actually inin any Court, or place out of Congress, and vaded by enemies, or shall have received the members of congress shall be protected certain advice of a resolution being formed in their persons from arrests and imprison- by some nation of Indians to invade such ments, during the time of their going to and _ state, and the danger is so imminent as not from, and attendance on congress, except for to admit of a delay, till the united states treason, felony, or breach of the peace. in congress assembled can be consulted: nor

Art. VI. No state without the Consent of shall any state grant commissions to any the united states in congress assembled, shall ships or vessels of war, nor letters of marque send any embassy to, or receive any embassy __or reprisal, except it be after a declaration

from, or enter into any conference, agree- of war by the united states in congress asment, or alliance or treaty with any King, sembled, and then only against the kingdom prince or state; nor shall any person holding or state and the subjects thereof, against any office of profit or trust under the united which war has been so declared, and under states, or any of them, accept of any present, such regulations as shall be established by emolument, office or title of any kind what- the united states in congress assembled, unever from any king, prince or foreign state; less such state be infested by pirates, in nor shall the united states in congress as- which case vessels of war may be fitted out sembled, or any of them, grant any title of for that occasion, and kept so long as the

nobility. danger shall continue, or until the united

No two or more states shall enter into states in congress assembled shall determine any treaty, confederation or alliance what- otherwise. ever between them, without the consent of Art. VII. When land-forces are raised by the united states in congress assembled, any state for the common defence, all offispecifying accurately the purposes for which cers of or under the rank of colonel, shall

the same is to be entered into, and how’ be appointed by the legislature of each

long it shall continue. state respectively by whom such forces shall

THe ARTICLES OF CONFEDERATION 113 be raised, or in such manner as such state tion or any other cause whatever; which aushall direct, and all vacancies shall be filled thority shall always be exercised in the manup by the state which first made the ap- ner following. Whenever the legislative or

pointment. executive authority or lawful agent of any Art. VIII. All charges of war, and all state in controversy with another shall pre-

other expences that shall be incurred for the sent a petition to congress. stating the mat-

common defence or general welfare, and ter in question and praying for a hearing, allowed by the united states in congress as- notice thereof shall be given by order of sembled, shall be defrayed out of a common congress to the legislative or executive au-

treasury, which shall be supplied by the thority of the other state in controversy, several states, in proportion to the value of and a day assigned for the appearance of all land within each state, granted to or sur- the parties by their lawful agents, who shall veyed for any Person, as such land and the then be directed to appoint by joint conbuildings and improvements thereon shall sent, commissioners or judges to constitute be estimated according to such mode as the a court for hearing and determining the mat-

united states in congress assembled, shall ter in question: but if they cannot agree, from time to time direct and appoint. The congress shall name three persons out of taxes for paying that proportion shall be each of the united states, and from the laid and levied by the authority and direc- list of such persons each party shall altertion of the legislatures of the several states nately strike out one, the petitioners beginwithin the time agreed upon by the united _ ning, until the number shall be reduced to

states in congress assembled. thirteen; and from that number not less

Art. IX. The united states in congress as- than seven, nor more than nine names as sembled, shall have the sole and exclusive congress shall direct, shall in the presence right and power of determining on peace and of congress be drawn out by lot, and the war, except in the cases mentioned in the persons whose names shall be so drawn or sixth article—of sending and receiving am- any five of them, shall be commissioners or bassadors—entering into treaties and alli- judges, to hear and finally determine the ances, provided that no treaty of commerce controversy, so always as a major part of shall be made whereby the legislative power the judges who shall hear the cause shall of the respective states shall be restrained agree in the determination: and if either from imposing such imposts and duties on party shall neglect to attend at the day foreigners, as their own people are subjected appointed, without shewing reasons, which to, or from prohibiting the exportation or congress shall judge sufficient, or being importation of any species of goods or com-__ present shall refuse to strike, the congress modities whatsoever—of establishing rules for shall proceed to nominate three persons out deciding in all cases, what captures on land of each state, and the secretary of congress or water shall be legal, and in what man- — shall strike in behalf of such party absent or

ner prizes taken by land or naval forces in refusing; and the judgment and sentence of the service of the united states shall be di- the court to be appointed, in the manner vided or appropriated.—of granting letters before prescribed, shall be final and concluof marque and reprisal in times of peace— sive; and if any of the parties shall refuse appointing courts for the trial of piracies to submit to the authority of such court, or and felonies committed on the high seas and ___ to appear to defend their claim or cause, the

establishing courts for receiving and deter- court shall nevertheless proceed to promining finally appeals in all cases of cap- nounce sentence, or Judgment, which shall tures, provided that no member of congress in like manner be final and decisive, the shall be appointed a judge of any of the judgment or sentence and other proceedings

said courts. being in elther case transmitted to congress, The united states in congress assembled and lodged among the acts of congress for shall also be the last resort on appeal in the security of the parties concerned: proall disputes and differences now subsisting vided that every commissioner, before he or that hereafter may arise between two _ sits in judgment, shall take an oath to be or more states concerning boundary, jurisdic- administered by one of the judges of the

114 DOCUMENTS OF AMERICAN HisToRy supreme or superior court of the state, where civil officers as may be necessary for manthe cause shall be tried, “well and truly to aging the general affairs of the united states

hear and determine the matter in question, under their direction—to appoint one of according to the best of his judgment, with- their number to preside, provided that no out favour, affection or hope of reward:” person be allowed to serve in the office of provided also that no state shall be deprived president more than one year in any term of

of territory for the benefit of the united three years; to ascertain the necessary sums

states. of Money to be raised for the service of

All controversies concerning the private the united states, and to appropriate and apright of soil claimed under different grants ply the same for defraying the public ex-

of two or more states, whose jurisdictions as pences—to borrow money, or emit bills on they may respect such lands, and the states the credit of the united states, transmitting

which passed such grants are adjusted, the every half year to the respective states an said grants or either of them being at the account of the sums of money so borrowed same time claimed to have originated ante- or emitted,—to build and equip a navy— cedent to such settlement of jurisdiction, to agree upon the number of land forces, shall on the petition of either party to the and to make requisitions from each state congress of the united states, be finally de- for its quota, in proportion to the number termined as near as may be in the same of white inhabitants in such state; which manner as is before prescribed for deciding requisition shall be binding, and thereupon disputes respecting territorial jurisdiction be- the legislature of each state shall appoint the

tween different states. regimental officers, raise the men and cloath,

The united states in congress assembled arm and equip them in a soldier like manshall also have the sole and exclusive right ner, at the expence of the united states, and and power of regulating the alloy and value the officers and men so cloathed, armed and of coin struck by their own authority, or equipped shall march to the place appointed, by that of the respective states—fixing the and within the time agreed on by the united standard of weights and measures through- states in congress assembled: But if the out the united states——regulating the trade united states in congress assembled shall, on | and managing all affairs with the Indians, consideration of circumstances judge proper

not members of any of the states, provided that any state should not raise men, or that the legislative right of any state within should raise a smaller number than its quota,

its own limits be not infringed or violated— and that any other state should raise a establishing and regulating post-offices from greater number of men than the quota one state to another, throughout all the thereof, such extra number shall be raised, united states, and exacting such postage on officered, cloathed, armed and equipped in the

the papers passing thro’ the same as may same manner as the quota of such state, be requisite to defray the expences of the unless the legislature of such state shall said office—appointing all officers of the land judge that such extra number cannot be forces, in the service of the united states, safely spared out of the same, in which case excepting regimental officers.—appointing all they shall raise officer, cloath, arm and equip the officers of the naval forces, and commis- as many of such extra number as they judge sioning all officers whatever in the service of can be safely spared. And the officers and

the united states—making rules for the men so cloathed, armed and equipped, shall government and regulation of the said land march to the place appointed, and within the and naval forces, and directing their opera- time agreed on by the united states in con-

tions. gress assembled.

The united states in congress assembled The united states in congress assembled

shall have authority to appoint a committee, shall never engage in a war, nor grant letto sit in the recess of congress, to be de- ters of marque and reprisal in time of peace, nominated ‘‘A Committee of the States,” and nor enter into any treaties or alliances, nor to consist of one delegate from each state; coin money, nor regulate the value thereof, and to appoint such other committees and _ nor ascertain the sums and expences neces-

THE ARTICLES OF CONFEDERATION 115 sary for the defence and welfare of the Art. XII. All bills of credit emitted, monunited states, or any of them, nor emit bills, ies borrowed and debts contracted by, or

nor borrow money on the credit of the under the authority of congress, before the united states, nor appropriate money, nor assembling of the united states, in pursuance agree upon the number of vessels of war, to of the present confederation, shall be deemed be built or purchased, or the number of land and considered as a charge against the or sea forces to be raised, nor appoint a united states, for payment and satisfaction commander in chief of the army or navy, whereof the said united states, and the public unless nine states assent to the same: nor faith are hereby solemnly pledged. shall a question on any other point, except Art. XIII. Every state shall abide by the for adjourning from day to day be deter- determinations of the united states in conmined, unless by the votes of a majority of | gress assembled, on all questions which by the united states in congress assembled. this confederation are submitted to them. The congress of the united states shall And the Articles of this confederation shall have power to adjourn to any time within be inviolably observed by every state, and the year, and to any place within the united the union shall be perpetual; nor shall any states, so that no period of adjournment be alteration at any time hereafter be made in

for a longer duration than the space of six any of them; unless such alteration be Months, and shall publish the Journal of agreed to in a congress of the united states, their proceedings monthly, except such parts and be afterwards confirmed by the legisla-

thereof relating to treaties, alliances or tures of every state.

military operations as in their judgment re- AND WHEREAS it hath pleased the Great quire secresy; and the yeas and nays of the Governor of the World to incline the hearts delegates of each state on any question shall of the legislatures we respectively represent be entered on the Journal, when it is desired in congress, to approve of, and to authorize by any delegate; and the delegates of a state, _us to ratify the said articles of confederation or any of them, at his or their request shall and perpetual union. KNow Ye that we the

be furnished with a transcript of the said under-signed delegates, by virtue of the Journal, except such parts as are above ex- power and authority to us given for that cepted, to lay before the legislatures of the purpose, do by these presents, in the name

several states. and in behalf of our respective constituents, Art. X. The committee of the states, or fully and entirely ratify and confirm each

any nine of them, shall be authorised to exe- and every of the said articles of confederacute, in the recess of congress, such of the tion and perpetual union, and all and singular powers of congress as the united states in the matters and things therein contained: congress assembled, by the consent of nine And we do further solemnly plight and enstates, shall from time to time think expedi- gage the faith of our respective constituents,

ent to vest them with; provided that no that they shall abide by the determinations power be delegated to the said committee, of the united states in congress assembled, for the exercise of which, by the articles of on all questions, which by the said confedera. confederation, the voice of nine states in the tion are submitted to them. And that the congress of the united states assembled is articles thereof shall be inviolably observed

requisite. by the states we respectively represent, and Art. XI. Canada acceding to this con- that the union shall be perpetual. In Wit-

federation, and joining in the measures of ness whereof we have hereunto set our hands the united states, shall be admitted into, and jp Congress. Done at Philadelphia in the entitled to all the advantages of this union: gtate of Pennsylvania the ninth Day of July but no other colony shall be admitted into jn the Year of our Lord one Thousand seven the same, unless such admission be agreed to Hundred and Seventy-eight, and in the third

by nine states. year of the independence of America.

116 DOCUMENTS OF AMERICAN History Jostan BARTLETT On the part & be- Ros? Morris

half of the State DANreu. RoBERDEA JouN WENTWoRTH ; oN iH AB 0 On the part and beJun" August 8" 1778 of New Hamp- Jon4 Bayarp Situ. half of the State

shire WILLIAM CLINGAN . Josepx Rerp 224 of Pennsylvania

Joun Hancock July 1778

SAMUEL ADAMS On the part and bee Tuo M:Kran Feby

ELBRIDGE GERRY half of The State 12 1779 | On the part & beFRANCIS DANA of Massachusetts Joun DICKINSON half of the State

JAmMes LovELL Bay May 5t® 1779 of Delaware SAMUEL HOoLTEN NIcHOLAS VAN Dyke,

JoHN HANSON On the part and be-

Onhalf theof part be-Danzet MarchCarroii 1 1781d° } half of the State WILLIAM ELLERY theand State of Maryland Henry MarcHant of Rhode-Island Ricuarp Henry L

Joun CoLuins and Providence EE

Plantations JOHN BANISTER On the Tuomas ADAMS n “Partofand Behalf the

R JN® HARVIE of Virginia Coen HERMAN FrancisState LIGHTFOOT are 5 I~

TON UNTINS- | On the part and be- LEE OLIVER WOLCOTT half of the State JoHN PENN July On the part and

Titus HosMER of Connecticut 218 1778 Behalf of the

ANDREW ADAMS Corns HARNETT State of No Jn° WILLIAMS Carolina

JAS DUANE On the Part and Henry Laurens |

S Lr Fras Lewis Behalf of the WILLIAM HENRY On the part & be-

W™ DUER New DRAYTON alt halfoff the th Statet Gouv MorrisState YorkofJn° MaTHEWwS of South-Carolina

0 th NATH" SCUDDER y half of the State Rico» Hutson

On the Part and in Tos Heywarp Jun’

JNo WITHERSPOON eon of i New J ‘Tul MN ATON 24 On the part & be-

Jersey. Nov" 26, Epw°® Trxrarr of Georgia 1778.— Epw2 LANGWORTHY 6

73. COMMONWEALTH v. CATON et. At. Virginia Reports, 4 Call, 5 1782

John Caton was condemned for treason by the the senate had not concurred in it, and the General Court of Virginia, under the act of the general court adjourned the case for novelty assembly concerning that offence, passed in and difficulty, to the court of appeals. This is 1776, which took from the executive the power one of the very earliest cases in the United

of granting pardon in such cases. The House of States where the question of the validity of an delegates, by resolution of June, 1782, granted unconstitutional act was considered. It is of him a pardon and sent it to the senate for interest that John Marshall studied law under concurrence, which was refused. Caton con- Judge Wythe.

tinued in jail under the sentence, and in October, Wyre, J.: Among all the advantages 1782, the attorney-general moved in the general hich h . . , kind. { th court that execution of the judgement might be wale ave arisen to mankxin , Form ; C awarded. The prisoner pleaded the pardon ‘Study of letters, and the universal diffusion granted by the house of delegates; the attorney- Of knowledge, there is none of more imgeneral denied the validity of the pardon, as portance, than the tendency they have had

TREATY OF PEACE WITH GREAT BRITAIN 117 to produce discussions upon the respective vidual against the rapacity of the soverrights of the sovereign and the subject; and eign, surely it is equally mine to protect upon the powers which the different branches one branch of the legislature and, conseof the government may exercise. For, by this quently, the whole community, against the means, tyranny has been sapped, the depart- usurpations of the other: and whenever the ments kept within their own spheres, the proper occasion occurs, I shall feel the duty ; citizens protected, and general liberty pro- and fearlessly perform it. Whenever traitors moted. But this beneficial result attains to shall be fairly convicted, by the verdict of higher perfection, when those who hold the their peers, before the competent tribunal,

purse and the sword, differing as to the if one branch of the legislature, without the powers which each may exercise, the tri- concurrence of the other, shall attempt to bunals, who hold neither, are called upon to rescue the offenders from the sentence of declare the law impartially between them. the law, I shall not hesitate, sitting in this For thus the pretensions of each party are place, to say to the general court, Fiat fairly examined, their respective powers as- justitia, ruat coelum; and, to the usurping certained, and the boundaries of authority branch of the legislature, you attempt worse peaceably established. Under these impres- than a vain thing; for although you cannot sions I approach the question which has been _ succeed, you set an example which may con-

submitted to us: and although it was said vulse society to its centre. Nay more, if the the other day by one of the judges that, whole legislature, an event to be deprecated, imitating that great and good man Lord should attempt to overleap the bounds preHale, he would sooner quit the bench than scribed to them by the people, I, in addetermine it, I feel no alarm; but will meet ministering the public justice of the country, the crisis as I ought; and in the language of _ will meet the united powers at my seat in my oath of office, will decide it according this tribunal; and, pointing to the constitu-

to the best of my skill and judgement. tion, will say to them, here is the limit of

I have heard of an English chancellor who your authority; and, hither shall you go,

said, and it was nobly said, that it was his but no further... . duty to protect the rights of the subject I am therefore of the opinion that the against the encroachments of the crown; and pardon pleaded by the prisoners, is not that he would do it at every hazard. But if valid; and that it ought to be so certified it was his duty to protect a solitary indi- to the general court.

74. TREATY OF PEACE WITH GREAT BRITAIN September 3, 1783 (Malloy, ed. Treaties, Conventions, etc., Vol. I, p. 586 ff.) The surrender of Cornwallis at Yorktown, Octo- Vol. I, chs. iv-v; A. C. McLaughlin, Confedera-

ber 19, 1781, brought an end to the British tion and Constitution, chs. i-ii; E. G. Petty,

effort to subdue the American colonies. February Lord Fitzmaurice, Life of William, Earl of 27, 1782, a motion urging King George to end Shelburne, Vol. III. the war passed the House of Commons; a month later Lord North resigned, and the Rockingham

Ministry entered into negotiations for a defini- ... Art. I.—His Britannic Majesty active peace. Congress appointed John Adams, knowledges the said United States, viz. New Benjamin Franklin, John Jay, Henry Laurens, Hampshire, Massachusetts Bay, Rhode Isand Thomas Jefferson to conduct the negotia- land, and Providence Plantations, ConnectiHons but Jefferson did not leave America, and cut, New York, New Jersey, Pennsylvania

aurens released prison too latechief. to Delaware. Marvland. Virei .N, take partwas in the peacefrom conferences. The yeangs NITEIDIA, orth Caroburden of the negotiations fell upon Franklin, lina, South Carolina, and Georgia, to be free, and the treaty is largely a tribute to his shrewd- S°VETE18N and independent States; that he ness, persistence, and sagacity. On the Treaty, treats with them as such, and for himself, see the scholarly account by J. B. Scott, in his heirs and SUCCESSOXS, relinquishes all S. F. Bemis, ed. American Secretaries of State, claims to the Government, proprietary and

118 DOCUMENTS OF AMERICAN HISTORY territorial rights of the same, and every Mary’s River to the Atlantic Ocean. East,

part thereof. by a line to be drawn along the middle of Art. II.—And that all disputes which the river St. Croix, from its mouth in the might arise in future, on the subject of the Bay of Fundy to its source, and from its boundaries of the said United States may source directly north to the aforesaid Highbe prevented, it is hereby agreed and de- lands, which divide the rivers that fall into clared, that the following are, and shall be the Atlantic Ocean from those which fall their boundaries, viz.: From the northwest into the river St. Lawrence; comprehendangle of Nova Scotia, viz.: that angle which — ing all islands within twenty leagues of any

is formed by a line drawn due north from part of the shores of the United States, and the source of Saint Croix River to the High- lying between lines to be drawn due east lands; along the said Highlands which di- from the points where the aforesaid bounvide those rivers that empty themselves into daries between Nova Scotia on the one part, the river St. Lawrence, from those which and East Florida on the other, shall respec-

fall into the Atlantic Ocean, to the north- tively touch the Bay of Fundy and the westernmost head of Connecticut River; Atlantic Ocean; excepting such islands as thence down along the middle of that river, now are, or heretofore have been, within

to the forty-fifth degree of north latitude; the limits of the said province of Nova from thence, by a line due west on said Scotia. latitude, until it strikes the river Iroquois Art. III.—It is agreed that the people of or Cataraquy; thence along the middle of the United States shall continue to enjoy said river into Lake Ontario, through the unmolested the right to take fish of every middle of said lake until it strikes the com- kind on the Grand Bank, and on all the munication by water between that lake and other banks of Newfoundland; also in the Lake Erie; thence along the middle of said Gulph of Saint Lawrence, and at all other communication into Lake Erie, through the places in the sea where the inhabitants of middle of said lake until it arrives at the both countries used at any time heretofore water communication between that lake and to fish. And also that the inhabitants of the

Lake Huron: thence along the middle of United States shall have liberty to take

said water communication into the Lake fish of every kind on such part of the coast Huron; thence through the middle of said of Newfoundland as British fishermen shall lake to the water communication between use (but not to dry or cure the same on that lake and Lake Superior; thence through that island) and also on the coasts, bays Lake Superior northward of the Isles Royal and creeks of all other of His Britannic and Phelipeaux, to the Long Lake; thence Majesty’s dominions in America; and that through the middle of said Long Lake, and the American fishermen shall have liberty the water communication between it and to dry and cure fish in any of the unsettled the Lake of the Woods, to the said Lake of bays, harbours and creeks of Nova Scotia, the Woods: thence through the said lake Magdalen Islands, and Labrador, so long as to the most northwestern point thereof, and the same shall remain unsettled; but so soon from thence on a due west course to the as the same or either of them shall be setriver Mississippi; thence by a line to be tled, it shall not be lawful for the said fish-

drawn along the middle of the said river ermen to dry or cure fish at such settleMississippi until it shall intersect the ments, without a previous agreement for northernmost part of the thirty-first degree that purpose with the inhabitants, proprieof north latitude. South, by a line to be tors or possessors of the ground.

drawn due east from the determination of Art. IV.—It is agreed that creditors on the line last mentioned, in the latitude of either side shall meet with no lawful imthirty-one degrees north of the Equator, to pediment to the recovery of the full value

the middle of the river Appalachicola or in sterling money, of all bona fide debts

Catahouche; thence along the middle thereof heretofore contracted.

to its junction with the Flint River; thence Art. V.—It is agreed that the Congress straight to the head of St. Mary’s River; _ shall earnestly recommend it to the legislaand thence down along the middle of St. tures of the respective States, to provide

RESOLUTION OF CONGRESS ON PUBLIC LANDS 119 for the restitution of all estates, rights and his person, liberty or property; and that properties which have been confiscated, be- those who may be in confinement on such longing to real British subjects, and also of charges, at the time of the ratification of the estates, rights and properties of persons the treaty in America, shall be immediately

resident in districts in the possession of set at liberty, and the prosecutions so comHis Majesty’s arms, and who have not borne menced be discontinued.

arms against the said United States. And that Art. VII.—There shall be a firm and persons of any other description shall have perpetual peace between His Britannic free liberty to go to any part or parts of Majesty and the said States, and between any of the thirteen United States, and therein the subjects of the one and the citizens of to remain twelve months, unmolested in their the other, wherefore all hostilities, both by endeavours to obtain the restitution of such sea and land, shall from henceforth cease; of their estates, rights and properties as may All prisoners on both sides shall be set at

have been confiscated; and that Congress liberty, and His Britannic Majesty shall, shall also earnestly recommend to the with all convenient speed, and without causseveral States a reconsideration and revision ing any destruction, or carrying away any of all acts or laws regarding the premises, so negroes or other property of the American as to render the said laws or acts perfectly inhabitants, withdraw all his armies, garconsistent, not only with justice and equity, risons and fleets from the said United States,

but with that spirit of conciliation which, and from every post, place and harbour on the return of the blessings of peace, within the same; leaving in all fortifications

should universally prevail. And that Con- the American artillery that may be therein; gress shall also earnestly recommend to the And shall also order and cause all archives, several States, that the estates, rights and records, deeds and papers, belonging to any properties of such last mentioned persons, of the said States, or their citizens, which, shall be restored to them, they refunding to in the course of the war, may have fallen any persons who may be now in possession, into the hands of his officers, to be forth-

the bona fide price (where any has been’ with restored and deliver’d to the proper given) which such persons may have paid States and persons to whom they belong. on purchasing any of the said lands, rights ArT. VIII.—The navigation of the river or properties, since the confiscation. And it Mississippi, from its source to the ocean, is agreed, that all persons who have any shall forever remain free and open to the interest in confiscated lands, either by debts, subjects of Great Britain, and the citizens of marriage settlements or otherwise, shall the United States.

meet with no lawful impediment in the Art. IX.—In case it should so happen

prosecution of their just rights. that any place or territory belonging to

Art. VI.—That there shall be no future Great Britain or to the United States, should confiscations made, nor any prosecutions have been conquer’d by the arms of either commenced against any person or persons from the other, before the arrival of the for, or by reason of the part which he or © said provisional articles in America, it is they may have taken in the present war; agreed, that the same shall be restored withand that no person shall, on that account, out difficulty, and without requiring any suffer any future loss or damage, either in compensation... .

75. RESOLUTION OF CONGRESS ON PUBLIC LANDS October 10, 1780 (Journals of the Continental Congress, ed. by G. Hunt, Vol. AVI, p. 915) The ownership, control and administration of lands to settlement, aroused general resentment the western lands was one of the most acute and With the outbreak of the Revolution, the States perplexing of the problems of the old Empire. resumed their titles to their western lands Many By their charters, many of the American colonies of these titles were conflicting and uncertain were entitled to lands west of the Appalachians, and there was a widespread feeling especiall and the Proclamation of 1763, closing these in those States that did not have title to western

120 DOCUMENTS OF AMERICAN HisToRy lands, that these lands should be surrendered to formed shall contain a suitable extent of don of Ocer 10 i, ees the vy CEO, sot less than one unded_ no a ) pollcy more than one hundred and fifty miles which it would follow toward any lands ceded square. or a r theret t

to it by the States. See, in this connection, and 4 oa Ss nea CRETO aS CIFCUTASTANCES

for references, Docs. No. 76-79. will admit;

That the necessary and reasonable ex-

pences which any particular State shall have

Resolved, that the unappropriated lands incurred since the commencement of the that may be ceded or relinquished to the present war, in subduing any of the British — United States, by any particular States, pur- posts, or in maintaining forts or garrisons suant to the recommendation of Congress within and for the defence, or in acquiring on the 6 day of September last, shall be dis- any part of the territory that may be ceded posed of for the common benefit of the or relinquished to the United States, shall United States, and be settled and formed be reimbursed; into distinct republican States, which shall That the said lands shall be granted and become members of the Federal Union, and settled at such times and under such regulashall have the same rights of sovereignty, tions as shall hereafter be agreed on by the

freedom and independence, as the other United States in Congress assembled, or States; that each State which shall be so any nine or more of them. 76. VIRGINIA’S CESSION OF WESTERN LANDS TO THE UNITED STATES December 20, 1783 (F. N. Thorpe, ed. Federal and State Constitutions, Vol. II, p. 955-6) The Resolution of Congress of October 10, 1780 their respective claims for the common and the attitude of Maryland toward ratification benefit of the Union:

of the Arties of Bev of a power 2, And whereas commonwealth Impulse toContederation the cession the Sec. land claims ofthisthe ..

States to the United States. New York and ea on the 2d day of January, in the yey Connecticut expressed their willingness to cede , yleld to the Congress of the United their claims as early as 1781. The following year States, for the benefit of the said States, Congress accepted the New Vork cession. The 4! right, title, and claim which the said claims of Virginia were the most extensive and Commonwealth had to the territory norththe strongest of those of any State: they were west of the river Ohio, subject to the conbased not only on charter rights but on the ditions annexed to the said act of cession: achievements of Clark in the Northwest. Vir- Sec. 3. And whereas the United States in ginia's first cession, in 1781, was coupled with Congress assembled have, by their act of conditions that were not acceptable to Congress: the 13th of September last, stipulated the the cession of 1783 was promptly accepted, and terms on which they agreed to accept the the cession reserving military bounty lands cession of this State, should the legislature north of the Ohio are of particular importance, 2Pprove thereof, which terms, although they

the deed signed March 1, 1784. The clauses in . ;

See, A. C. McLaughlin, Confederation and do not come up to the proposition of this

Constitution, ch. vii; B. A. Hinsdale, The Old commonwealth, are conceived, on the whole, Northwest; F. L. Paxson, History of the Ameri- to approach so nearly to them as to induce

can Frontier, chs. v-vi. this State to accept thereof, in full confidence that Congress will, in justice to this

Sec. 1. Whereas the Congress of the State for the liberal cession she hath made, _ United States did, by their act of the 6th earnestly press upon the other States claimday of September, in the year 1780, recom- ing large tracts of waste and uncultivated mend to the several States in the Union, territory the propriety of making cessions having claims to waste and unappropriated equally liberal for the common benefit and lands in the western country, a liberal ces- support of the Union:

sion to the United States of a portion of Be it enacted by the general assembly,

REpoRT OF GOVERNMENT FOR WESTERN TERRITORY 12] That it shall and may be lawful for the dele- of land, promised by this State, shall be algates of this State to the Congress of the lowed and granted to the then Colonel, now United States, ... to... make over unto General, George Rogers Clark, and to the offithe United States, in Congress assembled, for cers and soldiers of his regiment who marched

the benefit of the said States, all right, title, with him when the posts of Kaskaskies and and claim, as well of soil as jurisdiction, which Saint Vincents were reduced, and to the this commonwealth hath to the territory or officers and soldiers that have been since Intract of country within the limits of the Vir- corporated into the said regiment, to be laid ginia charter, situate, lying, and being to the off in one tract, the length of which not to northwest of the river Ohio, subject to the exceed double the breadth, in such place on terms and conditions contained in the before- the northwest side of the Ohio as a majority recited act of Congress of the 13th day of of the officers shall choose, and to be afterSeptember last, that is to say: Upon condi- wards divided among the said officers and soltion that the territory so ceded shall be laid diers in due proportion according to the law out and formed into States, containing a suit- of Virginia. That in case the quantity of good able extent of territory, not less than one lands on the southeast side of the Ohio, upon hundred nor more than one hundred and fifty the waters of Cumberland River, and between miles square, or as near thereto as circum- Green River and Tennessee River, which stances will admit: and the States so formed have been reserved by law for the Virginia shall be distinct republican States, and ad- troops upon continental establishment, should, mitted members of the Federal Union, having from the North Carolina line bearing in furthe same rights of sovereignty, freedom, and ther upon the Cumberland lands than was independence as the other States; that the expected, prove insufficient for their legal necessary and reasonable expences incurred bounties, the deficiency should be made up by this State in subduing any British posts, to the said troops in good lands, to be laid

or in maintaining forts or garrisons within off between the rivers Scioto and Little

and for the defence, or in acquiring any part Miami, on the northwest side of the river of the territory so ceded or relinquished, shall Ohio, in such proportions as have been enbe fully reimbursed by the United States; and gaged to them by the laws of Virginia. That that one commissioner shall be appointed by all the lands within the territory so ceded Congress, one by this commonwealth and an- to the United States, and not reserved for or other by those two commissioners, who, or a appropriated to any of the before-mentioned majority of them, shall be authorized andem- purposes, or disposed of in bounties to the powered to adjust and liquidate the account officers and soldiers of the American Army, of the necessary and reasonable expenses in- shall be considered as a common fund for the curred by the State, which they shall judge to use and benefit of such of the United States be comprised within the intent and meaning as have become, or shall become members of of the act of Congress of the 10th of October, the confederation or federal alliance of the 1780, respecting such expenses. That of the said States, Virginia inclusive, according to French and Canadian inhabitants, and other their usuai respective proportions in the gensettlers of the Kaskaskies, Saint Vincents and eral charge and expenditure, and shall be the neighboring villages, who have professed faithfully and bona fide disposed of for that themselves citizens of Virginia, shall have purpose, and for no other use or purpose their possessions and titles confirmed to them, whatsoever: Provided, That the trust hereby and be protected in the enjoyment of their reposed in the delegates of this State shall rights and liberties. That a quantity, not ex- not be executed unless three of them, at ceeding one hundred and fifty thousand acres, least, are present in Congress.

77. REPORT OF GOVERNMENT FOR THE WESTERN TERRITORY April 23, 1784 (Journals of the Continental Cangress, ed. by J. C. Fitzpatrick, Vol. X XVI, p. 275 ff.) Shortly after Virginia’s cession of western lands duced to Congress a plan for the organization had been formally completed, Jefferson intro- of government in the western territory. The

122 DOCUMENTS OF AMERICAN HisTorRy original plan contained two important provisions ing due proof thereof to Congress, they shall

Aotil oa. In the fist ole ata in the Act ¥ receive from them authority with appointto create ten States out of the territory between ment of time and place to call a convention

the Ohio and the Mississippi. Rj 4 : of representatives to establish a permanent

; aL ctatan wae) To PFO" Constitutionstates and Government for themselves vided for these potential such names as , Dolypotamia, Assenisippia and Metropotamia. Provided that both the temporary and per-

In the second place Jefferson’s plan contained ™anent governments be established on these a clause, “That after the year 1800 there shall PYincipies as their basis. be neither slavery nor involuntary servitude in First. That they shall forever remain a part

in any of the sd. states.” This clause was de- of this confederacy of the United States of teated by a vote of seven to six, even Virginia America. Second. That they shall be subject voting against its retention. Jefferson’s plan can to the articles of Confederation in all those is found 'n various editions of his Works, or in cases in which the original states shall be so

andall’s Jefferson, Vol. I, p. 397, or in Old biect and to all th t dj f

South Leaflets, Vol. VI. The Report of 1784 su jeer an oa fae acts and ordinances 0 never went into effect. See references in Doc. the Un cf In WONBTESS assem » COI

, he United States in Congress assembled, con-

No. 79. formable thereto. Third. That they shall in no case interfere with the primary disposal of

The Committee to whom was recommitted the soil by the United States .. . nor with the report of a plan for a temporary govern- the ordinances and regulations which Conment of the western territory have agreed to gress may find necessary for securing the

the following resolutions. title to such soil to the bona fide purchasers.

Resolved, that so much of the territory Fourth. That they shall be subject to pay a ceded or to be ceded by individual states to part of the federal debts contracted or to be the United States as is already purchased or contracted, to be apportioned on them by shall be purchased of the Indian inhabitants Congress, according to the same common & offered for sale by Congress, shall be rule & measure, by which apportionments divided into distinct states, in the following thereof shall be made on the other states. manner, as nearly as such cessions will ad- Fifth. That no tax shall be imposed on lands, mit; that is to say, by parallels of latitude, the property of the United States. Sixth. That so that each state shall comprehend from their respective governments shall be repubnorth to south two degrees of latitude begin- _lican. Seventh. That the lands of non-resident ning to count from the completion of forty- proprietors shall in no case, be taxed higher

five degrees north of the equator; and by than those of residents . . . before the admeridians of longitude, one of which shall mission thereof to a vote by its delegates in pass thro’ the lowest point of the rapids of | Congress. Ohio, and the other through the Western That whensoever any of the sd states shall

Cape of the mouth of the Great Kanha- have, of free inhabitants, as many as shall

way,... then be in any one the least numerous of the

That the settlers on any territory so pur- thirteen Original states, such State shall be chased, and offered for sale, shall, either on admitted by it’s delegates into the Congress their own petition, or on the order of Con- of the United States on an equal footing with gress, receive authority from them with ap- the said original states: provided the consent pointments of time and place for their free of so many states in Congress is first obtained males of full age, within the limits of their as may at the time be competent to such ad-

state to meet together for the purpose of es- mission. And in order to adopt the said tablishing a temporary government, to adopt Articles of Confederation to the state of Con-

the constitution and laws of any one of the gress when it’s numbers shall be thus inoriginal states, so that such laws nevertheless creased, it shall be proposed to the legislatures shall be subject to alteration by their ordinary of the states originally parties thereto, to relegislature; & to erect, subject to a like altera- quire the assent of two thirds of the United tion, counties or townships for the election of | States in Congress assembled in all those

members for their legislature. cases wherein by the said articles the assent

That when any such State shall have ac- of nine states is now required; which being quired twenty thousand inhabitants, on giv- agreed to by them shall be binding on the new

LAND ORDINANCE OF 1785 123 states. Until such admission by their dele- That the preceding articles shall be formed gates into Congress, any of the said states into a charter of compact, shall be duly exeafter the establishment of their temporary cuted by the President of the United States government shall have authority to keep a in Congress assembled, under his hand & sitting member in Congress, with a right of _ the seal of the United States, shall be promul-

debating, but not of voting. gated and shall stand as fundamental conThat measures not inconsistent with the _ stitutions between the thirteen original states

principles of the Confedn. & necessary for and each of the several states now newly the preservation of peace & good order among’ described, unalterable . . . but by the Joint

the settlers in any of the said new states consent of the United States in Congress asuntil they shall assume a temporary Govern- sembled, and of the particular state within ment as aforesaid, may from time to time which such alteration is proposed to be be taken by the United States in Congress made. assembled.

78. LAND ORDINANCE OF 1785 May 20, 1785 (Journals of the Continental Congress, ed. by J. C. Fitzpatrick, Vol. XXVIII, p. 375 ff.) This land ordinance laid the foundations for the at a point that shall be found to be due public land system, followed in most essentials north from the western termination of a until 1862. Of particular importance were the line, which has been run as the southern provisions reserving certain lands for educa- boundary of the State of Pennsylvania: and tional purposes. See, A. P.C.J.Ford, Treat, The National the first li . west, t F , shall hal Land System, 1785-1820; Colonial _irst ne, running east and Precedents of our National Land System; G. W. begin at the same point, and shall extend Knight, “History of National Land Grants for throughout the whole territory. Provided, Education in the Northwest Territory,” Am. that nothing herein shall be construed, as

Hist. Assoc. Papers, Vol. I. fixing the western boundary of the State

An Ordinance for ascertaining the mode of Pennsylvania. The geographer shall desig-

. ; nate the townships, or fractional parts of

of disposing of Lands in the Western townships. by numb oressively f

Territory. ps, by numbers progressively from south to north; always beginning each range

BE it ordained by the United States in with No. 1; and the ranges shall be disCongress assembled, that the territory ceded tinguished by their progressive numbers to

by individual States to the United States, the westward. The first range, extending which has been purchased of the Indian in- from the Ohio to the lake Erie, being habitants, shall be disposed of in the follow- marked No. 1. The Geographer shall per-

ing manner: sonally attend to the running of the first

A surveyor from each state shall be ap- east and west line; and shall take the latipointed by Congress or a Committee of the tude of the extremes of the first north and States, who shall take an oath for the faith- south line, and of the mouths of the princiful discharge of his duty, before the Geogra- pal rivers.

pher of the United States... . The lines shall be measured with a chain;

The Surveyors, as they are respectively shall be plainly marked by chaps on the qualified, shall proceed to divide the said trees, and exactly described on a plat: territory into townships of six miles square, whereon shall be noted by the surveyor, at by lines running due north and south, and their proper distances, all mines, salt-springs, others crossing these at right angles, as near salt-licks and mill-seats, that shall come to as may be, unless where the boundaries of his knowledge, and all water-courses, moun-

the late Indian purchases may render the tains and other remarkable and permanent

same impracticable, .. . things, over and near which such lines shall The first line, running due north and south pass, and also the quality of the lands.

as aforesaid, shall begin on the river Ohio, The plats of the townships respectively,

124 DocUMENTS OF AMERICAN History Shall be marked by subdivisions into lots tc be paid in specie, or loan-office certificates, of one mile square, or 640 acres, in the same reduced to specie value, by the scale of direction as the external lines, and numbered depreciation, or certificates of liquidated from 1 to 36; always beginning the succeed- debts of the United States, including interest, Ing range of the lots with the number next besides the expense of the survey and other to that with which the preceding one con- charges thereon, which are hereby rated at

cluded... thirty six dollars the township, . . . on fail-

. . . And the geographer shall make... ure of which payment, the said lands shall returns, from time to time, of every seven again be offered for sale. ranges as they may be surveyed. The Secre- There shall be reserved for the United tary of War shall have recourse thereto, and States out of every township the four lots,

shall take by lot therefrom, a number of being numbered 8,11,26,29, and out of townships ... as will be equal to one every fractional part of a township, so many seventh part of the whole of such seven lots of the same numbers as shall be found ranges, ... for the use of the late Con- thereon, for future sale. There shall be re-

tinental army. ... served the lot No. 16, of every township,

The board of treasury shall transmit a for the maintenance of public schools within copy of the original plats, previously noting the said township; also one-third part of all thereon the townships and fractional parts gold, silver, lead and copper mines, to be of townships, which shall have fallen to the sold, or otherwise disposed of as Congress Several states, by the distribution aforesaid, shall hereafter direct. .. .

to the commissioners of the loan-office of And Whereas Congress . . . stipulated

the several states, who, after giving notice grants of land to certain officers and soldiers

. . . Shall proceed to sell the townships or of the late Continental army ... for comfractional parts of townships, at public plying with such engagements, Be it orvendue, in the following manner, viz.: The dained, That the secretary of war... detownship or fractional part of a township termine who are the objects of the above No. 1, in the first range, shall be sold entire; resolutions and engagements . . . and cause and No. 2, in the same range, by lots; and the townships, or fractional parts of townthus in alternate order through the whole ships, hereinbefore reserved for the use of of the first range . . . provided, that none’ the late Continental army, to be drawn for of the lands, within the said territory, be in such manner as he shall deem expedisold under the price of one dollar the acre, ent... .

79. RELIGIOUS LIBERTY IN VIRGINIA Memorial of the Presbytery of Hanover October 24, 1776 (W. H. Foote, Sketches of Virginia, Historical and Biographical, p. 323 ff.) Parallel with the movement for political liberty To the Honorable the General Assembly of went a demand for religious liberty. This move- Vurginia:

ment was strongest in the South, where the The Memorial of the Presbytery of HanAnglican Church had long been established by yer humbly represents: law. Ever since the days of the Great Awaken- . . . It is well known, that in the frontier ing, the dissenting churches had flourished in counties, which are justly supposed to con-

the up-country of Virginia. The Presbyterian 1.5 4 afth part of the inhabitants of VirChurch was particularly strong in the Valley, ginia, the dissenters have borne the heavy where Scotch-Irish were found in large numbers. burd f has; leb buildi Numerous petitions protesting against religious urdens of pure asing gedes, = bullding - discrimination had been presented to the Vir- Churches, and supporting the established ginia House of Burgesses in the fifties and six- clergy, where there are very few Episcoties; with the coming of the Revolution these palians, either to assist in bearing the exmemorials became even more numerous and pense, or to reap the advantage; and that more emphatic. See. Doc. No. 80 and references. throughout the other parts of the country,

VIRGINIA STATUTE OF RELIGIOUS LIBERTY 125 there are also many thousands of zealous species of religious, as well as civil bondfriends and defenders of our State, who, be- age. Certain it is, that every argument sides the invidious, and disadvantageous re- for civil liberty, gains additional strength strictions to which they have been subjected, when applied to liberty in the concerns of annually pay large taxes to support an es-_ religion; and there is no argument in favour tablishment, from which their consciences of establishing the Christian religion, but and principles oblige them to dissent: all what may be pleaded, with equal propriety, which are confessedly so many violations of | for establishing the tenets of Mahomed by

their natural rights; and in their conse- those who believe the Alcoran: or if this quences, a restraint upon freedom of inquiry, be not true, it is at least impossible for the

and private judgment. magistrate to adjudge the right of preferIn this enlightened age, and in a land ence among the various sects that profess

where all, of every denomination are united the Christian faith, without erecting a chair in the most strenuous efforts to be free, we of infallibility, which would lead us back hope and expect that our representatives to the church of Rome. will cheerfully concur in removing every

80. VIRGINIA STATUTE OF RELIGIOUS LIBERTY January 16, 1786 (W. W. Hening, ed. Statutes at Large of Virginia, Vol. XII, p. 84 ff.) The Declaration of Rights of 1776 had an- Madison; A. C. McLaughlin, et.al., Source nounced the principle of religious liberty, but Problems in United States History, No. iv. the Anglican Church was still the established

church. In 1777 the liberals succeeded in re- oe -

pealing the statutes requiring church attendance An Act for establishing Religious Freedom. and universal support of the established church, I. WuHereas Almighty God hath created but it was not until 1779 that the church was the mind free; that all attempts to influence disestablished. Even this was not satisfactory, it by temporal punishments or burthens, Or

and Jefferson prepared a bill for absolute re- by civil incapacitations, tend only to beget ligious freedom and equality. This complete habits of hypocrisy and meanness, and are a divorcement ofbychurch and state was q . Ftnethe Holauthor th opposed not only the Episcopal but by thebitterly pat ure fom Pp vl an f0 the © toly Presbyterian and other dissenting churches as °! Our religion, who being Lord both of body well. The proposal to make all Christian and mind, yet chose not to propagate it by churches state religions on equal standing and coercions on either, as was in his Almighty support them by taxation found favor with such power to do; that the impious presumption men as Patrick Henry, Washington, and other of legislators and rulers, civil as well as ecconservatives. Jefferson characterized the long clesiastical, who being themselves but falstruggle for religious freedom as ‘“‘the severest lible and uninspired men, have assumed do-

contest in which I have ever been engaged,” inion over the faith of others, setting up

and was not 1785 that Taylor, his bill,cirsponsored thei q d f think in hisitabsence by until Mason, Madison, Own opinions anc- modes 0 AINE

George and W. C. Nicholas, passed the House: 2S the only true and infallible, and as such in January 1786 it was accepted by the Senate endeavouring to impose them on others, hath

and became law. “Thus,” wrote Madison, “in established and maintained false religions Virginia was extinguished forever the ambitious over the greatest part of the world, and hope of making laws for the human mind”, through all time; that to compel a man to while Jefferson regarded it as one of his three furnish contributions of money for the memorable contributions to history. The Bill propagation of opinions which he disbelieves, was translated into French and Italian, and is sinful tyrannical; aroused world-wide remark. See, H. J.andEcken. ;that even the forcrode, Separation of Church and State in Vir- ‘8 him to support this or that teacher of gintia; C. F. James, Documentary History of the his own religious persuasion, is depriving Struggle for Religious Liberty in Virginia; R. B. him of the comfortable liberty of giving his Semple, Rise and Progress of Baptists in Vir- contributions to the particular pastor whose

ginta; F. W. Hirst, Jefferson, p. 130 ff.; G. Hunt, morals he would make his pattern, and

126 DOCUMENTS OF AMERICAN HIsToRY whose powers he feels most persuasive to civil government, for its officers to interfere righteousness, and is withdrawing from the when principles break out into overt acts ministry those temporary rewards, which against peace and good order; and finally, proceeding from an approbation of their that truth is great and will prevail if left to personal conduct, are an additional incite- herself, that she is the proper and sufficient ment to earnest and unremitting labours for antagonist to error, and has nothing to fear the instruction of mankind; that our civil from the conflict, unless by human interposirights have no dependence on our religious tion disarmed of her natural weapons, free

opinions, any more than our opinions in argument and debate, errors ceasing to be physics or geometry; that therefore the pro- dangerous when it is permitted freely to conscribing any citizen as unworthy the public — tradict them. confidence by laying upon him an incapacity II. Be tt enacted by the General Assemof being called to offices of trust and emolu- Diy, that no man shall be compelled to frement, unless he profess or renounce this or quent or support any religious worship, place

that religious opinion, is depriving him in- or ministry whatsoever, nor shall be enjuriously of those privileges and advantages forced, restrained, molested, or burthened in to which in common with his fellow-citizens his body or goods, nor shall otherwise suffer he has a natural right, that it tends only to on account of his religious opinions or becorrupt the principles of that religion it is lief; but that all men shall be free to profess, meant to encourage, by bribing with a mo- and by argument to maintain, their opinion nopoly of worldly honours and emoluments, in matters of religion, and that the same those who will externally profess and con- shall in no wise diminish, enlarge or affect

form to it; that though indeed these are their civil capacities. criminal who do not withstand such tempta- III. And though we well know that this tion, yet neither are those innocent who assembly, elected by the people for the

lay the bait in their way; that to suffer the ordinary purposes of legislation only, have civil magistrate to intrude his powers into no power to restrain the acts of succeeding the field of opinion, and to restrain the pro- assemblies, constituted with powers equal to fession or propagation of principles on sup- our own, and that therefore to declare this position of their ill tendency, is a dangerous act to be irrevocable would be of no effect fallacy, which at once destroys all religious in law; yet as we are free to declare, and liberty, because he being of course judge do declare, that the rights hereby asserted of that tendency will make his opinions the are of the natural rights of mankind, and rule of judgment, and approve or condemn _ that if any act shall hereafter be passed to the sentiments of others only as they shall repeal the present, or to narrow its operasquare with or differ from his own; that it is tion, such act will be an infringement of time enough for the rightful purposes of natural right. 81. SHAYS’S REBELLION 1786

(G. R. Minot, History of the Insurrection in Massachusetts, p. 82 ff.) The commercial depression of 1785-86 hit Mas- in central and western Massachusetts. Under sachusetts with particular severity. The West the leadership of Captain Daniel Shays, infuriIndia trade was stopped, farm prices fell sharply, ated mobs broke up the meetings of courts, and and taxation, unfairly apportioned, was in- threatened the armory at Springfield. The outtolerably heavy: the poll tax, for example, ac- break excited fear and despair in the hearts of counted for forty per cent of the entire taxes. many observers, and was not without influence Foreclosures on lands led to a widespread hos- in persuading Americans of the desirability of tility against lawyers and courts, and all through a stronger central government. After the upthe summer of 1786, town meetings demanded _ rising had been suppressed, the legislature enreforms or direct action. The legislature, how- acted many of the reforms advocated by the ever, was deaf to the appeals for reform, and Shaysites. Minot’s History of the Insurrection in the fall of 1786 a minor rebellion broke out gives many of the petitions and resolutions of

SHAYS’S REBELLION 127 the town meetings. On the Rebellion see also, 2. To the Printer of the Hampshire Herald. A. C. McLaughlin, Confederation and Con- Sir,

stitution, ch. x; J. T. Adams, New England in It has some how or other fallen to my

Me Republic, Mie Pia te Conlot to be employed in a more conspicuous ederation and the ch Shays Rebellion,” American Hist. Review, Vol. XI; W. V. Wells, Life and manner than some ou oe my roe

Public Services of Samuel Adams, Vol. III, ch. “tins, in stepping forth on celenc® lix.; A. E. Morse, The Federalist Party in Mas- rights and privileges of the people, more

sachusetts, ch. iii. especially of the county of Hampshire. Therefore, upon the desire of the people now at arms, I take this method to publish 1. An Appress to the People of the sev- to the world of mankind in general, particueral towns in the county of Hampshire, now larly the people of this Commonwealth,

at arms. some of the principal grievances we com-

GENTLEMEN, plain of, ... We have thought proper to inform you In the first place, I must refer you to a

of some of the principal causes of the late draught of grievances drawn up by a com-

risings of the people, and also of their mittee of the people, now at arms, under

present movement, viz. the signature of Daniel Gray, chairman, ist. The present expensive mode of col- which is heartily approved of; some others lecting debts, which by reason of the great also are here added, viz.

scarcity of cash, will of necessity fill our ist. The General Court, for certain obvigaols with unhappy debtors; and thereby a ous reasons, must be removed out of the reputable body of people rendered incapable town of Boston. of being serviceable either to themselves or 2d. A revision of the constitution 1s abso-

the community. lutely necessary. 2d. The monies raised by impost and 3d. All kinds of governmental securities, excise being appropriated to discharge the now on interest, that have been bought of interest of governmental securities, and not the original owners for two shillings, and the foreign debt, when these securities are the highest for six shillings and eight pence

not subject to taxation. on the pound, and have received more inter3d. A suspension of the writ of Habeas est than the principal cost the speculator

Corpus, by which those persons who have who purchased them—that if justice was done,

stepped forth to assert and maintain the we verily believe, nay positively know, it rights of the people, are liable to be taken would save this Commonwealth thousands of and conveyed even to the most distant part pounds. of the Commonwealth, and thereby subjected 4th. Let the lands belonging to this Com-

to an unjust punishment. monwealth, at the eastward, be sold at the 4th. The unlimited power granted to Jus- best advantage to pay the remainder of our

tices of the Peace and Sheriffs, Deputy domestick debt. Sheriffs, and Constables, by the Riot Act, Sth. Let the monies arising from impost indemnifying them to the prosecution and excise be appropriated to discharge the thereof; when perhaps, wholly actuated from _ foreign debt.

a principle of revenge, hatred, and envy. 6th. Let that act, passed by the General Furthermore, Be assured, that this body, Court last June by a small majority of only now at arms, despise the idea of being insti- seven, called the Supplementary Act, for gated by British emissaries, which is so twenty-five years to come, be repealed. strenuously propagated by the enemies of our 7th. The total abolition of the Inferiour liberties: And also wish the most proper and Court of Common Pleas and General Sesspeedy measures may be taken, to discharge sions of the Peace.

both our foreign and domestick debt. 8th. Deputy Sheriffs totally set aside, as

Per Order, a useless set of officers in the community; DANIEL GRAY, Chairman and Constables who are really necessary, of the Committee. be empowered to do the duty, by which

128 DocUMENTS oF AMERICAN History means a large swarm of lawyers will be To this I boldly sign my proper name, as banished from their wonted haunts, who a hearty wellwisher to the real rights of the have been more damage to the people at people.

large, especially the common farmers, than THOMAS GROVER the savage beasts of prey. Worcester, December 7, 1786. 82. THE NORTHWEST ORDINANCE July 13, 1787 (F. N. Thorpe, ed. Federal and State Constitutions, Vol. II, p. 957 ff.)

The Ordinance of April 23, 1784, Doc. No. 77, vided into two districts, as future circumlaid down the general principles of the American stances may, in the opinion of Congress

colonial but it did notofprovide in detail make it: expedient for thesystem, establishment an administrativ pe : ; .

; . and strative Be itnever ordained theeffect. authority aforesaid structure, it was putby into The y ay , immediate impulse for the Ordinance of 1787 That the estates, both of resident and noncame from a group of land speculators, mem- TeSident proprietors in the said territory, dybers of the Ohio Company of Associates and ng Intestate, shall descend to, and be dis-

of the Society of the Cincinnati, who wished tributed among their children, and the to establish colonies in the Ohio country. The descendants of a deceased child, in equal spokesmen of these groups were the Rev. parts: the descendants of a deceased child Manasseh Cutler, Samuel Parsons, and General oy grandchild to take the share of. their Rufus Putnam. These men succeeded in lobby- deceased parent in equal parts among them: Oe through a moribund Congress a thegovernment famous Aanq where there ,shall be no children or de. rdinance establishing in the

Northwest territory. The authorship of the scendants, then in equal parts to the next Ordinance is a matter of controversy, but it of kin in equal degree; and among col-

seems probable that Nathan Dane and Rufus /aterals, the children of a deceased brother King were the principal authors; fundamentally, or sister of the intestate shall have, in equal of course, the Ordinance followed Jefferson’s parts among them, their deceased parents’ Ordinance of 1784. Sce B. A. Hinsdale, The share; and there shall in no case be a disOld Northwest; J. A. Barrett, Evolution of the tinction between kindred of the whole and Ordinance of 1787; W. P. and J. P. Cutler, half-blood; saving, in all cases, to the widow Life, Journals, and Correspondence of Man- of the intestate her third part of the real

asseh Cutler, 2 Vols.; R. Buell, Memoirs of estate for life, and one-third part of the the Ohio Company; C. S. Hall, Life and Let- personal estate; and this law relative to

Rufus Putnam; A. B. Hulbert, ed. Records of ;

ters of Samuel Holden Parsons; R. King, Ohio; descents and dower, shall remain Uh full J. P. Dunn, Indiana; B. W. Bond, Civilization force until altered by the legislature of the of the Old Northwest; J. M. Merriam, “Legisla- district. And until the governor and judges tive History of the Ordinance of 1787”, Am. shall adopt laws as hereinafter mentioned, Antiquarian Soc. Proceedings, N.S. Vol. V; estates in the said territory may be devised C. R. King, Rufus King. Vol. I.; A. C. Mc- or bequeathed by wills in writing, signed and Laughlin, and “onstiialion, cealed by .him or her in whom the estate vii; F. L.Confederation Paxson, History of theCh. American

Frontier, chs, vii-viii; J. B. McMaster, History may be (being of u age) » and attest of the People of the United States, Vol. I, by three witnesses; and real estates may De

ch. v. conveyed by lease and and release, or bargain sale, signed sealed and delivered by the person, being of full age, in whom the estate

An Ordinance for the government of the may be, and attested by two witnesses, proTerritory of the United States north- vided such wills be duly proved, and such

west of the River Oho. conveyances be acknowledged, or the execu-

Be wt ordained by the United States in tion thereof duly proved, and be recorded Congress assembled, That the said territory, within one year after proper magistrates, for the purposes of temporary government, courts, and registers shall be appointed for be one district, subject, however, to be di- that purpose; and personal property may be

THoe NoRTHWEST ORDINANCE 129 transferred by delivery; saving, however to officers shall be appointed and commissioned the French and Canadian inhabitants, and by Congress. other settlers of the Kaskaskies, St. Vincents Previous to the organization of the general and the neighboring villages who have here- assembly, the governor shall appoint such tofore professed themselves citizens of Vir- magistrates and other civil officers in each ginia, their laws and customs now in force county or township, as he shall find neces-

among them, relative to the descent and = sary for the preservation of the peace and

conveyance, of property. good order in the same: After the general Be it ordained by the authority aforesaid, assembly shall be organized, the powers and

That there shall be appointed from time to duties of the magistrates and other civil time by Congress, a governor, whose com- officers shall be regulated and defined by mission shall continue in force for the term the said assembly; but all magistrates and of three years, unless sooner revoked by other civil officers not herein otherwise diCongress; he shall reside in the district, and rected, shall, during the continuance of this have a freehold estate therein in 1,000 acres temporary government, be appointed by the of land, while in the exercise of his office. governor.

There shall be appointed from time to For the prevention of crimes and injuries,

time by Congress, a secretary, whose com-_ the laws to be adopted or made shall have

mission shall continue in force for four force in all parts of the district, and for

years unless sooner revoked; he shall reside the execution of process, criminal and civil,

in the district, and have a freehold estate the governor shall make proper divisions therein in 500 acres of land, while in the thereof; and he shall proceed from time exercise of his office. It shall be his duty to to time as circumstances may require, to keep and preserve the acts and laws passed lay out the parts of the district in which by the legislature, and the public records of the Indian titles shall have been extinthe district, and the proceedings of the guished, into counties and townships, subject governor in his executive department, and however to such alterations as may theretransmit authentic copies of such acts and after be made by the legislature. proceedings, every six months, to the Secre- So soon as there shall be five thousand

tary of Congress: There shall also be ap- free male inhabitants of full age in the pointed a court to consist of three judges, district, upon giving proof thereof to the any two of whom to form a court, who shall governor, they shall receive authority, with have a common law jurisdiction, and reside time and place, to elect representatives from

in the district, and have each therein a free- their counties or townships to represent hold estate in 500 acres of land while in them in the general assembly: Provided, the exercise of their offices; and their com- That, for every five hundred free male inmissions shall continue in force during good habitants, there shall be one representative,

behavior. and so on progressively with the number of The governor and judges, or a majority of | free male inhabitants shall the right of reprethem, shall adopt and publish in the district sentation increase, until the number of represuch laws of the original States, criminal and sentatives shall amount to twenty-five; after civil, as may be necessary and best suited which, the number and proportion of repre-

to the circumstances of the district, and sentatives shall be regulated by the legislareport them to Congress from time to time: ture: Provided, That no person be eligible which laws shall be in force in the district or qualified to act as a representative unless until the organization of the General As- he shall have been a citizen of one of the sembly therein, unless disapproved of by United States three years, and be a resident Congress; but afterwards the Legislature in the district, or unless he shall have reshall have authority to alter them as they sided in the district three years; and, in

shall think fit. either case, shall likewise hold in his own The governor, for the time being, shall be right, in fee simple, two hundred acres of commander-in-chief of the militia, appoint land within the same: Provided, also, That and commission all officers in the same be- a freehold in fifty acres of land in the dislow the rank of general officers; all general trict, having been a citizen of one of the

130 DocCUMENTS OF AMERICAN HISTORY states, and being resident in the district, or sent. The governor shall have power to conthe like freehold and two years residence vene, prorogue, and dissolve the general asin the district, shall be necessary to qualify sembly, when, in his opinion, it shall be

a man as an elector of a representative. expedient. The representatives thus elected, shall The governor, Judges, legislative council, serve for the term of two years; and, in case secretary, and such other officers as Congress

of the death of a representative, or removal shall appoint in the district, shall take an from office, the governor shall issue a writ oath or affirmation of fidelity and of office; to the county or township for which he was the governor before the president of cona member, to elect another in his stead, to gress, and all other officers before the Gov-

serve for the residue of the term. ernor. As soon as a legislature shall be

The general assembly or legislature shall formed in the district, the council and house consist of the governor, legislative council, assembled in one room, shall have authority, and a house of representatives. The Legisla- by joint ballot, to elect a delegate to Contive Council shall consist of five members, gress, who shall have a seat in Congress, to continue in office five years, unless sooner with a right of debating but not of voting removed by Congress; any three of whom to during this temporary government.

be a quorum: and the members of the And, for extending the fundamental princiCouncil shall be nominated and appointed in ples of civil and religious liberty, which form the following manner, to wit: As soon as_ the basis whereon these republics, their laws representatives shall be elected, the Governor and constitutions are erected; to fix and

shall appoint a time and place for them to establish those principles as the basis of all meet together; and, when met, they shall laws, constitutions, and governments, which nominate ten persons, residents in the dis- forever hereafter shall be formed in the trict, and each possessed of a freehold in said territory: to provide also for the esfive hundred acres of land, and return their tablishment of States, and permanent governnames to Congress; five of whom Congress ment therein, and for their admission to a shall appoint and commission to serve as share in the federal councils on an equal aforesaid; and, whenever a vacancy shall footing with the original States, at as early happen in the council, by death or removal periods as may be consistent with the genfrom office, the house of representatives eral interest:

shall nominate two persons, qualified as It is hereby ordained and declared by aforesaid, for each vacancy, and return their the authority aforesaid, That the following names to Congress; one of whom Congress articles shall be considered as articles of shall appoint and commission for the residue compact between the original States and the

of the term. And every five years, four people and States in the said territory and months at least before the expiration of the forever remain unalterable, unless by comtime of service of the members of council, mon consent, to wit: the said house shall nominate ten persons, Art. 1. No person, demeaning himself in qualified as aforesaid, and return their names a peaceable and orderly manner, shall ever to Congress; five of whom Congress shall be molested on account of his mode of worappoint and commission to serve as mem- ship or religious sentiments, in the said terbers of the council five years, unless sooner _ritory. removed. And the governor, legislative coun- Art. 2. The inhabitants of the said tercil, and house of representatives, shall have ritory shall always be entitled to the benefits authority to make laws in all cases, for the of the writ of habeas corpus, and of the trial good government of the district, not re- by jury; of a proportionate representation of pugnant to the principles and articles in this the people in the legislature; and of judicial ordinance established and declared. And all proceedings according to the course of the bills, having passed by a majority in the common law. All persons shall be bailable, house, and by a majority in the council, unless for capital offences, where the proof

shall be referred to the governor for his shall be evident or the presumption great. assent; but no bill, or legislative act what- All fines shall be moderate; and no cruel or unever, shall be of any force without his as- usual punishments shall be inflicted. No man

Tur NoRTHWEST ORDINANCE 131 shall be deprived of his liberty or property, United States in Congress assembled, nor but by the judgment of his peers or the law of with any | regulations Congress may find the land; and, should the public exigencies necessary for securing the title in such soil make it necessary, for the common preserva- to the bona fide purchasers. No tax shall be tion, to take any person’s property, or to de- imposed on lands the property of the United mand his particular services, full compensation States; and, in no case, shall non-resident shall be made for the same. And, in the proprietors be taxed higher than residents. just preservation of rights and property, it The navigable waters leading into the Misis understood and declared, that no law _ sissippi and St. Lawrence, and the carrying ought ever to be made, or have force in the places between the same, shall be common

said territory, that shall, in any manner highways and forever free, as well to the whatever, interfere with or affect private inhabitants of the said territory as to the contracts or engagements, bona fide, and citizens of the United States, and those of

without fraud, previously formed. any other States that may be admitted into

Art. 3. Religion, morality, and knowledge, the confederacy, without any tax, impost, or being necessary to good government and the duty therefor. happiness of mankind, schools and the means ArT. 5. There shall be formed in the said

of education shall forever be encouraged. territory, not less than three nor more than The utmost good faith shall always be ob- five States; and the boundaries of the States, served towards the Indians; their lands and as soon as Virginia shall alter her act of property shall never be taken from them cession, and consent to the same, shall bewithout their consent; and, in their property, come fixed and established as follows, to rights, and liberty, they shall never be in- wit: The western State in the said territory, vaded or disturbed, unless in just and lawful shall be bounded by the Mississippi, the

wars authorized by Congress; but laws Ohio, and Wabash Rivers; a direct line founded in justice and humanity, shall from drawn from the Wabash and Post Vincents, time to time be made for preventing wrongs due North, to the territorial line between being done to them, and for preserving peace the United States and Canada; and, by the

and friendship with them. said territorial line, to the Lake of the Woods

Art. 4. The said territory, and the States and Mississippi. The middle State shall be which may be formed therein, shall forever bounded by the said direct line, the Wabash remain a part of this Confederacy of the from Post Vincents to the Ohio, by the Ohio,

United States of America, subject to the by a direct line, drawn due north from the

Articles of Confederation, and to such alter- mouth of the Great Miami, to the said terations therein as shall be constitutionally ritorial line, and by the said territorial line. made; and to all the acts and ordinances of The eastern State shall be bounded by the the United States in Congress assembled, last mentioned direct line, the Ohio, Pennsylconformable thereto. The inhabitants and vania, and the said territorial line: Provided, settlers in the said territory shall be subject however, and it is further understood and to pay a part of the federal debts contracted declared, that the boundaries of these three or to be contracted, and a proportional part States shall be subject so far to be altered,

of the expenses of government, to be ap- that, if Congress shall hereafter find it portioned on them by Congress according to expedient, they shall have authority to form the same common rule and measure by which one or two States in that part of the said

apportionments thereof shall be made on_ territory which lies north of an east and the other States; and the taxes for paying west line drawn through the southerly bend their proportion shall be laid and levied by or extreme of lake Michigan. And, whenever the authority and direction of the legislatures any of the said States shall have sixty thou-

of the district or districts, or new States, sand free inhabitants therein, such State as in the original States, within the time shall be admitted, by its delegates, into the agreed upon by the United States in Con- Congress of the United States, on an equal gress assembled. The legislatures of those footing with the original States in all redistricts or new States, shall never interfere spects whatever, and shall be at liberty to with the primary disposal of the soil by the form a permanent constitution and State

132 DOCUMENTS OF AMERICAN HISTORY government: Provided, the constitution and victed: Provided, always, That any person government so to be formed, shall be republi- escaping into the same, from whom labor can, and in conformity to the principles or service is lawfully claimed in any one of contained in these articles; and, so far as it the original States, such fugitive may be

can be consistent with the general interest lawfully reclaimed and conveyed to the of the confederacy, such admission shall be person claiming his or her labor or service

allowed at an earlier period, and when there as aforesaid. ,

may be a less number of free inhabitants in Be it ordained by the authority aforesaid,

the State than sixty thousand. That the resolutions of the 23rd of April

Art. 6. There shall be neither slavery nor 1784, relative to the subject of this orinvoluntary servitude in the said territory, dinance, be, and the same are hereby reotherwise than in the punishment of crimes pealed and declared null and void. whereof the party shall have been duly con-

83. THE ANNAPOLIS CONVENTION Proceedings of the Commissioners To Remedy Defects of the Federal Government, Annapolis in the State of Maryland. Sept. 14, 1786 (Documents Illustrative of the Formation of the Union of the American States, p. 39 ff.) Dissatisfaction with the Articles of Confedera- of Maryland, on the eleventh day of Septemtion had been growing ever since their ratifica- ber Instant, and having proceeded to a Comtion. The inability of the government of the munication of their Powers; they found that Confederation to conclude commercial treaties the States of New York, Pennsylvania, and with foreign nations, the mounting financial and Virginia, had, in substance, and nearly in currency difficulties, and the apparent impos- h horized thei ti sibility of amending the Articles by ordinary the same terms, authorized their respective processes, all led to a demand for a drastic Commissioners to meet such other Comrevision of the Articles of Confederation. The M™ussioners as were, or might be, appointed immediate impulse for the Annapolis Conven- by the other States in the Union, at such tion came from a group of men who wished to time and place as should be agreed upon by open up navigation on the Potomac. In 1785 the said Commissioners to take into conWashington invited the commissioners of Vir- sideration the trade and commerce of the ginia and Maryland to meet at Mount Vernon [United States, to consider how far an uniand discuss the problem of communication be- go. system in their commercial intercourse

tween theupEast and the West. commis‘oht b to the; sioners drew resolutions asking the co-These and regulations mig e.necessary to their operation of Pennsylvania in the project. Acting Common interest and permanent harmony,

upon this suggestion Madison pushed through and to report to the several ‘States such the legislature of Virginia a resolution ap- an Act, relative to this great object, as when pointing a commission to meet with other com- unanimously ratified by them would enable missioners to take into consideration the state the United States in Congress assembled ef-

of the union. These commissioners met at An- fectually to provide for the same.” ...

napolis the first Monday in September 1786. That the State of New Jersey had enSee, A. C. McLaughlin, Confederation and larged the object of their appointment, em-

W. C. Rives, Madison. . . .

Constitution, ch. x1; G. Hunt, James Madison, powering their Commissioners, “to consider

how far an uniform system in their comTo the Honorable, the Legislatures of Vir- mercial regulations and other important ginia, Delaware, Pennsylvania, New Jersey, matters, might be necessary to the common

and New York— interest and permanent harmony of the sevThe Commissioners from the said States, eral States,” and to report such an Act on

respectively assembled at Annapolis, humbly _ the subject, as when ratified by them, “would

beg leave to report. enable the United States in Congress asThat, pursuant to their several appoint- sembled, effectually to provide for the exigenments, they met, at Annapolis in the State cies of the Union.”

THe ANNAPOLIS CONVENTION 133 That appointments of Commissioners have That there are important defects in the also been made by the States of New Hamp- system of the Foederal Government 1s shire, Massachusetts, Rhode Island, and acknowledged by the Acts of all those States, North Carolina, none of whom however have which have concurred in the present Meet-

attended: but that no information has been ing; That the defects, upon a closer exreceived by your Commissioners, of any ap- amination, may be found greater and more pointment having been made by the States numerous, than even these acts imply, is at of Connecticut, Maryland, South Carolina or least so far probable, from the embarrass-

Georgia. ments which characterise the present State

That the express terms of the powers of of our national affairs, foreign and domestic, your Commissioners supposing a deputation as may reasonably be supposed to merit a from all the States, and having for object deliberate and candid discussion, in some

the Trade and Commerce of the United mode, which will unite the Sentiments and States, Your Commissioners did not con- Councils of all the States. In the choice of

ceive it advisable to proceed on the business the mode, your Commissioners are of opinof their mission, under the Circumstance of ion, that a Convention of Deputies from the

so partial and defective a representation. different States, for the special and sole Deeply impressed however with the magni- purpose of entering into this investigation, tude and importance of the object confided and digesting a plan for supplying such deto them on this occasion, your Commissioners fects as may be discovered to exist, will be cannot forbear to indulge an expression of entitled to a preference from considerations, their earnest and unanimous wish, that speedy which will occur without being particularised.

measures be taken, to effect a general meet- Your Commissioners decline an enumera-

ing, of the States, in a future Convention, tion of those national circumstances on for the same, and such other purposes, as_ which their opinion respecting the propriety the situation of public affairs may be found’ of a future Convention, with more enlarged

to require. powers, is founded; as it would be an use-

If in expressing this wish, or in intimat- less intrusion of facts and observations, most Ing any other sentiment, your Commissioners of which have been frequently the subject should seem to exceed the strict bounds of of public discussion, and none of which can

their appointment, they entertain a full con- have escaped the penetration of those to

fidence, that a conduct, dictated by an whom they would in this instance be ad-

anxiety for the welfare of the United States, dressed. They are however of a nature so will not fail to receive an indulgent con- serious, as, in the view of your Commis-

struction. sioners, to render the situation of the United

In this persuasion, your Commissioners States delicate and critical, calling for an submit an opinion, that the Idea of extend- exertion of the united virtue and wisdom of ing the powers of their Deputies, to other all the members of the Confederacy. objects, than those of Commerce, which has Under this impression, Your Commissionbeen adopted by the State of New Jersey, ers, with the most respectful deference, beg was an improvement on the original plan, leave to suggest their unanimous conviction and will deserve to be incorporated into that that it may essentially tend to advance the of a future Convention; they are the more interests of the union if the States, by whom naturally led to this conclusion, as in the they have been respectively delegated, would course of their reflections on the subject, themselves concur, and use their endeavours

they have been induced to think, that the to procure the concurrence of the other

power of regulating trade is of such com- States, in the appointment of Commissioners, prehensive extent, and will enter so far into to meet at Philadelphia on the second Monthe general System of the foederal govern- day in May next, to take into consideration ment, that to give it efficacy, and to obviate the situation of the United States, to devise questions and doubts concerning its precise such further provisions as shall appear to nature and limits, may require a correspond- them necessary to render the constitution ent adjustment of other parts of the Foed- of the Foederal Government adequate to the

eral System. exigencies of the Union; and to report such

134 DOCUMENTS OF AMERICAN HIsTORY an Act for that purpose to the United States sentiments to any but the States they have in Congress assembled, as when agreed to, the honor to represent, they have nevertheby them, and afterwards confirmed by the less concluded from motives of respect, to Legislatures of every State, will effectually transmit copies of this Report to the United

provide for the same. States in Congress assembled, and to the Though your Commissioners could not with executives of the other States.

propriety address these observations and

84. THE VIRGINIA or RANDOLPH PLAN Presented to the Federal Convention May 29, 1787 (Hunt, G., and Scott, J. B., eds. Debates in the Federal Convention of 1787 Reported by James Madison, p. 23 ff. For variant texts see, Documents Illustrative of the Formation of the Union of the American States, p. 953 ff.) The Randolph or Large State Plan looked to office established by a particular State, or the creation of a new national government wynder the authority of the United States, exrather than a mere revision of the Articles of cept those peculiarly belonging to the funcConfederation. Of the various plans presented tions of the first branch, during the term of

to the the Convention, it was notmost only theclosely first, service, and for the space ofaafter but one which approximates ; its the finished Constitution. Note however, that expiration; to be incapable of reelection for

the “Supreme law of the land” clause—the the space of after the expiration of

central clause of the Constitution—was taken their term of service, and to be subject to not from the Randolph but from the New Jersey _ recall.

plan. All of the histories of the Federal Con- 5. Resolved that the members of the second vention deal at length with the Randolph Plan. branch of the National Legislature ought to

See, C. Warren, The Making of the Constitu- be elected by those of the first, out of a tion, esp. p. 139ff.; A. C. McLaughlin, Con- proper number of persons nominated by the Jederation and Constiiuion o MN) 2 * wy individual Legislatures, to be of the age

Stan Vell. | ea copie of the Un of years at least; to hold their offices

, 7 for a term sufficient to ensure their in-

1. Resolved that the Articles of Confedera- dependency; to receive liberal stipends, by tion ought to be so corrected and enlarged which they may be compensated for the as to accomplish the objects proposed by devotion of their time to public service; and their institution; namely “common defence, to be ineligible to any office established by

security of liberty and general welfare.” a particular State, or under the authority 2. Resolved therefore that the rights of suf- of the United States, except those peculiarly frage in the National Legislature ought to be belonging to the functions of the second proportioned to the Quotas of contribution, branch, during the term of service, and for

or to the number of free inhabitants, as the the space of after the expiration one or the other rule may seem best in dif- thereof.

fent cases. 6. Resolved that each branch ought to pos-

3. Resolved that the National Legislature sess the right of originating Acts; that the

ought to consist of two branches. National Legislature ought to be impowered 4. Resolved that the members of the first to enjoy the Legislative Rights vested in branch of the National Legislature ought to Congress by the Confederation and more-

be elected by the people of the several over to legislate in all cases to which the States every for the terms of * to separate States are incompetent, or in which be of the age of years at least, to re- the harmony of the United States may be ceive liberal stipends by which they may interrupted by the exercise of individual be compensated for the devotion of their Legislation; to negative all laws passed by time to public service, to be ineligible to any the several States, contravening in the opin-

THE VIRGINIA OR RANDOLPH PLAN 135 ion of the National Legislature the articles piracies and felonies on the high seas, cap-

of Union; and to call forth the force of tures from an enemy, cases in which forthe Union against any member of the Union — eigners or citizens of other States applying

failing in its duty under the articles to such jurisdictions may be interested, or

thereof. which respect the collection of the National 7 Resolved that a National Executive be revenue; impeachments of any National ofinstituted; to be chosen by the National ficers, and questions which may involve the

Legislature for the term of years; to national peace and harmony. receive punctually, at stated times, a fixed 10. Resolved that provision ought to be made compensation for the services rendered, in for the admission of States lawfully arising

which no increase or diminution shall be within the limits of the United States, made so as to affect the Magistracy, exist- whether from a voluntary junction of Governing at the time of the increase or diminution, ment and Territory or otherwise, with the and to be ineligible a second time; and that consent of a number of voices in the Nabesides a general authority to execute the tional legislature less than the whole. National laws, it ought to enjoy the Execu- 11. Resolved that a Republican Government tive rights vested in Congress by the Con- and the territory of each State, except in

federation. the instance of a voluntary junction of 8 Resolved that the Executive and a con- Government and territory, ought to be

venient number of the National Judiciary, guaranteed by the United States to each ought to compose a Council or revision with State. authority to examine every act of the Na- 12. Resolved that provision ought to be made tional Legislature before it shall operate, and for the continuance of Congress and their every act of a particular Legislature before authorities and privileges, until a given day

a Negative thereon shall be final; and that after the reform of the articles of Union

the dissent of the said Council shall amount shall be adopted, and for the completion of to a rejection, unless the Act of the National all their engagements. Legislature be passed again, or that of a 13. Resolved that provision ought to be made particular Legislature be again negatived by for the amendment of the Articles of Union

of the members of each branch. whensoever it shall seem necessary, and

9. Resolved that a National Judiciary be that the assent of the National Legislature established to consist of one or more supreme ought not to be required thereto.

tribunals, and of inferior tribunals to be 14. Resolved that the Legislative Executive chosen by the National Legislature, to hold and Judiciary powers within the several their offices during good behaviour; and to States ought to be bound by oath to supreceive punctually at stated times fixed com- port the articles of Union.

pensation for their services, in which no 15. Resolved that the amendments which increase or diminution shall be made so as __ shall be offered to the Confederation, by the

to affect the persons actually in office at Convention ought at a proper time, or times,

the time of such increase or diminution. after the approbation of Congress to be That the jurisdiction of the inferior tribunals submitted to an assembly or assemblies of shall be to hear and determine in the first Representatives, recommended by the sevinstance, and of the supreme tribunal to eral Legislatures to be expressly chosen by hear and determine in the dernier resort, all the people, to consider and decide thereon.

136 DOCUMENTS OF AMERICAN HISTORY 85. THE PATERSON or NEW JERSEY PLAN Presented to the Federal Convention June 15, 1787 (Hunt, G., and Scott, J. B., eds. Debates in the Federal Convention of 1787 Reported by James Madison, p. 102-4. For variant texts see Documents Illustrative of the Formation of the Union of the American States, p. 967-8) On the Paterson plan, see McLaughlin, Con- Confederation, the United States in Congress federation and Constitution, p. 212 ff. Note be authorized to make such requisitions in particularly Section 6, which contains the germ proportion to the whole number of white

of the central clause of the Constitution. and other free citizens and inhabitants of 1. Resolved that the Articles of Confedera- €Vvery age sex and condition including those

tion ought to be so revised, corrected, and bound to servitude for a term of years and enlarged as to render the federal Constitu- three fifths of all other persons not comtion adequate to the exigencies of Govern- Prehended in the foregoing description, exment, and the preservation of the Union. cept Indians not paying taxes; that if such 2. Resolved that in addition to the powers ‘equisitions be not complied with, in the vested in the United States in Congress, by time specified therein, to direct the collecthe present existing articles of Confedera- tion thereof in the non-complying States and tion, they be authorized to pass acts for rais- for that purpose to devise and pass acts ing a revenue, by levying a duty or duties on directing and authorizing the same; provided all goods or merchandizes of foreign growth that none of the powers hereby vested in

or manufacture, imported into any part of the United States in Congress shall be exthe United States, by Stamps on paper, vel- ercised without the consent of at least

lum or parchment, and by a postage on all States, and in that proportion if the number | letters or packages passing through the gen- of Confederated States should hereafter be :

eral post-office, to be applied to such federal increased or diminished.

purposes as they shall deem proper and ex- +- Resolved that the United States in Conpedient; to make rules and regulations for gress be authorized to elect a federal Execu-

the collection thereof; and the same from tive to consist of persons, to continue time to time, to alter and amend in such in office for the term of years, to remanner as they shall think proper: to pass CelVe punctually at stated times a fixed

Acts for the regulation of trade and com- Compensation for their services, in which no merce as well with foreign nations as with increase or diminution shall be made so as each other; provided that all punishments, to affect the persons composing the Execufines, forfeitures and penalties to be incurred tive at the time of such increase or diminufor contravening such acts rules and regula- tion, to be paid out of the federal treasury; tions shall be adjudged by the Common law [tO be incapable of holding any other office Judiciaries of the State in which any offence OF appointment during their time of service

contrary to the true intent and meaning of and for years thereafter; to be ineligible such Acts rules and regulations shall have 42 second time, and removeable by Congress been committed or perpetrated, with liberty on application by a majority of the Execuof commencing in the first instance all suits tives of the several States; that the Execuand prosecutions for that purpose, in the _ tives besides their general authority to exsuperior common law Judiciary in such state, ecute the federal acts ought to appoint all subject nevertheless, for the correction of federal officers not otherwise provided for,

errors, both in law and fact in rendering and to direct all military operations; proJudgement, to an appeal to the Judiciary of vided that none of the persons composing

the United States. the federal Executive shall on any occasion 3. Resolved that whenever requisitions shall take command of any troops so as personally

be necessary, instead of the rule for mak- to conduct any enterprise as General or in ing requisitions mentioned in the articles of other capacity.

HAMILTON’S PLAN OF UNION 137 5. Resolved that a federal Judiciary be es- Confederation vested in them, and all Treatablished to consist of a supreme tribunal ties made and ratified under the authority of the Judges of which to be appointed by the the United States, shall be the supreme law Executive, and to hold their offices during of the respective States so far forth as those good behaviour, to receive punctually at Acts or Treaties shall relate to the said States stated times a fixed compensation for their or their Citizens, and that the Judiciary of services in which no increase or diminution the several States shall be bound thereby in shall be made so as to affect persons actually their decisions, any thing in the respective

in office at the time of such increase or laws of the Individual States to the con-

diminution; that the Judiciary so established trary notwithstanding; and that if any State, shall have authority to hear and determine or any body of men in any State shall oppose in the first instance on all impeachments of or prevent carrying into execution such acts

federal officers, and by way of appeal in or treaties, the federal Executive shall be the dernier resort in all cases touching the authorized to call forth the power of the rights of Ambassadors, in all cases of cap- Confederated States, or so much thereof as tures from an enemy, in all cases of piracies may be necessary to enforce and compel an and felonies on the high Seas, in all cases in obedience to such Acts or an observance of which foreigners may be interested, in the such Treaties.

construction of any treaty or treaties, or 7. Resolved that provision be made for the which may arise on any of the Acts for admission of new States into the Union. regulation of trade, or the collection of the 8. Resolved the rule for naturalization ought federal Revenue: that none of the Judiciary to be the same in every State. shall during the time they remain in office 9. Resolved that a Citizen of one State combe capable of receiving or holding any other mitting an offence in another State of the office or appointment during the time of Union, shall be deemed guilty of the same

service, or for thereafter. offence as if it had been committed by a

6. Resolved that all Acts of the United States Citizen of the State in which the offence in Congress made by virtue and in pursuance was committed. of the powers hereby and by the articles of

86. HAMILTON’S PLAN OF UNION Presented to the Federal Convention June 18, 1787 (The Works of Alexander Hamilton, ed. by H. C. Lodge, Vol. I, p. 331 ff. For variant

texts, see Documents Illustrative of the Formation of the Union of the American States, p. 979 ff.) Hamilton, who had long been active in the two distinct bodies of men; the one to be movement for strengthening the central govern- called the Assembly, the other the Senate ment, and who had attended the Annapolis who together shall form the Legislature of Convention, was a delegate to the Federal Con- the United States with power to pass all vention from New York. He was distinctly out | h b; P . of sympathy with the work of the Federal Con- .7?”5 W atsoever subject to the Negative vention, as he was with the final Constitution. hereafter mentioned. On June 18 he presented his own plan of 2. The Assembly to consist of persons elected Union, and explained it in an elaborate speech. by the people to serve for three years. The speech can be found in Madison’s Notes, 3. The Senate to consist of persons elected Documents Illustrative, etc., p. 215 ff., and see to serve during good behaviour; their elecpte p. 225; v somewhat different version 18 IN tion to be made by electors chosen for that e notes of ates, Documents Illustrative, etc., purpose by the people. In order to this. the

p. 776 ff. Hamilton’s plan had no perceptible States to be divided ; lect; ar

influence on the character of the Constitution. ates to be divided into e ection districts. On the death, removal or resignation of any

1. The Supreme Legislative power of the Senator his place to be filled out of the United States of America to be vested in district from which he came.

138 DOCUMENTS OF AMERICAN HisTorRy 4. The supreme Executive authority of the to hold their offices during good behavior, United States to be vested in a Governor, with adequate and permanent salaries. This to be elected to serve during good behaviour court to have original jurisdiction in all —His election to be made by Electors chosen causes of capture, and an appellate jurisdicby electors chosen by the people in the Elec- tion (from the courts of the several States) tion Districts aforesaid; or by electors chosen in all causes in which the revenues of the for that purpose by the respective Legisla- General Government or the citizens of fortures—provided that if an election be not eign nations are concerned. made within a limited time, the President 8. The Legislature of the United States to of the Senate shall be the Governor. The have power to institute courts in each State Governor to have a negative upon all laws for the determination of all causes of Ccap-

about to be passed—and the execution of ture and of all matters relating to their

all laws passed—to be the Commander-in- revenues, or in which the citizens of foreign Chief of the land and naval forces and of nations are concerned. the militia of the United States—to have the 9. The Governor, Senators, and all officers entire direction of war when authorized or of the United States to be liable to impeachbegun—to have, with the advice and ap- ment for mal and corrupt conduct, and upon probation of the Senate, the power of making conviction to be removed from office, and all treaties—to have the appointment of the disqualified for holding any place of trust heads or chief officers of the departments of or profit. All impeachments to be tried by a finance, war, and foreign affairs—to have the court, to consist of the judges of the Supreme nomination of all other officers (ambassadors Court, chief or senior judge of the Superior to foreign nations included) subject to the Court of law of each State—provided that

approbation or rejection of the Senate— such judge hold his place during good beto have the power of pardoning all offences havior and have a permanent salary. but treason, which he shall not pardon with- 10. All laws of the particular States con-

out the approbation of the Senate. trary to the Constitution or laws of the 5. On the death, resignation, or removal of United States to be utterly void. And the the Governor, his authorities to be exercised better to prevent such laws being passed the

by the President of the Senate (until a suc- Governor or President of each State shall

cessor be appointed). be appointed by the General Government,

6. The Senate to have the sole power of and shall have a negative upon the laws about declaring war—the power of advising and to be passed in the State of which he is approving all treaties—the power of approv- Governor or President. ing or rejecting all appointments of officers 11. No State to have any forces, land or except the heads or chiefs of the departments naval—and the militia of all the States to

of finance, war, and foreign affairs. be under the sole and exclusive direction of 7. The supreme judicial authority of the the United States, the officers of which to United States to be vested in twelve judges, be appointed and commissioned by them.

87. THE CONSTITUTION OF THE UNITED STATES (Richardson, ed. Messages and Papers, Vol. I, p. 21 ff.) Following the recommendation of the Annapolis the summer of 1787 and on September 15 Convention, Congress adopted, February 21, agreed to the Constitution as reported from the 1787, a resolution that “it is expedient that on Committee on Style. On the 17th September the the second Monday in May next a Convention Constitution was signed, and submitted to Conof delegates who shall have been appointed by — gress. By resolution of September 28, Congress

the several states be held at Philadelphia for submitted the Constitution to the States. By the sole and express purpose of revising the June 21, 1788, nine States had ratified the ConArticles of Confederation.” A quorum, however, _ stitution; Rhode Island, the last of the thirteen did not assemble at Philadelphia until May 25, States to ratify, acted on May 29, 1790. Conwhen the convention proceeded to organize. gress by resolution of September 13, 1788, fixed The convention continued its work throughout the date for the election of a President and the

THe CONSTITUTION OF THE UNITED STATES 139 organization of the new government under the five Years, and been seven Years a Citizen Constitution. The resolutions of Congress, the of the United States, and who shall not, when

Debates and Proceedings of the Convention, elected, be an Inhabitant of that State in the ratifications of the several States, and re- which he shall be chosen. lated material can be found in Documents It- Representatives and direct Taxes shall be American States, ed. by C. C. Tansill. The apportioned among the several states which literature on the Constitution is voluminous. M™4Y be included within this Union, accordThe classic analysis is the Federalist, written by ing to their respective Numbers, which shall Madison, Hamilton and Jay. Almost equally be determined by adding to the whole Numvaluable is Judge Story’s Commentaries on the ber of free Persons, including those bound Constitution, 2 vols. More recent accounts are: to Service for a Term of Years, and excludC. Warren, The Making of the Constitution; ing Indians not taxed, three fifths of all other A. C. McLaughlin, Confederation and Constitu- Persons. The actual Enumeration shall be tion; M. Farrand, Fathers of the Constitution, de within th V after the first MeetM. Farrand, Framing of the Constitution; C. A. ma © waitin taree * ears er eae Ags ve Beard, Economic Interpretation of the Constitu- 98 of the Congress of the United States, tion. The struggle over ratification can be fol- and within every subsequent Term of ten lowed in J. Elliot’s Debates in the Several State Years, in such Manner as they shall by Law Conventions, etc. 5 Vols.; and O. G. Libby, direct. The Number of Representatives shall Geographical Distribution of the Vote on the not exceed one for every thirty Thousand,

lustrative of the Formation of the Union of the a

Federal Convention; J. B. McMaster and but each State shall have at Least one pp. ton’ “ onan one ine oe Ralifea. Representative; and until such enumeration

SLILULION, O. . arding, onles er a = : tion in Massachusetts; C. E. Miner, Ratification pa be made, the State of New Hampshire of the Federal Constitution by the State of shall be entitled to chuse three, MassachuNew York; L. I. Trenholme, Ratification of setts eight, Rhode-Island and Providence the Federal Constitution in North Carolina; Plantations one, Connecticut five, New-York B. C. Steiner, Maryland’s Adoption of the six, New Jersey four, Pennsylvania eight, Federal Constitution; F. G. Bates, Rhode Is- Delaware one, Maryland six, Virginia ten, land and the Union; H. G. Grigsby, History North Carolina five, South Carolina five, and of the Virginia Federal Convention of 1788, (Georgia three. 2 Vols. On the amendments, see C. Borgeaud, When vacancies happen in the RepresentaAdoption and Amendment of Constitutions. tion from any State, the Executive Authority

We tHE PropLe of the United States, in thereof shall issue Writs of Election to fill Order to form a more perfect Union, es- such Vacancies. tablish Justice, insure domestic Tranquility, The House of Representatives shall chuse provide for the common defence, promote their Speaker and other Officers; and shall the general Welfare, and secure the Bless- have the sole Power of Impeachment. ings of Liberty to ourselves and our Poster- Sec. 3. The Senate of the United States shall ity, do ordain and establish this Constitu- be composed of two Senators from each tion for the United States of America. State, chosen by the Legislature thereof, for

Arr. I six Years; and each Senator shall have one Vote. Sec. 1. All legislative Powers herein granted Immediately after they shall be assembled shall be vested in a Congress of the United in Consequence of the first Election, they States, which shall consist of a Senate and _— shall be divided as equally as may be into

House of Representatives. three Classes. The Seats of the Senators of

Sec. 2. The House of Representatives shall the first Class shall be vacated at the Expirabe composed of Members chosen every sec- tion of the second Year, of the second Class ond Year by the People of the several States, at the Expiration of the fourth Year, and and the Electors in each State shall have the of the third Class at the Expiration of the Qualifications requisite for Electors of the sixth Year, so that one third may be chosen most numerous Branch of the State Legisla- every second Year; and if Vacancies hap-

ture. pen by Resignation, or otherwise, during the

No Person shall be a Representative who Recess of the Legislature of any State, the .

shall not have attained to the Age of twenty Executive thereof may make temporary Ap-

140 DOCUMENTS OF AMERICAN HisToRY pointments until the next Meeting of the its Proceedings, punish its Members for disLegislature, which shall then fill such Vacan- orderly Behaviour, and, with the Concurrence

cies. of two thirds, expel a Member. No Person shall be a Senator who shall Each House shall keep a Journal of its

not have attained to the Age of thirty Years, Proceedings, and from time to time publish and been nine Years a Citizens of the United the same, excepting such Parts as may in States, and who shall not, when elected, be their Judgment require Secrecy; and the

an Inhabitant of that State for which he Yeas and Nays of the Members of either

shall be chosen. House on any question shall, at the Desire

The Vice President of the United States of one fifth of those Present, be entered on shall be President of the Senate, but shall the Journal.

have no Vote, unless they be equally divided. Neither House, during the Session of ConThe Senate shall chuse their other Officers, gress, shall, without the Consent of the other,

and also a President pro tempore, in the adjourn for more than three days, nor to Absence of the Vice President, or when he any other Place than that in which the two shall exercise the Office of President of the Houses shall be sitting.

United States. Sec. 6. The Senators and Representatives

The Senate shall have the sole Power to _ shall receive a Compensation for their Servtry all Impeachments. When sitting for that ices, to be ascertained by Law, and paid out Purpose, they shall be on Oath or Affirma- of the Treasury of the United States. They tion. When the President of the United States shall in all Cases, except Treason, Felony and is tried, the Chief Justice shall preside: And Breach of the Peace, be privileged from Arno Person shall be convicted without the rest during their Attendance at the Session Concurrence of two thirds of the Members of their respective Houses, and in going to

present. and returning from the same; and for any Judgment in Cases of Impeachment shall Speech or Debate in either House, they shall

not extend further than to removal from not be questioned in any other Place. Office, and disqualification to hold and enjoy No Senator or Representative shall, durany Office of honor, Trust or Profit under ing the Time for which he was elected, be the United States: but the Party convicted appointed to any civil Office under the Aushall nevertheless be liable and subject to thority of the United States which shall have Indictment, Trial, Judgment and Punishment, been created, or the Emoluments whereof

according to Law. shall have been encreased during such time;

Sec. 4. The Times, Places and Manner of and no Person holding any Office under the holding Elections for Senators and Repre- United States, shall be a Member of either sentatives, shall be prescribed in each State House during his Continuance in Office. by the Legislature thereof; but the Congress Sec. 7. All Bills for raising Revenue shall may at any time by Law make or alter such originate in the House of Representatives; Regulations, except as to the Places of chus- but the Senate may propose or concur with

ing Senators. Amendments as on other Bills.

The Congress shall assemble at least once Every Bill which shall have passed the in every Year, and such Meeting shall be on House of Representatives and the Senate, the first Monday in December, unless they _ shall, before it become a Law, be presented

shall by Law appoint a different Day. to the President of the United States; If Sec. 5. Each House shall be the Judge of the he approve he shall sign it, but if not he Elections, Returns and Qualifications of its shall return it, with his Objections to that own Members, and a Majority of each shall House in which it shall have originated, who constitute a Quorum to do Business; but a_ shall enter the Objections at large on their smaller Number may adjourn from day to Journal, and proceed to reconsider it. If after

day, and may be authorized to compel the such Reconsideration two thirds of that Attendance of absent Members, in such House shall agree to pass the Bill, it shall be Manner, and under such Penalties as each sent, together with the Objections, to the

House may provide. other House, by which it shall likewise be

Each House may determine the Rules of reconsidered, and if approved by two thirds

Tuer CONSTITUTION OF THE UNITED STATES 141 of that House, it shall become a Law. But committed on the high Seas, and Offences in all such Cases the Votes of both Houses against the Law of Nations; shall be determined by yeas and Nays, and To declare War, grant Letters of Marque the Names of the Persons voting for and and Reprisal, and make Rules concerning against the Bill shall be entered on the Captures on Land and Water; Journal of each House respectively. If any To raise and support Armies, but no ApBill shall not be returned by the President propriation of Money to that Use shall be within ten Days (Sundays excepted) after for a longer Term than two Years; it shall have been presented to him, the Same To provide and maintain a Navy; shall be a Law, in like Manner as if he had To make Rules for the Government and signed it, unless the Congress by their Ad- Regulation of the land and naval Forces; journment prevent its Return, in which Case To provide for calling forth the Militia

it shall not be a Law. to execute the Laws of the Union, suppress Every Order, Resolution, or Vote to which Insurrections and repel Invasions;

the Concurrence of the Senate and House To provide for organizing, arming, and of Representatives may be necessary (except disciplining, the Militia, and for governing on a question of Adjournment) shall be pre- such Part of them as may be employed in sented to the President of the United States; the Service of the United States, reserving and before the Same shall take Effect, shall to the States respectively, the Appointment be approved by him, or being disapproved of the Officers, and the Authority of trainby him, shall be repassed by two thirds of ing .the Militia according to the discipline the Senate and House of Representatives, prescribed by Congress; according to the Rules and Limitations pre- To exercise exclusive Legislation in all

scribed in the Case of a Bill. Cases whatsoever, over such District (not Sec. 8. The Congress shall have Power To exceeding ten Miles square) as may, by Ceslay and collect Taxes, Duties, Imposts and sion of particular States, and the Acceptance Excises, to pay the Debts and provide for of Congress, become the Seat of the Governthe common Defence and general Welfare ment of the United States, and to exercise of the United States; but all Duties, Im- like Authority over all Places purchased by posts and Excises shall be umiform through- the Consent of the Legislature of the State

out the United States; in which the Same shall be, for the Erection To borrow Money on the credit of the of Forts, Magazines, Arsenals, dock-Yards,

United States; and other needful Buildings;—And

To regulate Commerce with foreign Na- To make all Laws which shall be necestions, and among the several States, and sary and proper for carrying into Execution

with the Indian Tribes; the foregoing Powers, and all other Powers

To establish an uniform Rule of Natur- vested by this Constitution in the Governalization, and uniform Laws on the subject ment of the United States, or in any Depart-

of Bankruptcies throughout the United ment or Officer thereof.

States ; Sec. 9. The Migration or Importation of To coin Money, regulate the Value thereof, such Persons as any of the States now existand of foreign Coin, and fix the Standard of ing shall think proper to admit, shall not

Weights and Measures; be prohibited by the Congress prior to the To provide for the Punishment of counter- Year one thousand eight hundred and eight,

feiting the Securities and current Coin of but a Tax or duty may be imposed on such

the United States; Importation, not exceeding ten dollars for To establish Post Offices and post Roads; each Person.

To promote the Progress of Science and The Privilege of the Writ of Habeas useful Arts, by securing for limited Times Corpus shall not be suspended, unless when to Authors and Inventors the exclusive Right in Cases of Rebellion or Invasion the public to their respective Writings and Discoveries; Safety may require it.

To constitute Tribunals inferior to the No Bill of Attainder or ex post facto Law

supreme Court; shall be passed.

To define and punish Piracies and Felonies No Capitation, or other direct, Tax shall

142 DOCUMENTS OF AMERICAN HISTORY be laid, unless in Proportion to the Census America. He shall hold his Office during the or Enumeration herein before directed to be Term of four Years, and, together with the

taken. | Vice President, chosen for the same Term, No Tax or Duty shall be laid on Articles be elected, as follows

exported from any State. Each State shall appoint, in such Manner

No Preference shall be given by any as the Legislature thereof may direct, a

Regulation of Commerce or Revenue to the Number of Electors, equal to the whole Ports of one State over those of another: Number of Senators and Representatives to nor shall Vessels bound to, or from, one which the State may be entitled in the ConState, be obliged to enter, clear, or pay gress: but no Senator or Representative, or

Duties in another. Person holding an Office of Trust or Profit No Money shall be drawn from the Treas- under the United States, shall be appointed ury, but in Consequence of Appropriations an Elector. made by Law; and a regular Statement and The Electors shall meet in their respective Account of the Receipts and Expenditures States, and vote by Ballot for two Persons, of all public Money shall be published from of whom one at least shall not be an In-

time to time. habitant of the same State with themselves. No Title of Nobility shall be granted by And they shall make a List of all the Perthe United States: And no Person holding sons voted for, and of the Number of Votes

any Office of Profit or Trust under them, for each; which List they shall sign and shall, without the Consent of the Congress, certify, and transmit sealed to the Seat of accept of any preseht, Emolument, Office, the Government of the United States, dior Title, of any kind whatever, from any rected to the President of the Senate. The

King, Prince or foreign State. President of the Senate shall, in the Presence Sec. 10, No State shall enter into any Treaty, of the Senate and House of Representatives, Alliance, or Confederation; grant Letters of open all the Certificates, and the Votes shall

Marque and Reprisal; coin Money; emit then be counted. The Person having the Bills of Credit; make any Thing but gold greatest Number of Votes shall be the Presiand silver Coin a Tender in Payment of dent, if such Number be a Majority of the Debts; pass any Bill of Attainder, ex post whole Number of Electors appointed; and if facto Law, or Law impairing the Obligation there be more than one who have such of Contracts, or grant any Title of Nobility. Majority, and have an equal Number of No State shall, without the Consent of the Votes, then the House of Representatives Congress, lay any Imposts or Duties on shall immediately chuse by Ballot one of Imports or Exports, except what may be them for President; and if no person have absolutely necessary for executing it’s in- a Majority, then from the five highest on spection Laws: and the net Produce of all the List the said House shall in like Manner Duties and Imposts, laid by any State en chuse the President. But in chusing the Imports or Exports, shall be for the Use President, the Votes shall be taken by States, of the Treasury of the United States; and the Representation from each State having all such Laws shall be subject to the Revision one Vote; A quorum for this Purpose shall

and Controul of the Congress. consist of a Member or Members from two No State shall, without the Consent of thirds of the States, and a Majority of all Congress, lay any Duty of Tonnage, keep the States shall be necessary to.a Choice. Troops, or Ships of War in time of Peace, In every Case, after the Choice of the enter into any Agreement or Compact with President, the Person having the greatest another State, or with a foreign Power, or Number of Votes of the Electors shall be the engage in War, unless actually invaded, or Vice President. But if there should remain in such imminent Danger as will not admit two or more who have equal Votes, the

of delay. Senate shall chuse from them by Ballot the Vice President.

Art. Il The Congress may determine the Time of Sec. 1. The executive Power shall be vested chusing the Electors, and the Day on which

in a President of the United States of they shall give their Votes; which Day shall

Tur CONSTITUTION OF THE UNITED STATES 143 be the same throughout the United States. public Ministers and Consuls, Judges of the No Person except a natural born Citizen, supreme Court, and all other Officers of the or a Citizen of the United States, at the United States, whose Appointments are not time of the Adoption of this Constitution, herein otherwise provided for, and which shall shall be eligible to the Office of President; be established by Law: but the Congress may neither shall any Person be eligible to that by Law vest the Appointment of such inferior Office who shall not have attained to the Officers, as they think proper, in the PresiAge of thirty five Years, and been fourteen dent alone, in the Courts of Law, or in the Years a Resident within the United States. Heads of Departments. In Case of the Removal of the President The President shall have Power to fill up from Office, or of his Death, Resignation, all Vacancies that may happen during the or Inability to discharge the Powers and Recess of the Senate, by granting CommisDuties of the said Office, the Same shall sions which shall expire at the End of their devolve on the Vice President, and the Con- next Session. gress may by Law provide for the Case of Sec. 3. He shall from time to time give to Removal, Death, Resignation or Inability, the Congress Information of the State of both of the President and Vice President, the Union, and recommend to their Condeclaring what Officer shall then act as sideration such Measures as he shall judge President, and such Officer shall act accord- necessary and expedient; he may, on extraoringly, until the Disability be removed, or a dinary Occasions, convene both Houses, or

President shall be elected. either of them, and in Case of Disagreement

The President shall, at stated Times, re- between them, with Respect to the Time of ceive for his Services, a Compensation, which Adjournment, he may adjourn them to such

shall neither be encreased nor diminished Time as he shall think proper; he shall during the Period for which he shall have receive Ambassadors and other public Minisbeen elected, and he shall not receive within ters; he shall take Care that the Laws be that Period any other Emolument from the faithfully executed, and shall Commission

United States, or any of them. all the Officers of the United States.

Before he enter on the Execution of his Sec. 4. The President, Vice President and all Office, he shall take the following Oath or civil Officers of the United States, shall be Affirmation: —‘“I do solemnly swear (or af- removed from Office on Impeachment for, firm) that I will faithfully execute the Of- and Conviction of, Treason, Bribery, or other fice of President of the United States, and high Crimes and Misdemeanors. will to the best of my Ability, preserve,

protect and defend the Constitution of the Art. Ht

United States.” Sec. 1. The judicial Power of the United Sec. 2. The President shall be Commander States, shall be vested in one supreme Court,

in Chief of the Army and Navy of the and in such inferior Courts as the Congress United States, and of the Militia of the may from time to time ordain and establish. several States, when called into the actual The Judges, both of the supreme and inferior Service of the United States; he may require Courts, shall hold their Offices during good the Opinion, in writing, of the principal Of- Behaviour, and shall, at stated Times, reficer in each of the executive Departments, ceive for their Services, a Compensation, upon any Subject relating to the Duties of | which shall not be diminished during their their respective Offices, and he shall have Continuance in Office. Power to grant Reprieves and Pardons for Sec. 2. The judicial Power shall extend to Offences against the United States, except all Cases, in Law and Equity, arising under

in Cases of Impeachment. this Constitution, the Laws of the United He shall have Power, by and with the States, and Treaties made, or which shall

Advice and Consent of the Senate, to make be made, under their Authority ;—to all Cases Treaties, provided two thirds of the Senators affecting Ambassadors, other public Ministers present concur; and he shall nominate, and and Consuls;—to all Cases of admiralty and by and with the Advice and Consent of the maritime Jurisdiction;—to Controversies to

Senate, shall appoint Ambassadors, other which the United States shall be a Party;—

144 DOCUMENTS OF AMERICAN HISTORY to Controversies between two or more States; No Person held to Service or Labour in —between a State and Citizens of another one State, under the Laws thereof, escaping State ;—between Citizens of different States, into another, shall, in Consequence of any —between Citizens of the same State claim- Law or Regulation therein, be discharged ing Lands under Grants of different States, from such Service or Labour, but shall be and between a State, or the Citizens thereof, delivered up on Claim of the Party to whom

and foreign States, Citizens or Subjects. such Service or Labour may be due. In all Cases affecting Ambassadors, other Sec. 3. New States may be admitted by the public Ministers and Consuls, and those in Congress into this Union; but no new States which a State shall be Party, the supreme shall be formed or erected within the JurisCourt shall have original Jurisdiction. In all diction of any other State; nor any State be

the other Cases before mentioned, the su- formed by the Junction of two or more preme Court shall have appellate Jurisdic- States, or Parts of States, without the Contion, both as to Law and Fact, with such sent of the Legislatures of the States conExceptions, and under such Regulations as cerned as well as of the Congress.

the Congress shall make. The Congress shall have Power to dispose The Trial of all Crimes, except in Cases of and make all needful Rules and Regulaof Impeachment, shall be by Jury; and such _ tions respecting the Territory or other Prop-

Trial shall be held in the State where the erty belonging to the United States; and said Crimes shall have been committed; but nothing in this Constitution shall be so con-

when not committed within any State, the strued as to Prejudice any Claims of the Trial shall be at such Place or Places as the United States, or of any particular State.

Congress may by Law have directed. Sec. 4. The United States shall guarantee to Sec. 3. Treason against the United States, every State in this Union a Republican Form

shall consist only in levying War against of Government, and shall protect each of them, or in adhering to their Enemies, giving them against Invasion; and on Application them Aid and Comfort. No Person shall be of the Legislature, or of the Executive (when convicted of Treason unless on the Testimony the Legislature cannot be convened) against of two Witnesses to the same overt Act, or domestic Violence. on Confession in open Court.

The Congress shall have Power to declare ArT. V

the Punishment of Treason, but no Attainder The Congress, whenever two thirds of both of Treason shall work Corruption of Blood, Houses shall deem it necessary, shall propose or Forfeiture except during the Life of the Amendments to this Constitution, or, on the

Person attainted. Application of the Legislatures of two thirds of the several States, shall call a Convention

Art. IV for proposing Amendments, which, in either

Sec. 1. Full Faith and Credit shall be given Case, shall be valid to all Intents and Purin each State to the Public Acts, Records, poses, as Part of this Constitution, when and judicial Proceedings of every other ratified by the Legislatures of three fourths State. And the Congress may by general of the several States, or by Conventions in Laws prescribe the Manner in which such _ three fourths thereof, as the one or the other Acts, Records and Proceedings shall be Mode of Ratification may be proposed by the

proved, and the Effect thereof. Congress; Provided that no Amendment

Sec. 2. The Citizens of each State shall be which may be made prior to the Year One entitled to all Privileges and Immunities of thousand eight hundred and eight shall in

Citizens in the several States. any Manner affect the first and fourth

A Person charged in any State with Trea- Clauses in the Ninth Section of the first son, Felony, or other Crime, who shall flee Article; and that no State, without its Confrom Justice, and be found in another State, sent, shall be deprived of it’s equal Suffrage shall on Demand of the executive Authority in the Senate.

of the State from which he fled, be delivered A VI up, to be removed to the State having Juris- RT. diction of the Crime. All Debts contracted and Engagements

THE CONSTITUTION OF THE UNITED STATES 145 entered into, before the Adoption of this stitution; but no religious Test shall ever be Constitution, shall be as valid against the required as a Qualification to any Office or United States under this Constitution, as public Trust under the United States.

the Confederation. Art. VII _under This Constitution, and the Laws of the . United States which shall be made in Pursu- The Ratification of the Conventions of ance thereof; and all Treaties made, or which nine States, shall be sufficient for the Esshall be made, under the Authority of the tablishment of this Constitution between the United States, shall be the supreme Law of States so ratifying the Same. the Land; and the Judges in every State shall Done in Convention by the Unanimous be bound thereby, any Thing in the Constitu- Consent of the States present the Sevention or Laws of any State to the Contrary teenth Day of September in the Year of our

notwithstanding. Lord one thousand seven hundred and

The Senators and Representatives before Eighty seven and of the Independence of mentioned, and the Members of the several the United States of America the Twelfth. State Legislatures, and all executive and In witness whereof We have hereunto subjudicial Officers, both of the United States scribed our Names,

and of the several States, shall be bound G° WASHINGTON—Presidt by Oath or Affirmation, to support this Con- and deputy from Virginia

LANcp GEO: READ

, Delaware Jun

New Hampshire JOHN LANGDON GUNNING BEDFORD NICHOLAS GILMAN JoHN DICKINSON RICHARD BASSETT

NATHANIEL GORHAM Jaco: Broom Massachusetts { Rurus Kine

| James McCHENRY

Connecncu ficut W™ Sam! JoHNSONSHERMAN Maryland DAN oFFER S? THOS JENIROGER DAN CARROLL

New York { ALEXANDER HAMILVireiniMADISON Joun BLair— TON reine { Sentes

Jr.

Wit: LivincsTon | Ro BIOUNT New Jersey W™ PATERSON SPAIGHT Jona: Dayton Hu WILLIAMSON | Davip BREARLEY North Carolina ICH" MOBBS

J. RUTLEDGE

( B FRANKLIN CHARLES COTEs| THOMAS MIFFLIN South Carolina WORTH PINCKNEY

2 noe ces CHARLES . GEO. CLYMER PIERCEPINCKNEY BUTLER

Pensylvania } [Txos FitzSimons | JARED INGERSOLL

JAMES WILSON . WILLIAM FEw

Gow Morris Georgia { ape BALDWIN

146 DOCUMENTS OF AMERICAN History Articles in addition to, and Amendment of Art. VI the Constitution of the United States of In all criminal prosecutions, the accused America, proposed by Congress, and ratified shall enjoy the right to a speedy and public by the Legislatures of the several States, pur- trial, by an impartial jury of the State and suant to the fifth Article of the original Con- district. wherein the crime shall have been

stitution. committed, which district shall have been [The first ten amendments went into effect Previously ascertained by law, and to be in-

November 3, 1791.] formed of the nature and cause of the accusation; to be confronted with the witnesses

ArT. I against him; to have compulsory process for Congress shall make no law respecting an __ obtaining witnesses in his favor, and to have establishment of religion, or prohibiting the the Assistance of Counsel for his defence.

free exercise thereof; or abridging the free- Arr. VII

dom of speech, or of the press; or the right In Sui , he val of the people peaceably to assemble, and to . ~” ults at common law, where the value

i in controversy shallfor exceed twenty dollars, petition the government a redress of | . .,, grievances. the right of trial by jury shall be preserved, and no fact tried by a jury, shall be other-

Art. II wise re-examined in any Court of the United A well regulated Militia, being necessary States, than according to the rules of the to the security of a free State, the right of | Common law.

the people to keep and bear Arms, shall not Arr. VIII

be infringed. Excessive bail shall not be required, nor

Art. III excessive fines imposed, nor cruel and un-

No Soldier shall, in time of peace be Usual punishments inflicted.

quartered in any house, without the consent Arr. IX

of the Owner, nor in time of war, but in a The enumeration in the Constitution, of

manner to be prescribed by law. certain rights, shall not be construed to deny

Art. IV or disparage others retained by the people.

The right of the people to be secure in Art. X

their persons, houses, papers, and effects, The powers not delegated to the United against unreasonable searches and seizures, States by the Constitution, nor prohibited shall not be violated, and no Warrants shall by it to the States, are reserved to the States issue, but upon probable cause, supported by respectively, or to the people.

Oath or affirmation, and particularly describ-

ing the place to be searched, and the persons Art. XI

or things to be seized. Jan. 8, 1798 The Judicial power of the United States

Art. V shall not be construed to extend to any suit

No person shall be held to answer for a jn Jaw or equity, commenced or prosecuted capital, or otherwise infamous crime, unless against one of the United States by Citizens on a presentment or indictment of a Grand oF another State, or by Citizens or Subjects Jury, except in cases arising in the land or of any Foreign State. naval forces, or in the Militia, when in actual

service in time of War or public danger; Art. XII nor shall any person be subject for the same Sept. 25, 1804 .

offence to be twice put in jeopardy of life The Electors shall meet in their respec-

or limb; nor shall be compelled in any crimi- tive states, and vote by ballot for President nal case to be a witness against himself, nor and Vice-President, one of whom, at least, be deprived of life, liberty, or property, with- shall not be an inhabitant of the same state

out due process of law; nor shall private with themselves; they shall name in their

property be taken for public use, without ballots the person voted for as President, and

just compensation. in distinct ballots the person voted for as

THE CONSTITUTION OF THE UNITED STATES 147 Vice-President, and they shall make distinct Sec. 2. Congress shall have power to enforce lists of all persons voted for as President, this article by appropriate legislation.

and of all persons voted for as Vice-Presi- Art. XIV which lists they shall sign and certify, and July 28, 1868 , , dent, and of the number of votes for each,

transmit sealed to the seat of the government Sec. 1. All persons born or naturalized n the of the United States, directed to the Presi- United States, and subject to the jurisdiction dent of the Senate;—The President of the thereof, are citizens of the United States and Senate shall, in the presence of the Senate of the State wherein they reside. No state and House of Representatives, open all the shall make or en force any law which shall

certificates and the votes shall then be abridge the privileges or immunities of citicounted:—The person having the greatest zens of the United States ; nor shall any State number of votes for President, shall be the deprive any person of life, liberty, or property, President, if such number be a majority of without due process of law; nor deny to any the whole number of Electors appointed: and Person within its jurisdiction the equal pro-

if no person have such majority, then from tection of the laws.

the persons having the highest numbers not Sec. 2. Representatives shall be apportioned exceeding three on the list of those voted for 2™0ng the several States according to their as President, the House of Representatives respective numbers, counting the whole num shall choose immediately, by ballot, the Pres- ber of persons in each State, excluding Indians

ident. But in choosing the President, the not taxed. But when the right to vote at any votes shall be taken by states, the represen- election for the choice of electors for Presitation from each state having one vote: a dent and Vice President of the United States, quorum for this purpose shall consist of a Representatives in Congress, the Executive

member or members from two-thirds of the ®9¢ Judicial officers of a State, or the memstates, and a majority of all the states shall >erS of the Legislature thereof, is denied to be necessary to a choice. And if the House of @"Y Of the male inhabitants of such State, Representatives shall not choose a President eine twenty-one years of age, and citizens whenever the right of choice shall devolve 0! the United States, or in any way abridged, upon them, before the fourth day of March except for participation in rebellion, or other next following, then the Vice-President shall ¢‘ime, the basis of representation therein shall act as President, as in the case of the death ¢ reduced in the Proportion which the numor other constitutional disability of the Pres- >e* of such male citizens shall bear to the ident.—The person having the greatest num- whole number of male citizens twenty-one ber of votes as Vice-President, shall be the Yeats of age in such State. Vice-President, if such number be a majority %€¢- 3. No person shall be a Senator or Repreof the whole number of Electors appointed, S¢mtative in Congress, or elector of President and if no person have a majority, then from and Vice President, or hold any office, civil the two highest numbers on the list, the Sen- °F military, under the United States, or under ate shall choose the Vice-President; a quorum 2PY State, who, having previously taken an for the purpose shall consist of two-thirds of Oath, as a member of Congress, or as an officer the whole number of Senators, anda majority 0! the United States, or as a member of any of the whole number shall be necessary to a tate legislature, or as an executive or judichoice. But no person constitutionally ineli- cial officer of any State, to support the Congible to the office of President shall be eligible Sttution of the United States, shall have ento that of Vice-President of the United States. 848€d 1n insurrection or rebellion against the same, or given aid or comfort to the enemies

ArT. XIII thereof. But Congress may by a vote of two-

Dec. 18, 1865 thirds of each House, remove such disability.

sec. 1. Neither slavery nor involuntary servi- Sec. 4. The validity of the public debt of the

tude, except as a punishment for crime United States, authorized by law, including whereof the party shall have been duly con- debts incurred for payment of pensions and victed, shall exist within the United States, bounties for services in suppressing insurrecor any place subject to their jurisdiction. tion or rebellion, shall not be questioned. But

o

148 DOCUMENTS OF AMERICAN History neither the United States nor any State shall tion of intoxicating liquors within, the imporassume or pay any debt or obligation incurred _ tation thereof into, or the exportation thereof in aid of insurrection or rebellion against the from the United States and all territory sub-

United States, or any claim for the loss or ject to the jurisdiction thereof for beverage emancipation of any slave; but all such debts, purposes is hereby prohibited. obligations and claims shall be held illegal and The Congress and the several States shall

void. have concurrent power to enforce this article

_ Sec. 5. The Congress shall have power to en- by appropriate legislation.

force, by appropriate legislation, the pro- This article shall be inoperative unless it

visions of this article. shall have been ratified as an amendment to

Art. XV the Constitution by the legislatures of the

March 30. 1870 several States, as provided in the Constitution, Sec. 1. The right of citizens of the United “ttm Seven years from the date of the subStates to vote shall not be denied or abridged mission hereof to the States by Congress.

by the United States or by any State on ac- ArT. XIX

count of race, color, or previous condition of August 26, 1920

servitude— The right of citizens of the United States to

tion— Sex.

Sec. 2. The Congress shall have power to vote shall not be denied or abridged by the enforce this article by appropriate legisla- United States or by any States on account of

Art. XVI The Congress shall have power by appro-

February 25, 1913 priate legislation to enforce the provisions of The Congress shall have power to lay and this article.

collect taxes on incomes, from whatever Art. XX source derived, without apportionment among February 6, 1933

the several States and without regard to any Sec. 1. The terms of the ‘President and Vice-

census or enumeration. President shall end at noon on the twentieth

Art. XVII day of January, and the terms of Sena-

May 31, 1913 tors and Representatives at noon on the third The Senate of the United States shall be ay of January, of the years in which such composed of two senators from each State, ‘terms would have ended if this article had elected by the people thereof, for six years: not been ratified; and the terms of their sucand each Senator shall have one vote. The éSsors shall then begin. electors in each State shall have the qualifica- S€¢- 2. The Congress shall assemble at tions requisite for electors of the most num- east once in every year, and such meeting

erous branch of the State legislature. shall begin at noon on the third day of JanuWhen vacancies happen in the representa- 2"Y; unless they shall by law appoint a differ-

tion of any State in the Senate, the executive ¢nt day.

authority of such State shall issue writs of €¢- 3. If, at the time fixed for the beginelection to fill such vacancies: Provided, That ng of the term of the President, the the legislature of any State may empower the President-elect shall have died, the Viceexecutive thereof to make temporary appoint- President-elect shall become President. If a ments until the people fill the vacancies by President shall not have been chosen before

election as the legislature may direct. the time fixed for the beginning of his term, This amendment shall not be so construed OF if the President-elect shall have failed to as to affect the election or term of any senator alify, then the Vice-President-elect shall chosen before it becomes valid as part of the act as President until a President shall have

Constitution. qualified; and the Congress may by law provide for the case wherein neither a President-

ArT. XVIII elect nor a Vice-President-elect shall have

January 29, 1919 qualified, declaring who shall then act as PresAfter one year from the ratification of this ident, or the manner in which one who is to article, the manufacture, sale, or transporta- act shall be selected, and such person shall act

OBJECTIONS TO THE FEDERAL CONSTITUTION 149 accordingly until a President or Vice-Presi- to the Constitution of the United States 1s

dent shall have qualified. hereby repealed. . . . sec. 4. The Congress may by law provide for the case of the death of any of the persons

from whom the House of Representatives Art. XXII may choose a President whenever the right of February 26, 1951 choice shall have devolved upon them, and Sec. 1. No person shall be elected to the for the case of the death of any of the per- oface of the President more than twice, and sons trom whom the Senate may choose a 49 person who has held the office of PresiVice-President whenever the right of choice dent, or acted as President for more than

shall have devolved upon them. two years of a term to which some other Sec. 5. Sections 1 and 2 shall take effect on person was elected President shall be elected the 15th day of October following the ratifica- to the office of the President more than

tion of this article. once. But this Article shall not apply to any

Sec. 6. This article shall be inoperative un- person holding the office of President when less it shall have been ratified as an amend- this Article was proposed by the Congress, ment to the Constitution by the legislatures and shall not prevent any person who may of three-fourths of the several States within be holding the office of President, or acting seven years from the date of its submission. as President, during the term within which

. this Article becomes operative from holding ArT. XXI the office of President or acting as President

December 5, 1933 during the remainder of such term. Sec. 1. The eighteenth article of amendment

88. OBJECTIONS TO THE FEDERAL CONSTITUTION Letter of Robert Yates and John Lansing to the Governor of New York 1787

(J. Elliot, ed. Debates in the Several State Conventions on the Adoption of the Federal Constitution, 1861 ed., Vol. I, p. 480 ff.) Yates and Lansing, delegates to the Federal Con- 2nd. A conviction of the impracticability vention from New York, refused to sign the of establishing a general government, perConstitution; Alexander Hamilton alone signed vading every part of the United States, and from New York ‘State. Opposition to the new extending essential benefits to all.

Constitution in New York was intense, and 0 licit q Gned

ratification was secured only after nine other UF Powers were explicit, an con ne to

States had already ratified. See, E. W. Spauld- the sole and express purpose of revising the ing, New York in the Critical Period, 1783~ Articles of Confederation, and reporting such 1789; O. G. Libby, Geographical Distribution of alterations and provisions therein, as should the Vote of the Thirteen States on the Federal render the Federal Constitution adequate to Constitution; C. E. Miner, Ratification of the the exigencies of government, and the preser-

Federal Constitution by the State of New vation of the Union.

York. From these expressions, we were led to be. . . We beg leave, briefly, to state some lieve that a system of consolidated govern-

cogent reasons, which, among others, influ-§ ment could not, in the remotest degree, have enced us to decide against a consolidation of | been in contemplation of the legislature of this

the states. These are reducible into two state: for that so important a trust, as the

heads :— adopting measures which tended to deprive Ist. The limited and well-defined powers the state government of its most essential under which we acted, and which could not. rights of sovereignty, and to place it in a

on any possible construction, embrace an idea dependent situation, could not have been con-

of such magnitude as to assent to a general fided by implication; and the circumstance,

constitution, in subversion of that of the that the acts of the Convention were to

state. recelve a state approbation in the last resort.

150 DocuMENTS'OF AMERICAN History forcibly corroborated the opinion that our dispersed situation of its inhabitants, and the powers could not involve the subversion of a insuperable difficulty of controlling or counConstitution which, being immediately de- teracting the views of a set of men (however rived from the people, could only be abolished unconstitutional and oppressive their acts by their express consent, and not by a legisla- might be) possessed of all the powers of govture, possessing authority vested in them for ernment, and who, from their remoteness its preservation. Nor could we suppose that, from their constituents, and necessary perif it had been the intention of the legislature manency of office, could not be supposed to

to abrogate the existing confederation, they be uniformly actuated by an attention to would, in such pointed terms, have directed their welfare and happiness; that, however the attention of their delegates to the revision wise and energetic the principles of the genand amendment of it, in total exclusion of eral government might be, the extremities of

every other idea. the United States could not be kept in due Reasoning in this manner, we were of submission and obedience to its laws, at the opinion that the leading feature of every distance of many hundred miles from the seat amendment ought to be the preservation of of government; that, if the general legislature

the individual states in their uncontrolled con- was composed of so numerous a body of men stitutional rights, and that, in reserving these, as to represent the interests of all the inhabia mode might have been devised of granting to tants of the United States, in the usual and the Confederacy, the moneys arising from a true ideas of representation, the expense of general system of revenue, the power of reg- supporting it would become intolerably burulating commerce and enforcing the observ- densome; and that, if a few only were vested ance of foreign treaties, and other necessary with a power of legislation, the interests of a

matters of less moment. great majority of the inhabitants of the

Exclusive of our objections originating United States must necessarily be unknown; from the want of power, we entertained an or, if known, even in the first stages of the opinion that a general government, however operations of the new government, unatguarded by declarations of rights, or caution- tended to. ary provisions, must unavoidably, in a short These reasons were, in our opinion, contime, be productive of the destruction of the clusive against any system of consolidated civil liberty of such citizens who could be government: to that recommended by the effectually coerced by it, by reason of the Convention, we suppose most of them very extensive territory of the United States, the forcibly apply... .

89. BAYARD & WIFE v. SINGLETON North Carolina Reports, 1 Martin, 42 1797

The Assembly of North Carolina, in 1785, passed portant and momentous subject; and that nota law requiring the Court to dismiss on motion withstanding the great reluctance they might

any suit brought by a person whose property fee] against involving themselves in a dispute had been confiscated by the State during the vith the Legislature of the State, yet no obWar of Independence, against the purchasers, ject of concern or respect could come in purchasers from the commissioners of confis- CO™Mpetition or authorize them to dispense

on affidavit of the defendants that they were we ; .

cated property. The decision of the Court is one with the duty they owed the public, In CONSEof the earliest discussions of the right of a court quence of the trust they were invested with

to declare a legislative act void. under the solemnity of their oaths.

That they therefore were bound to declare The Court made a few observations on our’ that they considered, that whatever disabili-

constitution and system of government. ... ties the persons under whom the plaintiffs In the course of which the Judges observed were said to derive their titles, might justly that the obligation of their oaths, and the have incurred, against their maintaining or duty of their office required them in that prosecuting any suits in the Courts of this situation, to give their opinion on that im- State; yet that such disabilities in their nature

WASHINGTON’S First INAUGURAL ADDRESS 151 were merely personal, and not by any means might with equal authority, not only render capable of being transferred to the present themselves the Legislators of the State for plaintiffs, either by descent or purchase; and life, without any further election of the peothat these plaintiffs being citizens of one of ple, but from thence transmit the dignity and the United States, are citizens of this State, authority of legislation down to their heirs by the confederation of all the States; which male forever.

is to be taken as a part of the law of the But that it was clear, that no act they could land, unrepealable by any act of the General pass, could by any means repeal or alter the

Assembly. constitution, because if they could do this, That by the constitution every citizen had they would at the same instant of time, deundoubtedly a right to a decision of his stroy their own existence as a Legislature, property by a trial by jury. For that if the and dissolve the government thereby estab-

Legislature could take away this right, and lished. Consequently the constitution (which require him to stand condemned in his prop- the judicial was bound to take notice of as erty without a trial, it might with as much much as of any other law whatever) standing authority require his life to be taken away in full force as the fundamental law of the without a trial by jury, and that he should land, notwithstanding the act on which the stand condemned to die, without the formality present motion was grounded, the same act

of any trial at all: that if the members of must of course, in that instance, stand as the General Assembly could do this, they abrogated and without any effect.

90. WASHINGTON’S FIRST INAUGURAL ADDRESS April 30, 1789 (Richardson, ed. Messages and Papers, Vol. I, p. 51) The first Congress was supposed to meet March quent interruptions in my health to the grad-

a quorum, and the Senate did not organize unti : .

4, 1789, but not pate April ; ae me House have ual waste committed on it by time. On the

April 5. On the 6th of April the electoral votes other ant ne magne : ne nny coutey

were counted, and Washington and Adams were ken announced as President and _ Vice-President. ca ca me, Denged su be} clentétocjawa en in an th the Charles Thomson was sent to notify Washington W!Sest and most experienced of her citizens a

of his election, and on April 16 Washington set distrustful scrutiny into his qualifications, out from Mount Vernon for New York. For a could not but overwhelm with despondence

description of the inauguration, see, The one who (inheriting inferior endowments Journal of William Maclay, ch. i; C. Bowers, from nature and unpracticed in the duties of Jefferson and Hamilton, ch. i; R. W. Griswold, civil administration) ought to be peculiarly The Republican Court; J. B. McMaster, With conscious of his own deficiencies. In this con-

the Fathers, p. 150 i. flict of emotions all I dare aver is that it has

Fellow-Citizens of the Senate and of the been my faithful study to collect my duty

House of Representatives: from a just appreciation of every circum-

Among the vicissitudes incident to life no — stance by which it might be affected. All I dare event could have filled me with greater anxie- hope is that if, in executing this task, I have

ties than that of which the notification was been too much swayed by a grateful rememtransmitted by your order, and received on brance of former instances, or by an affectionthe 14th day of the present month. On the ate sensibility to this transcendent proof of one hand, I was summoned by my country, the confidence of my fellow-citizens, and have whose voice I can never hear but with venera- thence too little consulted my incapacity as tion and love, from a retreat which I had _ well as disinclination for the weighty and unchosen with the fondest predilection, and, in tried cares before me, my error will be palmy flattering hopes, with an immutable de- liated by the motives which mislead me, and cision, as the asylum of my declining years— its consequences be judged by my country a retreat which was rendered every day more with some share of the partiality in which necessary as well as more dear to me by the _ they originated. addition of habit to inclination, and of fre- Such being the impressions under which I

152 DOCUMENTS OF AMERICAN HIsToRY have, in obedience to the public summons, communities and interests, so, on another, repaired to the present station, it would be that the foundation of our national policy will peculiarly improper to omit in this first official be laid in the pure and immutable principles of act my fervent supplications to that Almighty private morality, and the preéminence of free

Being who rules over the universe, who pre- government be exemplified by all the attrisides in the councils of nations, and whose butes which can win the affections of its citiprovidential aids can supply every human de- zens and command the respect of the world. I fect, that His benediction may consecrate to dwell on this prospect with every satisfaction the liberties and happiness of the people of which an ardent love for my country can inthe United States a Government instituted by spire, since there is no truth more thoroughly themselves for these essential purposes, and established than that there exists in the econmay enable every instrument employed in omy and course of nature an indissoluble its administration to execute with success the union between virtue and happiness; between

functions allotted to his charge....No duty and advantage; between the genuine people can be bound to acknowledge and maxims of an honest and magnanimous policy adore the Invisible Hand which conducts the and the solid rewards of public prosperity affairs of men more than those of the United and felicity; since we ought to be no less

States. Every step by which they have ad- persuaded that the propitious smiles of vanced to the character of an independent Heaven can never be expected on a nation nation seems to have been distinguished by that disregards the eternal rules of order and some token of providential agency; and in right which Heaven itself has ordained; and the important revolution just accomplished in since the preservation of the sacred fire of the system of their united government the liberty and the destiny of the republican tranquil deliberations and voluntary consent model of government are justly considered, of so many distinct communities from which perhaps, as deeply, as finally, staked on the

the event has resulted can not be compared experiment intrusted to the hands of the with the means by which most governments American people. have been established without some return of Besides the ordinary objects submitted to pious gratitude, along with an humble antici- your care, it will remain with your judgment pation of the future blessings which the past to decide how far an exercise of the occa-

seem to presage. .. . sional power delegated by the fifth article of

By the article establishing the executive the Constitution is rendered expedient at the department it is made the duty of the Presi- present juncture by the nature of objections dent “to recommend to your consideration which have been urged against the system, or such measures as he shall judge necessary and by the degree of inquietude which has given expedient.” The circumstances under which I birth to them... . now meet you will acquit me from entering To the foregoing observations I have one into that subject further than to refer to the to add, which will be most properly addressed great constitutional charter under which you to the House of Representatives. It concerns are assembled, and which, in defining your myself, and will therefore be as brief as pospowers, designates the objects to which your sible. When I was first honored with a call attention Is to be given. It will be more con- into the service of my country, then on the sistent with those circumstances, and far more eve of an arduous struggle for its liberties, congenial with the feelings which actuate me, the light in which I contemplated my duty to substitute, in place of a recommendation of | required that I should renounce every peparticular measures, the tribute that is due to cuniary compensation. From this resolution I the talents, the rectitude, and the patriotism have in no instance departed; and being still which adorn the characters selected to devise under the impressions which produced it, I and adopt them. In these honorable qualifica- must decline as inapplicable to myself any tions I behold the surest pledges that as on one _ share in the personal emoluments which may

side no local prejudices or attachments, no be indispensably included in a permanent separate views nor party animosities, will mis- provision for the executive department, and direct the comprehensive and equal eye which must accordingly pray that the pecuniary estiought to watch over this great assemblage of mates for the station in which I am placed

Tue Jupicrary Act or 1789 153 may during my continuance in it be limited to with opportunities for deliberating in perfect

such actual expenditures as the public good tranquillity, and dispositions for deciding

may be thought to require. with ‘unparalleled unanimity on a form of

Having thus imparted to you my sentiments government for the security of their union as they have been awakened by the occasion and the advancement of their happiness, so which brings us together, I shall take my His divine blessing may be equally cons picupresent leave; but not without resorting once ous in the enlarged views, the temperate more to the benign Parent of the Human Race consultations, and the wise measures on in humble supplication that, since He has which the success of this Government must been pleased to favor the American people depend.

91. THE JUDICIARY ACT OF 1789 September 24, 1789

(U. S. Statutes at Large, Vol. I, p. 73 ff.) The Constitution provided only for a Supreme _ tricts, except those of Maine and Kentucky, Court and “such inferior Courts as the Congress shall be divided into three circuits, and be may from time to time establish”, thus leaving called the eastern, the middle, and the souththe whole question of the nature and the or- ern circuit. That the eastern circuit shall con+

ganization of the judiciary to the discretion of . . . Congress. The framework of the American ju- sist of the districts of New Hampshire,

dicial system was created in the Act of 1789. Massachusetts, Connecticut, and New York;

The determination of the first Congress to that the middle circuit shall consist of the

create a federal judiciary was of immense im- districts of New Jersey, Pennsylvania, Dela: portance in developing American nationalism. ware, Maryland, and Virginia; and that the See, C. Warren, Congress, The Constitution, and southern circuit shall consist of the districts

the Supreme Courts E. eaeC. Suiprem Aner of South Carolina and Georgia; and that can Judiciary; Warren, e Supreme Cour r er in United States History, 1928 ed. Vol. I, ch. i. me oe ean oe ae An Act to establish the Judicial Courts of — called Circuit Courts, and shall consist of any

the United States. two justices of the Supreme Court and the

Sec. 1. Be it enacted, That the supreme district judge of such districts, any two of court of the United States shall consist whom shall constitute a quorum. Provided, of a chief justice and five associate justices, That no district judge shall give a vote in any

any four of whom shall be a quorum, and_ case of appeal or error from his own decishall hold annually at the seat of government sion; but may assign the reasons of such his

two sessions, the one commencing the first decision... . Monday of February, and the other the first Sec. 9. That the district courts shall have, Monday of August. That the associate justices exclusively of the courts of the several States,

shall have precedence according to the date cognizance of all crimes and offences that of their commissions, or when the commis- shall be cognizable under the authority of the sions of two or more of them bear date on United States, committed within their rethe same day, according to their respective spective districts, or upon the high seas; where

ages. no other punishment than whipping, not exSec. 2. That the United States shall be,and ceeding thirty stripes, a fine not exceeding they hereby are, divided into thirteen districts, one hundred dollars, or a term of imprison-

to be limited and called as follows, ... ment not exceeding six months, is to be in-

Sec. 3. That there be a court called a_ flicted; and shall also have exclusive original District Court in each of the aforementioned cognizance of all civil cases of admiralty and districts, to consist of one judge, who shall maritime jurisdiction, including all seizures reside in the district for which he is appointed, under laws of impost, navigation, or trade of and shall be called a District Judge, and shall the United States. ... And shall also have

hold annually four sessions, .. . cognizance, concurrent with the courts of the Sec. 4. That the beforementioned dis- several States, or the circuit courts, as the

154 DOCUMENTS OF AMERICAN HIsToRY case may be, of all causes where an alien sues the United States shall be by jury. The Su-

for a tort only in violation of the law of preme Court shall also have appellate juris-

nations or a treaty of the United States. And diction from the circuit courts and courts of shall also have cognizance, concurrent as last the several states in the cases hereinafter mentioned, of all suits at common law where specially provided for; and shall have power the United States sue, and the matter in dis- to issue writs of prohibition to the district pute amounts, exclusive of costs, to the sum _ courts, when proceeding as courts of admiralty or value of one hundred dollars. And shall also and maritime jurisdiction, and writs of maz-

have jurisdiction exclusively of the courts of damus, in cases warranted by the principle the several States, of all suits against consuls and usages of law, to any courts appointed, or vice-consuls, except for offences above the or persons holding office under the authority description aforesaid. And the trial of issues of the United States... . .

in fact, in the district courts, in all cases SEc. 25. That a final judgment or decree except civil causes of admiralty and maritime in any suit, in the highest court of law or

jurisdiction, shall be by jury... . equity of a State in which a decision in the SEC. 11. That the circuit courts shall have suit could be had, where is drawn in question original cognizance, concurrent with the courts the validity of a treaty or statute of, or an of the several States, of all suits of a civil authority exercised under, the United States, nature at common law or in equity, where and the decision is against their validity; or the matter in dispute exceeds, exclusive of where is drawn in question the validity of a costs, the sum or value of five hundred dollars, statute of, or an authority exercised under, and the United States are plaintiffs or peti- any State, on the ground of their being retioners; or an alien is a party, or the suit is pugnant to the constitution, treaties, or laws between a citizen of the State where the suit of the United States, and the decision is in is brought and a citizen of another State. And favour of such their validity, or where is shall have exclusive cognizance of all crimes drawn in question the construction of any and offences cognizable under the authority of | clause of the constitution, or of a treaty, or the United States, except where this act other- statute of, or commission held under, the wise provides, or the laws of the United States United States, and the decision is against the Shall otherwise direct, and concurrent juris- title, right, privilege, or exemption, specially diction with the district courts of the crimes set up or claimed by either party, under such and offences cognizable therein... . And _ clause of the said Constitution, treaty, statute, the circuit courts shall also have appellate or commission, may be re-examined, and rejurisdiction from the district courts under the versed or affirmed in the Supreme Court of regulations and restrictions hereinafter pro- the United States upon a writ of error, the

vided. ... citation being signed by the chief justice, or

Sec. 13. That the Supreme Court shall have judge or chancellor of the court rendering or exclusive jurisdiction of all controversies of passing the judgment or decree complained a civil nature, where a state is a party, except of, or by a justice of the Supreme Court of

, between a state and its citizens; and except the United States, in the same manner and

also between a state and citizens of other under the same regulations, and the writ shall states, or aliens, in which latter case it shall have the same effect as if the judgment or have original but not exclusive jurisdiction. decree complained of had been rendered or And shall have exclusively all such jurisdic- passed in a circuit court, and the proceedings tion of suits or proceedings against ambassa- upon the reversal shall also be the same, exdors or other public ministers, or their domes- cept that the Supreme Court, instead of retics, or domestic servants, as a court of law manding the cause for a final decision as can have or exercise consistently with the law before provided, may, at their discretion, if of nations; and original, but not exclusive the cause shall have been once remanded bejurisdiction of all suits brought by ambassa- fore, proceed to a final decision of the same, dors or other public ministers, or in which a and award execution. But no other error shall consul or vice-consul shall be a party. And be assigned or regarded as a ground of rethe trial of issues in fact in the Supreme _ versal in any such case as aforesaid, than such Court in all actions at law against citizens of | as appears on the face of the record, and im-

VA. RESOLUTIONS ON ASSUMPTION OF STATE DEBTS 155 mediately respects the before-mentioned preme Court in which the United States shall questions of validity or construction of the be concerned, and to give his advice and said constitution, treaties, statutes, commis- opinion upon questions of law when required

sions, or authorities in dispute. .. . by the President of the United States, or

sec. 35. ... And there shall also be ap- when requested by the heads of any of the pointed a meet person learned in the law to departments, touching any matters that may act as attorney-general for the United States, concern their departments, and shall receive who shall be sworn or affirmed to a faithful such compensation for his services as shal] execution of his office; whose duty it shall be _ by law be provided. to prosecute and conduct all suits in the Su-

92. VIRGINIA RESOLUTIONS ON THE ASSUMPTION OF STATE DEBTS December 16, 1790

(W. W. Hening, ed. Statutes at Large of Virginia, Vol. XIII, p. 237 ff.) The opposition of Virginia to Hamilton’s plan agricultural country like this, therefore to for the assumption of the State debts arose erect, and concentrate, and perpetuate a large from the fact that Virginia had already made monied interest, is a measure which your provision for a large part of her Revolutionary Wy emorialists apprehend must in the course debt. The Virginia remonstrance was . drafted of human events produce one or other of two

by Patrick Henry, and caused Hamilton to . . .

remark, “This is the first symptom of a spirit evils, the prostration of agriculture at the which must either be killed, or will kill the feet of commerce, or a change in the present

Constitution of the United States.” form of foederal government, fatal to the exIn the House of Delegates, “TH General Acsembly. pass. by various

Thursday, the 16th of December, 1790. other parts of the said act which they appreThe General Assembly of the Commonwealth _hend will have a dangerous and impolitic tend-

of Virginia to the United States in Con- ency, and proceed to show the injustice of

gress assembled. it as it applies to this Commonwealth. .. .

Represent, Your memorialists turn away from the imThat it is with great concern they find policy and injustice of the said act, and view

themselves compelled, from a sense of duty, it in another light, in which to them it appears to call the attention of Congress to an act _ still more odious and deformed. of their last session, intitled “An act making During the whole discussion of the foederal provision for the debt of the United States,” constitution by the convention of Virginia,

which the General Assembly conceive neither your memorialists were taught to believe |

policy, justice nor the constitution warrants. “That every power not granted was retained;”’

Republican policy in the opinion of your under this impression and upon this positive memorialists could scarcely have suggested condition, declared in the instrument of ratithose clauses in the aforesaid act, which limit fication, the said government was adopted by the right of the United States, in their re- the people of this Commonwealth; but your demption of the public debt. On the contrary memorialists can find no clause in the constithey discern a striking resemblance between _ tution authorizing Congress to assume the this system and that which was introduced debts of the states! As the guardians then of into England, at the revolution; a system the rights and interests of their constituents, which has perpetuated upon that nation an as sentinels placed by them over the ministers enormous debt, and has moreover insinuated _ of the foederal government, to shield it from into the hands of the executive, an unbounded _ their encroachments, or at least to sound the influence, which pervading every branch of alarm when it is threatened with invasion,

the government, bears down all opposition, they can never reconcile it to their con-

and daily threatens the destruction of every- sciences, silently to acquiesce in a measure, thing that appertains to English liberty. The which violates that hallowed maxim: a maxim Same causes produce the same effects! In an on the truth and sacredness of which the

156 DOCUMENTS OF AMERICAN History foederal government depended for its adop- existed under the confederation, and resorting

tion in this Commonwealth. But this injudi- to that standard there can be no doubt that cious act not only deserves the censure of the in the present question the rights of states as General Assembly, because it is not warranted contracting with the United States must be by the constitution of the United States, but considered as sacred. because it is repugnant to an express provision The General Assembly of the Commonof that constitution; this provision is “That wealth of Virginia confide so fully in the all debts contracted and engagements entered justice and wisdom of Congress upon the into, before the adoption of this constitution, present occasion, as to hope that they will shall be as valid against the United States revise and amend the aforesaid act generally, under this constitution as under the confeder- and repeal in particular, so much of it as ation,” which amounts to a constitutional relates to the assumption of the state debts. | ratification of the contracts respecting the December the 23d., 1790. Agreed to by the

state debts in the situation in which they Senate.

OF THE BANK

93. HAMILTON’S OPINION ON THE CONSTITUTIONALITY

February 23, 1791 (The Works of Alexander Hamilton, ed. by J. C. Hamilton, Vol. IV, p. 104 ff.)

December 14, 1790, Hamilton presented to Con- That every power vested in a government is gress his plan for the establishment of a national jn jts nature sovereign, and includes, by force bank. A bill embodying most of the features of of the term a right to employ all the means Hamilton’s plan passed Congress February 8, requisite and fairly applicable to the attain-

1791. Washington, doubtful of the constitu- ment of the ends of such power, and which tionality of the measure, requested Hamilton, ae

Jefferson, and Randolph to submit written © not precluded by restrictions and ex cepopinions on this question. For Jefferson’s opin- tions specified in the Constitution, or not imion, see Doc. No. 94. Randolph submitted two Moral, or not contrary to the essential ends opinions, one adverse, one ambiguous. Hamil- of political society. .. . ton’s opinion is one of the ablest of his papers: If it would be necessary to bring proof to it contained the substance of the argument aq proposition so clear, as that which affirms subsequently adopted by Marshall in his deci- that the powers of the federal government, sion in the case of Mc Culloch v. Maryland. 45 to its objects, were sovereign, there is a Washington accepted Hamilton's argument, and clause of the Constitution which would be signed the bill, February 25. On the First Bank, decisive. It is that which declares that the and Documentary History of the Bank of the Constitution, and the laws of the United

see, M. St. C. Clarke and D. A. Hall, Legislative aan

United States; W. G. Sumner, History of States made in pursuance of it, . . . shall be Banking in the United States, Vol. I. the supreme law of the land. The power which

can create a supreme law of the land, in any . . . Inentering upon the argument it ought case, is doubtless sovereign as to such case. to be premised that the objections of the Sec- This general and indisputable principle puts

retary of State and the Attorney-General are at once an end to the abstract question, founded on a general denial of the authority whether the United States have power to of the United States to erect corporations. erect a corporation; that is to say, to give a The latter, indeed, expressly admits, that if legal or artificial capacity to one or more there be anything in the bill which is not persons, distinct from the natural. For it is warranted by the Constitution, it is the clause unquestionably incident to sovereign power to

of incorporation. erect corporations, and consequently to that Now it appears to the Secretary of the of the United States, in relation to the ob-

Treasury that this general principle is inher- jects intrusted to the management of the govent in the very definition of government, and ernment. The difference is this: where the

essential to every step of the progress to be authority of the government is general, it made by that of the United States, namely: can create corporations in all cases; where it

7 HAMILTON’S OPINION ON THE BANK 157 is confined to certain branches of legislation, It is essential to the being of the national it can create corporations only in those government, that so erroneous a conception

cases. ... of the meaning of the word necessary should

It is not denied that there are implied as be exploded. well as express powers, and that the former It is certain, that neither the grammatical are as effectually delegated as the Jatter. And nor popular sense of the term requires that

for the sake of accuracy it shall be mentioned, construction. According to both, necessary that there is another class of powers, which often means no more than needful, requisite,

may be properly denominated resulting incidental, useful, or conducive to... . And powers. It will not be doubted, that if the it is the true one in which it is to be understood United States should make a conquest of any as used in the Constitution. The whole turn of the territories of its neighbours, they would of the clause containing it indicates, that it possess sovereign jurisdiction over the con- was the intent of the Convention, by that quered territory. This would be rather a re- clause, to give a liberal latitude to the exersult, from the whole mass of the powers of cise of the specified powers. The expressions

‘the government, and from the nature of have peculiar comprehensiveness. They are political society, than a consequence of either “to make all Jaws necessary and proper for

of the powers specially enumerated... . carrying into execution the foregoing powers, It is conceded that zmplied powers are to and all other powers, vested by the Constitube considered as delegated equally with ex- tion in the government of the United States, press ones. Then it follows, that as a power of | or in any department or officer thereof. erecting a corporation may as well be implied To understand the word as the Secretary of as any other thing, it may as well beemployed State does, would be to depart from its ob-

as an instrument or mean of carrying into’ vious and popular sense, and to give it a execution any of the specified powers, as any __ restrictive operation, an idea never before other instrument or mean whatever. The only — entertained. It would be to give it the same question must be, in this, as in every other force as if the word absolutely or indispencase, whether the mean to be employed, or in sably had been prefixed to it. . . . this instance, the corporation to be erected, The degree in which a measure is necessary, has a natural relation to any of the acknowl- can never be a test of the legal right to adopt edged objects or lawful ends of the govern- it; that must be a matter of opinion, and can ment. Thus a corporation may not be erected only be a test of expediency. The relation by Congress for superintending the police of between the measure and the end; between the city of Philadelphia, because they are not the mature of the mean employed towards the authorized to regulate the police of that city. execution of a power, and the object of that

But one may be erected in relation to the power, must be the criterion of constitutioncollection of taxes, or to the trade with for- ality, not the more or less of necessity or eign countries, or to the trade between the wéility. .. . States, or with the Indian tribes; because it is This restrictive interpretation of the word the province of the federal government to necessary is also contrary to this sound maxim regulate those objects and because it is in- of construction; namely, that the powers concident to a general sovereign or legislative tained in a constitution of government, espepower to regulate a thing, to employ all the cially those which concern the general admin-

means which relate to its regulation to the istration of the affairs of a country, its best and greatest advantage. . . . finances, trade, defence &c., ought to be conThrough this mode of reasoning respecting strued liberally in advancement of the public

the right of employing all the means requisite good. ... The means by which national to the execution of the specified powers of exigencies are to be provided for, national inthe government, it is objected, that none but conveniences obviated, national prosperity necessary and proper means are to be em- promoted, are of such infinite variety, extent,

ployed; and the Secretary of State maintains, and complexity, that there must of necessity that no means are to be considered as neces- _be great latitude of discretion in the selection sary but those without which the grant of the and application of those means. Hence, con-

power would be nugatory. .. . sequently, the necessity and propriety of

158 DOCUMENTS OF AMERICAN HIsTorRyY exercising the authorities intrusted to a gov- clause, can have no restrictive operation der-

ernment on principles of liberal construc- ogating from the force of this principle; in-

tion... . deed, that the degree in which a measure is or

But the doctrine which is contended for is not necessary, cannot be a test of constituis not chargeable with the consequences im- tional right, but of expediency only.

puted to it. It does not affirm that the na- 5. That the power to erect corporations is tional government is sovereign in all respects, not to be considered as an independent or but that it is sovereign to a certain extent; substantive power, but as an incidental and that is is, to the extent of the objects of its azxiliary one, and was therefore more properly

specified powers. left to implication than expressly granted.

It leaves, therefore, a criterion of what is 6. That the principle in question does not constitutional and of what is not so. This extend the power of the government beyond criterion is the end, to which the measure _ the prescribed limits, because it only affirms relates as a mean. If the end be clearly com- a power to incorporate for purposes within

prehended within any of the specified powers, the sphere of the specified powers.

and if the measure have an obvious relation And lastly, that the right to exercise such to that end, and is not forbidden by any par- a power in certain cases is unequivocally ticular provision of the Constitution, it may granted in the most positive and compresafely be deemed to come within the compass hensive terms... . of the national authority. There is also this A hope is entertained that it has, by this further criterion, which may materially assist time, been made to appear, to the satisfaction

the decision; Does the proposed measure of the President, that a bank has a natural abridge a pre-existing right of any State or relation to the power of collecting taxes— of any individual? If it does not, there is a to that of regulating trade—to that of prostrong presumption in favor of its constitu- viding for the common defence—and that, tionality, and slighter relations to any de- as the bill under consideration contemplates clared object of the Constitution may be the government in the light of a joint pro-

permitted to turn the scale... . prietor of the stock of the bank, it brings It is presumed to have been satisfactorily the case within the provision of the clause shown in the course of the preceding observa- of the Constitution which immediately re-

tions: spects the property of the United States.

1. That the power of the government, as to Under a conviction that such a relation

the objects intrusted to its management, is, subsists, the Secretary of the Treasury, with

in its nature, sovereign. all deference, conceives, that it will result 2. That the right of erecting corporations is as a necessary consequence from the position, one inherent in, and inseparable from, the that all the specified powers of government

idea of sovereign power. are sovereign, as to the proper objects; that 3. That the position, that the government of the incorporation of a bank is a constitu-

the United States can exercise no power but — tional measure; and that the objections taken

such as is delegated to it by its Constitution, to the bill, im this respect, are illdoes not militate against this principle. founded... . 4. That the word necessary, in the general

94. JEFFERSON’S OPINION ON THE CONSTITUTIONALITY OF THE BANK February 15, 1791 (The Writings of Thomas Jefferson, ed. by H. E. Bergh, Vol. ITI, p. 145 ff.) The bill for establishing a national bank, ties, to receive grants of lands; and, so far, in 1791, undertakes, among other things,— is against the laws of mortmain.

1. To form the subscribers into a corpora- 3. To make alien subscribers capable of

tion. holding lands; and so far is against the laws 2. To enable them, in their corporate capaci- of alienage.

JEFFERSON’S OPINION ON THE BANK 159 4. To transmit these lands, on the death of late commerce, are very different acts. He a proprietor, to a certain line of successors; who erects a bank creates a subject of comand so far, changes the course of descents. merce in its bills; so does he who makes a 5. To put the lands out of the reach of bushel of wheat, or digs a dollar out of the forfeiture, or escheat; and so far, is against mines; yet neither of these persons regulates

the laws of forfeiture and escheat. commerce thereby. To make a thing which 6. To transmit personal chattels to succes- may be bought and sold, is not to prescribe sors, in a certain line; and so far, Js against regulations for buying and selling. Besides,

the laws of distribution. if this were an exercise of the power of

7. To give them the sole and exclusive right regulating commerce, it would be void, as of banking, under the national authority; extending as much to the internal commerce and, so far, is against the laws of monopoly. of every state, as it is external. For the 8. To communicate to them a power to make power given to Congress by the Constitution

laws, paramount to the laws of the states; does not extend to the internal regulation for so they must be construed, to protect of the commerce of a state ... which rethe institution from the control of the state mains exclusively with its own legislature; legislatures; and so probably they will be but to its external commerce only, that is

construed. to say, its commerce with another state, or I consider the foundation of the Constitu- with foreign nations, or with the Indian

tion as laid on this ground—that all powers tribes. Accordingly, the bill does not propose not delegated to the United States, by the the measure as a “regulation of trade’’, but as

Constitution, nor prohibited by it to the “productive of considerable advantage to states, are reserved to the states, or to the trade.” people (12th amend.). To take a single step Still less are these powers covered by any beyond the boundaries thus specially drawn other of the special enumerations. around the powers of Congress, is to take II. Nor are they within either of the genera! possession of a boundless field of power, no phrases, which are the two following: —

longer susceptible of any definition. 1. “To lay taxes to provide for the general The incorporation of a bank, and the welfare of the United States:” that is to powers assumed by this bill, have not, in say, “to lay taxes for the purpose of providmy opinion, been delegated to the United ing for the general welfare;” for the laying

States by the Constitution. of taxes is the power, and the general wel-

I. They are not among the powers specially fare the purpose for which the power is to

enumerated. For these are,— be exercised. Congress are not to lay taxes

1. A power to lay taxes for the purpose ad libitum, for any purpose they please; but of paying the debts of the United States. only to pay the debts, or provide for the But no debt is paid by this bill, nor any welfare, of the Union. In like manner, they tax laid. Were it a bill to raise money, its are not to do anything they please, to proorganization in the Senate would condemn vide for the general welfare, but only to

it by the Constitution. lay taxes for that purpose. To consider the 2. To “borrow money”. But this bill neither latter phrase, not as describing the purpose

borrows money nor insures the borrowing of the first, but as giving a distinct and of it. The proprietors of the bank will be independent power to do any act they please just as free as any other money-holders to which might be for the good of the Union, lend, or not to lend, their money to the would render all the preceding and _ subpublic. The operation proposed in the bill, sequent enumerations of power completely first to lend them two millions, and then useless. It would reduce the whole instruborrow them back again, cannot change the ment to a single phrase—that of instituting nature of the latter act, which will still be a Congress with power to do whatever would a payment, and not a loan, call it by what be for the good of the United States; and,

name you please. as they would be the sole judges of the 3. “To regulate commerce with foreign na- good or evil, it would be also a power to do

tions, and among the states, and with the whatever evil they pleased. It is an esIndian tribes.” To erect a bank, and to regu- tablished rule of construction, where a phrase

160 DOCUMENTS OF AMERICAN History will bear either of two meanings, to give the grant of the power would be nugait that which will allow some meaning to tory... . the other parts of the instrument, and not Perhaps bank bills may be a more conthat which will render all the others use- venient vehicle than treasury orders. But a less. Certainly no such universal power was little difference in the degree of convenience

meant to be given them. It was intended to cannot constitute the necessity which the lace them up straitly within the enumerated Constitution makes the ground for assumpowers, and those without which, as means, ing any non-enumerated power. . . . these powers could not be carried into effect. Can it be thought that the Constitution It is known that the very power now pro- intended that, for a shade or two of conposed as a means, was rejected as an end venience, more or less, Congress should be by the Convention which formed the Con- authorized to break down the most ancient stitution. A proposition was made to them, to and fundamental laws of the several states authorize Congress to open canals, and an such as those against mortmain, the laws of amendatory one to empower them to in- alienage, the rules of descent, the acts of corporate. But the whole was rejected; and distribution, the laws of escheat and forfeione of the reasons of objection urged in ture, and the laws of monopoly. debate was, that they then would have a Nothing but a necessity invincible by other power to erect a bank, which would render means, can justify such a prostration of laws, great cities, where there were prejudices and which constitute the pillars of our whole jealousies on that subject, adverse to the system of jurisprudence. Will Congress be

reception of the Constitution. too strait-laced to carry the Constitution into

| 2. The second general phrase is, “to make all honest effect, unless they may pass over the laws necessary and proper for carrying into foundation laws of the state governments, for execution the enumerated powers.” But they _ the slightest convenience to theirs?

can all be carried into execution without a The negative of the President is the shield bank. A bank, therefore, is not necessary, provided by the Constitution to protect, and consequently not authorized by this against the invasions of the legislature,

phrase. 1. The rights of the executive; 2. Of the

It has been much urged that a bank will judiczary; 3. Of the states and state legislagive great facility or convenience in the tures. The present is the case of a right recollection of taxes. Suppose this were true; maining exclusively with the states, and is, yet the Constitution allows only the means consequently, one of those intended by the which are “necessary”, not those which are Constitution to be placed under his protecmerely ‘‘convenient”, for effecting the enu- _ tion.

merated powers. If such a latitude of con- It must be added, however, that, unless struction be allowed to this phrase as to give the President’s mind, on a view of every-

any non-enumerated power, it will go to thing which is urged for and against this every one; for there is no one which in- _ bill, is tolerably clear that it is unauthorized genuity may not torture into a convenience, by the Constitution, if the pro and the con in some way or other, to some one of so _ hang so evenly as to balance his judgment, a long a list of enumerated powers. It would just respect for the wisdom of the legislature swallow up all the delegated powers, and would naturally decide the balance in favor reduce the whole to one phrase, as before of their opinion. It is chiefly for cases where observed. Therefore it was that the Constitu- they are clearly misled by error, ambition, tion restrained them to the necessary means; or interest, that the Constitution has placed a that is to say, to those means without which check in the negative of the President.

95. CHISHOLM v. GEORGIA 2 Dallas, 419 1793

This is probably the most important of the Court, and in the decision of the Court can be early cases which came before the Supreme found a foreshadowing of the nationalism

CHISHOLM V. GEORGIA 161 enunciated by Marshall a decade later. The been used with propriety. But even in that case of Chisholm v. Georgia arose out of the place it would not, perhaps, have comported effort of Chisholm and others, citizens of South with the delicacy of those who ordained and

Carolina and executors of the estate of an established that Constitution. They might

English creditor, to secure compensation from h d th j . j Georgia for property confiscated during the ave annou nce emseives sovereign people Revolution. The Constitution of the United of the United States; but serenely conscious

States provided, Art. III. Sec. 2, that the of the fact, they avoided the ostentatious judicial power of the United States should ex- declaration. ... tend to controversies between States and be- III. I am, thirdly, and chiefly, to examine the tween a State and the citizens of another State. jmportant question now before us, by the Under this provision, could a citizen sue 4 Constitution of the United States, and the State in the Federal Courts? That this clause Jegitimate result of that valuable instrument. authorized such suits against States was denied Under this vi th tj turall by Hamilton in the Federalist, and by Madison ndéer ts view, tac ques lon 1s navura in the debates in the Virginia ratifying Con- subdivided into two others. 1. Could the

vention. “It is not,” said Madison, “in the Constitution of the United States vest a power of individuals to call any state into jurisdiction over the State of Georgia? 2.

court. The only operation it can have, is that, Has the Constitution vested such jurisdiction if a state should wish to bring a suit against a in this Court? I have already remarked, that citizen, it must be brought before the federal jn the practice, and even in the science of court.” (Elliot's Debates, 1861 ed. Vol. Ill, p. politics, there has been frequently a strong 533.) Yet in this case, the Supreme ‘-ourt upheld current against the natural order of things; Supreme Court. Georgia refused to appear be- and an inconsiderate or an interested disfore the Court, denied the validity of the judge- Position to sacrifice the end to the means. ment, and threatened to punish by death any This remark deserves a more particular ilofficial who should attempt to execute the de- lustration. Even in almost every nation, cree of the court. Other states also protested, which has been denominated free, the state and shortly after the decision an amendment has assumed a_ supercilious preéminence was introduced which deprived the federal above the people, who have formed it: Hence courts of Jurisdiction in cases against one of the the haughty notions of state independence, States by citizens of another State. This, the ; eleventh amendment, was ratified January 8, state sovereignty, and state supremacy. .. .

the right of Chisholm to sue Georgia in the . . ; ;

1798. See C. Warren, The Supreme Court in In the United States and in the several

United States History, 1928 ed. Vol. I, ch. ii; States which compose the Union, we go not L. B. Boudin, Government by Judictary, Vol. 1, SO far: but still we go one step farther than ch. vii; H. L. Carson, The Supreme Court; G.J. we ought to go in this unnatural and inMc Ree, James Iredell, Vol. Il; U. B. Phillips, verted order of things. The states rather “Georgia and State Rights,” American Hist. As- than the People for whose sakes the states

soc. Reports, 1901, Vol. I. exist, are frequently the objects which attract and arrest our principal attention. This,

WIitson, J. This is a case of uncommon I believe, has produced much of the conmagnitude. One of the parties to it is a fusion and perplexity, which have appeared State, certainly respectable, claiming to be in several proceedings and several publicasovereign. The question to be determined tions on state-politics, and on the politics, is, whether this State, so respectable and too, of the United States. Sentiments and whose claim soars so high, is amenable to expressions of this inaccurate kind prevail the jurisdiction of the Supreme Court of the in our common, even in our convivial, lan-

United States? This question, important in guage. ...A State, I cheerfully admit, is itself, will depend on others, more important the noblest work of Man: But, Man, him-

still; and may perhaps, be ultimately re- self, free and honest, is, I speak as to this solved into one, no less radical than this— world, the noblest work of God... .

“Do the People of the United States form With the strictest propriety, therefore,

a natione”’... classical and political, our national scene To the Constitution of the United States opens with the most magnificent object which

the term sovereignty is totally unknown. the nation could present: “The People of There is but one place where it could have the United States’ are the first personages

162 DOCUMENTS OF AMERICAN HtstTory introduced. Who were these people? They Constitution will be satisfied that the people were the citizens of thirteen States, each of of the United States intended to form themwhich had a separate constitution and govern- selves into a nation for national purposes. ment, and all of which were connected to- They instituted, for such purposes, a national gether by articles of confederation. To the government, complete in all its parts, with purposes of public strength and felicity, that powers legislative, executive and judiciary ; confederacy was totally inadequate. A requi- and in all those powers extending over the

sition on the several States terminated its whole nation. Is it congruous that, with legislative authority; executive or judicial regard to such purposes, any person, natural authority it had none. In order, therefore, to or artificial, should be permitted to claim

form a more perfect union, to establish successfully an entire exemption from the Justice, to insure domestic tranquillity, to jurisdiction of the national government? provide for the common defense, and to Would not such claims, crowned with sucsecure the blessings of liberty, those people, cess, be repugnant to our very existence as among whom were the people of Georgia, a nation? When so many trains of deducordained and established the present Con- tion, coming from different quarters, con-

stitution. By that Constitution legislative verge and unite at last in the same point, power is vested, executive power is vested, we may safely conclude, as the legitimate

judicial power is vested. result of this Constitution, that the State of

The question now opens fairly to our view, Georgia is amenable to the jurisdiction of could the people of those States, among _ this court. whom were those of Georgia, bind those But, in my opinion, this doctrine rests not States, and Georgia among the others, by upon the legitimate result of fair and conthe legislative, executive, and judicial power clusive deduction from the Constitution: it so vested? If the principles on which I have is confirmed beyond all doubt by the direct founded myself are just and true, this ques- and explicit declaration of the Constitution tion must unavoidably receive an affirmative itself. “The judicial power of the United answer. If those States were the work of States shall extend to controversies between those people, those people, and, that I may two States.”. . . Can the most consummate apply the case closely, the people of Georgia degree of professional ingenuity devise a in particular, could alter, as they pleased, their mode by which this “controversy between

former work; to any degree, they could di- two States” can be brought before a court minish as well as enlarge it. Any or all of of law, and yet neither of those States be the former state powers they could extinguish a defendant? “The judicial power of the or transfer. The inference which necessarily United States shall extend to controversies results is that the Constitution ordained and between a State and citizens of another established by those people, and, still closely State”. Could the strictest legal language

to apply the case, in particular, by the ... describe with more precise accuracy the people of Georgia, could vest jurisdiction or cause now depending before the tribu-

judicial power over those States and over nal?... the State of Georgia in particular. From all, the combined inference is, that

The next question under this head is— _ the action lies. Chief Justice Jay and Justices

Has the Constitution done so? .. . Blair and Cushing concurred. Justice Iredell Whoever considers in a combined and com- __ dissented.

prehensive view the general texture of the

96. WASHINGTON’S PROCLAMATION OF NEUTRALITY April 22, 1793 (Richardson, ed. Messages and Papers, Vol. I, p. 156) The proclamation of Neutrality had the sup- used. The proclamation precipitated a pamphlet port of all the members of Washington’s cabinet. controversy between Hamilton, writing as Note that the word “neutrality” is nowhere ‘“Pacificus” and Madison, writing as ‘“Helvidius”’.

PROCLAMATION ON THE WHISKEY REBELLION 163 See, J. S. Bassett, The Federalist System, p. States carefully to avoid all acts and pro86 ff.; R. Hildreth, History of the United States, ceeding whatsoever which may in any manner Vol. IV, p. 411 ff.; C. M. Thomas, American tend to contravene such disposition.

Neutrality in 1793. And I do hereby also make known that whosoever of the citizens of the United

BY THE PRESIDENT OF THE UNITED STATES States shall render himself liable to punish-

OF AMERICA ment or forfeiture under the law of nations

A PROCLAMATION by committing, aiding, or abetting hostilities Whereas it appears that a state of war against any of the said powers, or by carryexists between Austria, Prussia, Sardinia, ing to any of them those articles which are Great Britain, and the United Netherlands deemed contraband by the modern usage of on the one part and Irance on the other, and nations, will not receive the protection of the

the duty and interest of the United States United States against such punishment or require that they should with sincerity and forfeiture; and further, that I have given good faith adopt and pursue a conduct instructions to those officers to whom it befriendly and impartial toward the belligerent longs to cause prosecutions to be instituted

powers: against all persons who shall, within the I have therefore thought fit by these cognizance of the courts of the United States, presents to declare the disposition of the violate the law of nations with respect to United States to observe the conduct afore- the powers at war, or any of them... . said toward those powers respectively, and to Philadelphia, the 22d of April, 1793,

exhort and warn the citizens of the United G°. WASHINGTON. 97. WASHINGTON’S PROCLAMATION ON THE WHISKEY REBELLION August 7, 1794 (Richardson, ed. Messages and Papers, Vol. I, p. 158) The excise tax of March 3, 1791 upon dis- tion of the laws laying duties upon spirits tilled spirits and stills was part of Hamilton’s distilled within the United States and upon financial policy. It bore with peculiar hardship stills have from the time of the commenceupon the inhabitants of western Pennsylvania ment of those laws existed in some of the

and Virginia who were accustomed to turn their .

corn into whiskey because that was the only way western parts of Pennsy lvania; and

in which it could be transported economically . Whereas the said combinations, proceedto the coast. The dissatisfaction of the west was M8 In a manner subversive equally of the so intense that it resulted in a general flouting Just authority of government and of the of the law, accompanicd by some violence, and rights of individuals, have hitherto effected Washington, on Hamilton’s recommendation, their dangerous and criminal purpose by the ordered out the militia in order to suppress the influence of certain irregular mectings whose rebellion.” See, H. H. Brackenridge, Incidents proceedings have tended to encourage and of the Insurrection in the Western Parts of uphold the spirit of ‘tion b ian Pennsylvania; H. Adams, Gallatin, p. 86 ff.; PROC NE SPARE OF Opposition Dy misrepreW. Findley, History of the Insurrection in the sentations of the laws calculated to render Four Western Counties of Pennsylvania; Pro- ‘hem odious; by endeavors to deter those ceedings of the Executive of the United States Who might be so disposed from accepting Respecting the Insurgents, 1794, with Hamilton’s offices under them through fear of public Report. Washington reported to Congress on his resentment and of injury to person and prop-

handling of the situation in his Sixth Annual erty, and to compel those who had accepted

Vol Tp 162 a ed. Messages and Papers, such offices by actual violence to surrender

- 4. p. or forbear the execution of them; by circu-

BY THE PRESIDENT OF THE UNITED STATES lating vindictive menaces against all those

OF AMERICA who should otherwise, directly or indirectly, A PROCLAMATION aid in the execution of the said laws, or

who, yielding to the dictates of conscience Whereas combinations to defeat the execu- and to a sense of obligation, should them-

164 DOCUMENTS OF AMERICAN HISTORY selves comply therewith; by actually injur- the United States to call forth the militia of ing and destroying the property of persons such State to suppress such combinations and who were understood to have so complied; to cause the laws to be duly executed. And by inflicting cruel and humiliating punish- if the militia of a State where such comments upon private citizens for no other binations may happen shall refuse or be incause than that of appearing to be the friends sufficient to suppress the same, it shall be of the laws; by intercepting the public of- lawful for the President, if the Legislature ficers on the highways, abusing, assaulting, of the United States shall not be in session, and otherwise ill treating them; by going’ to call forth and employ such numbers of tu their houses in the night, gaining admit- the militia of any other State or States most tance by force, taking away their papers, and convenient thereto as may be necessary; .. . committing other outrages, employing for Provided always, That whenever it may be these unwarrantable purposes the agency of necessary in the judgment of the President armed banditti disguised in such manner as_ to use the military force hereby directed to for the most part to escape discovery; and be called forth, the President shall forthwith, Whereas the endeavors of the Legislature and previous thereto, by proclamation, comto obviate objections to the said laws by mand such insurgents to disperse and retire lowering the duties and by other alterations peaceably to their respective abodes within conducive to the convenience of those whom _a_ limited time;” and...

they immediately affect ...and the en- Whereas it is In my judgment necessary

deavors of the executive officers to conciliate under the circumstances of the case to take a compliance with the laws by explanations, measures for calling forth the militia in order by forbearance, and even by particular ac- to suppress the combinations aforesaid, and commodations founded on the suggestion of to cause the laws to be duly executed; and local considerations, have been disappointed I have accordingly determined so to do, feelof their effect by the machinations of per- ing the deepest regret for the occasion, but sons whose industry to excite resistance has withal the most solemn conviction that the increased with every appearance of a disposi- essential interests of the Union demand it, tion among the people to relax in their op- that the very existence of Government and position and to acquiesce in the laws, inso- the fundamental principles of social order much that many persons in the said western are materially involved in the issue, and that

parts of Pennsylvania have at length been the patriotism and firmness of all good hardy enough to perpetrate acts which I am_ citizens are seriously called upon, as ocadvised amount to treason, being overt acts casions may require, to aid in the effectual of levying war against the United States, . .. suppression of so fatal a spirit: avowing as the motives of these outrageous Wherefore, and in pursuance of the proproceedings an intention to prevent by force iso above recited, I, George Washington, of arms the execution of the said laws, ... President of the United States, do hereby to withstand by open violence the lawful command all persons being insurgents as authority of the Government of the United aforesaid, and all others whom it may conStates, and to compel thereby an alteration cern, on or before the Ist day of September in the measures of the Legislature and a re- next to disperse and retire peaceably to their

peal of the laws aforesaid; and respective abodes. And I do moreover warn Whereas by a law of the United States en- all persons whomsoever against aiding, abet-

titled “An act to provide for calling forth ting, or comforting the perpetrators of the the militia to execute the laws of the Union, aforesaid treasonable acts, and do require suppress insurrections, and repel invasions,” all officers and other citizens, according to it is enacted “that whenever the laws of the their respective duties and the laws of the United States shall be opposed or the execu- land, to exert their utmost endeavors to tion thereof obstructed in any State by com- prevent and suppress such dangerous pro-

binations too powerful to be suppressed by ceedings... . the ordinary course of judicial proceedings Philadelphia, the 7th of August, 1794,

... it shall be lawful for the President of G°, WASHINGTON.

THE JAy TREATY 165 98. THE JAY TREATY November 19, 1794 (Malloy, ed. Treaties, Conventions, etc., Vol. I, p. 590 ff.) Contrary to the provisions of the Treaty of the mean time at their discretion, extending 1783, Great Britain had retained control of the their settlements to any part within the said Northwest posts and had failed to make any boundary line, except within the precincts or compensation tor slaves carried away during jurisdiction of any of the said posts. All the Revolution. In addition to these grievances, d trad ithin th “act of old standing, there were more recent ones sett ers ane ira crs, wali tae Precimc's OF arising from interference with neutral trade. jurisdiction of the said posts, shall continue War seemed imminent in 1794, when Washing- [0 enJoy, unmolested, all their property of ton nominated Chief Justice John Jay as envoy CV€ry kind, and shall be protected therein. extraordinary to conclude a treaty of peace and ‘They shall be at full liberty to remain there, commerce. The Jay Treaty solved some of the or to remove with all or any part of their most important matters of dispute between the effects; and it shall also be free to them to two nations, and averted war, but it contained gel] their lands, houses, or effects, or to recertain Teatures profoundly unsatisfactory to tain the property thereof, at their discretion; tated some time before sending it to the Senate such of them as shall continue to reside

the majority of Americans. Washington hesi- ; ;

for ratification. After a bitter contest in the within the said boundary lines, shall not be Senate, the Treaty was ratified June 24, 1795, compelled to become citizens of the United with a reservation which suspended the ob- States, or to take any oath of allegiance to noxious Article XII. For the debate on the Jay the government thereof; but they shall be Treaty, see H. Adams, Albert Gallatin; C. Bow- at full liberty so to do if they think proper, ers, Jefferson and Hamilton, chs. xi-xiil. A thor- and they shall make and declare their election

ough history of the Treaty is 5. F. Bemis, within one year after the evacuation afore-

Jay’s Treaty. The full text of the adjudications ‘d. And all ho shall tj th

provided for by Articles 5, 6, and 7, have been said. And alt persons who sna’ continue raere edited by J. B. Moore, International Adjudica- after the expiration of the said year, without tions, Vols. I-IV. The question of appropriations having declared their intention of remaining

for carrying out the provisions of the Treaty subjects of his Britannic Majesty, shall be raised a serious constitutional problem in the considered as having elected to become citlHouse. The appropriations were finally made, zens of the United States. but only after one of the greatest political de- Art. III. It is agreed that it shall at all bates in American history. For the speeches of times be free to his Majesty’s subjects, and Gallatin and Fisher Ames on appropriations for to the citizens of the United States. and

the Treaty, see A. Johnston, ed. American Ora- 1 he Indi dwell; th , d

tions, Vol. I, p. 84 ff. also to u e Indians dwelling on either side of the said boundary line, freely to pass and repass by land or inland navigation, into the

respective territories and countries of the Art. I. There shall be a firm, inviolable two parties, on the continent of America and universal peace, and a true and sincere (the country within the limits of the Hudfriendship between his Britannic Majesty, his son’s bay Company only excepted) and to

heirs and successors, and the United States navigate all the lakes, rivers and waters of America; and between their respective thereof, and freely to carry on trade and countries, territories, cities, towns and people commerce with each other. ... The river of every degree, without exception of per- Mississippi shall, however, according to the

sons or places. treaty of peace, be entirely open to both Art. II. His Majesty will withdraw all his parties; and it is further agreed, that all the troops and garrisons from all posts and _ ports and places on its eastern side, to whichplaces within the boundary lines assigned soever of the parties belonging, may freely by the treaty of peace to the United States. be resorted to and used by both parties, in This evacuation shall take place on or before as ample a manner as any of the Atlantic [June 1, 1796,] . . . : The United States in ports or places of the United States, or any

166 DOCUMENTS OF AMERICAN History of the ports or places of his Majesty in received by the said creditors in the ordinary

Great-Britain. . . . course of justice, the United States will make Art. IV. Whereas it is uncertain whether full and complete compensation for the same the river Mississippi extends so far to the to the said creditors: But it is distinctly unnorthward, as to be intersected by a line to derstood, that this provision is to extend to be drawn due west from the Lake of the such losses only as have been occasioned by Woods, in the manner mentioned in the _ the lawful impediments aforesaid, . . . treaty of peace .. . it is agreed, that meas- Art, VII. Whereas complaints have been ures shall be taken .. . for making a joint made by divers merchants and others, citisurvey of the said river from one degree of zens of the United States, that during the latitude below the falls of St. Anthony, to course of the war in which his Majesty is the principal source or sources of the said now engaged, they have sustained considerariver, and also of the parts adjacent thereto: ble losses and damage, by reason of irregular and that if on the result of such survey, it or illegal captures or condemnations of their should appear that the said river, would not vessels and other property, under colour of be intersected by such a line as is above authority or commissions from his Majesty, mentioned, the two parties will thereupon and that from various circumstances belongproceed by amicable negociation, to regulate ing to the said cases, adequate compensa-

the boundary line in that quarter, .. . tion for the losses and damages so sustained Art. V. Whereas doubts have arisen what cannot now be actually obtained, had and river was truly intended under the name of received by the ordinary course of judicial the river St. Croix, mentioned in the said proceedings; it is agreed, that in all such treaty of peace, and forming a part of the cases, where adequate compensation cannot, boundary therein described; that question for whatever reason, be now actually ob-

shall be referred to the final decision of tained, had and received by the said mercommissioners to be appointed. ... The chants and others, in the ordinary course of said commissioners shall, by a declaration, justice, full and complete compensation for under their hands and seals, decide what the same will be made by the British governriver is the river St. Croix, intended by the ment to the said complainants. But it is treaty. .. . And both parties agree to con-_ distinctly understood, that this provision is sider such decision as final and conclusive, not to extend to such losses or damages as so as that the same shall never thereafter have been occasioned by the manifest delay be called into question, or made the subject or negligence, or wilful omission of the

of dispute or difference between them. claimant... .

Art. VI. Whereas it is alleged by divers Art. X. Neither the debts due from inBritish merchants and others his Majesty’s dividuals of the one nation to individuals subjects, that debts, to a considerable of the other, nor shares, nor monies which amount, which were bona fide contracted they may have in the public funds, or in before the peace, still remain owing to them the public or private banks, shall ever in by citizens or inhabitants of the United any event of war or national differences be States, and that by the operation of various sequestered or confiscated. .. . lawful impediments since the peace, not only Art. XI. It is agreed between his Majesty the full recovery of the said debts has been and the United States of America, that there delayed, but also the value and security shall be a reciprocal and entirely perfect thereof have been, in several instances, im- liberty of navigation and commerce between paired and lessened, so that by the ordinary — their respective people, in the manner, under course of judicial proceedings, the British the limitations and on the condtions specified

creditors cannot now obtain, and actually in the following articles: have and receive full and adequate compensa- [Art. XII., relating to trade with the West tion for the losses and damages which they Indies, was suspended. |

have thereby sustained. It is agreed, that in Art. XIII. His Majesty consents that the all such cases, where full compensation for vessels belonging to the citizens of the United

such losses and damages cannot, for what- States of America, shall be admitted and ever reason, be actually obtained, had and hospitably received, in all the sea-ports and

THe Jay TREATY 167 harbours of the British territories in the Also to hire and possess houses and wareEast-Indies. And that the citizens of the said houses for the purposes of their commerce, United States, may freely carry on a trade and generally the merchants and traders on

between the said territories and the said each side, shall enjoy the most complete

United States, in all articles of which the protection and security for their commerce; importation or exportation respectively, to but subject always as to what respects this or from the said territories, shall not be en- article to the laws and statutes of the two tirely prohibited. ... The citizens of the countries respectively. United States shall pay for their vessels when Art. XV. It is agreed that no other or

admitted into the said ports no other or higher duties shall be paid by the ships or higher tonnage-duty than shall be payable merchandize of the one party in the ports of on British vessels when admitted into the the other, than such as are paid by the like ports of the United States. And they shall vessels or merchandize of all other nations.

pay no other or higher duties or charges, Nor shall any other or higher duty be imon the importation or exportation of the posed in one country on the importation of cargoes of the said vessels, than shall be any articles the growth, produce or manupayable on the same articles when imported facture of the other, than are or shall be or exported in British vessels. But it is ex- payable on the importation of the like articles pressly agreed, that the vessels of the United being of the growth, produce, or manufacStates shall not carry any of the articles ture of any other foreign country. Nor shall exported by them from the said British ter- any prohibition be imposed on the exportaritories, to any port or place, except to some _ tion or importation of any articles to or from port or place in America, where the same the territories of the two parties respectively, shall be unladen, and such regulations shall which shall not equally extend to all other be adopted by both parties, as shall from nations... .

time to time be found necessary to enforce The two parties agree to treat for the

the due and faithful observance of this stipu- more exact equalization of the duties on the lation. It is also understood that the permis- respective navigation of their subjects and

sion granted by this article, is not to extend people, in such manner as may be most to allow the vessels of the United States to beneficial to the two countries. .. . In the carry on any part of the coasting-trade of interval it is agreed, that the United States the said British territories; but vessels going will not impose any new or additional tonwith their original cargoes, or part thereof, mage duties on British vessels, nor increase from one port of discharge to another, are the now-subsisting difference between the not to be considered as carrying on the duties payable on the importation of any coasting-trade. Neither is this article to be articles in British or in American ves:

construed to allow the citizens of the said sels.... states to settle or reside within the said Art. XVII. It is agreed, that in all cases territories, or to go into the interior parts where vessels shall be captured or detained thereof, without the permission of the British on Just suspicion of having on board enemy’s

government established there... . property, or of carrying to the enemy any

Art. XIV. There shall be between all the of the articles which are contraband of war; dominions of his Majesty in Europe and the _ the said vessel shall be brought to the near-

territories of the United States, a reciprocal est or most convenient port; and if any and perfect liberty of commerce and naviga- property of an enemy should be found on tion. The people and inhabitants of the two board such vessel, that part only which becountries respectively, shall have liberty longs to the enemy shall be made prize, and freely and securely, and without hindrance _ the vessel shall be at liberty to proceed with and molestation, to come with their ships the remainder without any impediment... .

and cargoes to the lands, countries, cities, Art. IX. And that more abundant care ports, places and rivers, within the dominions may be taken for the security of the respecand territories aforesaid, to enter into the tive subjects and citizens of the contracting

same, to resort there, and to remain and parties, and to prevent their suffering inreside there, without any limitation of time. juries by the men of war, or privateers of

168 DOCUMENTS OF AMERICAN HIsTORY either party, all commanders of ships of war should take place, (which God forbid) beand privateers, and all others the said sub- tween his Majesty and the United States, jects and citizens, shall forbear doing any the merchants and others of each of the two damage to those of the other party, or com- nations, residing in the dominions of the mitting any outrage against them, and if other, shall have the privilege of remaining

they act to the contrary, they shall be and continuing their trade, so long as they punished, and shall also be bound in their behave peaceably, and commit no offence persons and estates to make satisfaction and against the laws; and in case their conduct reparation for all damages, and the interest should render them suspected, and the rethereof, of whatever nature the said damages spective governments should think proper to

may be... . order them to remove, the term of twelve ArT. XXII. It is expressly stipulated, that months from the publication of the order neither of the said contracting parties will shall be allowed them for that purpose, to

order or authorize any acts of reprisal against remove with their families, effects and propthe other, on complaints of injuries or dam- erty; but this favour shall not be extended

ages, until the said party shall first have to those who shall act contrary to the espresented to the other a statement thereof, tablished laws; ... verified by competent proof and evidence, Art. XXVIII. It is agreed, that the first and demanded justice and satisfaction, and _ ten articles of this treaty shall be permanent, the same shall either have been refused or and that the subsequent articles, except the

unreasonably delayed. twelfth, shall be limited in their duration Art. XXVI. If at any time a rupture’ to twelve years,... 99. THE PINCKNEY TREATY October 27, 1795 Treaty of Friendship, Boundaries, Commerce and Navigation Between the United States of America, and the King of Spain. (Malloy, ed. Treaties, Conventions, etc. Vol. II, p. 1640 ff.)

On the conclusion of the Revolutionary War sissippi Question, 1795-1803; P. C. Phillips, The Spain, refusing to recognize the right of Great West in the Diplomacy of the American RevoluBritain to give to the United States the right to tion.

navigate the Mississippi, closed that river to . Americans. Other matters of dispute between the ART. I. THERE shall be a firm and in-

United States and Spain concerned the bounda- Vi0lable peace and sincere friendship berics of West Florida and the activities of the tween His Catholic Majesty, his successors

Spanish authorities in fomenting discontent and subjects, and the United States, and among the Indians. Efforts of the United States their citizens, without exception of persons to conclude a satisfactory treaty with Spain were or places. unsuccessful in 1781 and again in 1785-6. In the ART. II. To prevent all disputes on the carly seventeen-nineties western discontent grew subject of the boundaries which separate

alarmingly and intrigues looking to separation wos or to an attack upon Spanish possessions at- the territories of the two high contracting

tracted wide attention. The conclusion of Jay’s Parties, it is hereby declared and agreed to Treaty inspired the Spanish Court with the fear aS follows, to wit. The southern boundary of that Great Britain and the United States might the United States, which divides their terricombine to attack Spanish possessions in the tory from the Spanish colonies of East and new world, and the Spanish minister, Godoy, West Florida, shall be designated by a line

promptly concluded with Thomas Pinckney a beginning in the River Missisippi, at the treaty whose provisions were highly satisfactory northernmost part of the thirty-first degree to Americans. The terms of the treaty, however, of latitude north of the equator, which from Pinckney’s Treaty see S. F. Bemis, Pinckney’s thence shall be drawn due east to the middle Treaty; A. P. Whitaker, The Spanish-American of the River Apalachicola, or Catahouche, Frontier, 1783-1795; A. P. Whitaker, The Mis- thence along the middle thereof to its junc-

were not carried out for almost three years. For

WASHINGTON’S FAREWELL ADDRESS 169 tion with the Flint: thence straight to the agreed that in future no treaty of alliance, head of St. Mary’s river, and thence down or other whatever (except treaties of peace, ) the middle thereof to the Atlantic ocean. ... shall be made by either party with the In-

ART. IV. It is likewise agreed that the dians living within the boundary of the western boundary of the United States which other, but both parties will endeavour to separates them from the Spanish colony of make the advantages of the Indian trade Louissiana, is in the middle of the channel common and mutually beneficial to their or bed of the River Missisippi, from the respective subjects and citizens, observing in northern boundary of the said states to the all things the most complete reciprocity. . . . completion of the thirty-first degree of lati- ART. XXII... . And in consequence of tude north of the equator. And His Catholic the stipulations contained in the IV. article, Majesty has likewise agreed that the naviga- His Catholic Majesty will permit the citizens

tion of the said river, in its whole breadth of the United States, for the space of three from its source to the ocean, shall be free years from this time, to deposit their meronly to his subjects and the citizens of the chandizes and effects in the port of NewUnited States, unless he should extend this Orleans, and to export them from thence privilege to the subject of other Powers by without paying any other duty than a fair

special convention. price for the hire of the stores, and His

ART. V. The two high contracting parties Majesty promises either to continue this pershall, by all the means in their power, main- mission, if he finds during that time that it tain peace and harmony among the several is not prejudicial to the interests of Spain, Indian nations who inhabit the country ad- or if he should not agree to continue it there, jacent to the lines and rivers, which, by the he will assign to them, on another part of preceding articles, form the boundaries of the banks of the Missisippi, an equivalent

the two Floridas. .. . establishment... . And whereas several treaties of friendshi

exist between the two contracting parties THOMAS PINCKNEY, and the said nations of Indians, it is hereby EL PRINCIPE DE LA PAZ, 100. WASHINGTON’S FAREWELL ADDRESS September 17, 1796 (Richardson, ed. Messages and Papers, Vol. I, p. 213 ff.) This memorable address was Washington’s suggestions, and Hamilton and John Jay polished valedictory to the American people; its advice up this draft. This second draft, however, did and injunctions have influenced American history not please Washington as much as Hamilton’s far more than Washington himself could have first draft, and he asked Hamilton to polish up anticipated. The immediate occasion for Wash- _ the first draft for him. This draft was returned ington’s Address was the necessity of eliminating to Washington, who made some slight alterahimself from the contest for the Presidency. tions and omissions, and sent it to a printer, Washington had seriously considered retiring Claypoole, who published it in the “American from that office at the end of his first term, and Daily Advertiser,” September 17. Washington’s, on May 20, 1792, he had written Madison a letter Madison’s and Hamilton’s drafts of the Address

containing many of the points later developed are given in W. C. Ford, ed. The Writings of in the Farewell Address. There has been con- George Washington, Vol. XIII. Sec, H. Binney, siderable controversy over the question of the An Inquiry into the Formation of Washington’s authorship of the Address, and Hamilton’s ad- Farewell Address; J. C. Fitzpatrick, George mirers claim that he was principally responsi- Washington Himself, ch. Ixxii. ble for it. In July 1796 Washington sent his earlier draft of a farewell address, together with Madison’s answer, to Hamilton with a . UNITED STATES, se ptember 17, 1796. request for suggestions and literary alterations. Friends and Fellow-Citizens : Hamilton proceeded to write an address, based The period for a new election of a citizen almost entirely upon Washington’s draft; Wash- tO administer the Executive Government of

ington returned it to Hamilton with further the United States being not far distant, and

170 DOCUMENTS OF AMERICAN HiIsToRY the time actually arrived when your thoughts different causes and from different quarters

must be employed in designating the per- much pains will be taken, many artifices son who is to be clothed with that important employed, to weaken in your minds the con-

trust, it appears to me proper, especially as viction of this truth, as this is the point in it may conduce to a more distinct expression your political fortress against which the bat-

of the public voice, that I should now ap- teries of internal and external enemies will prise you of the resolution I have formed to be most constantly and actively (though decline being considered among the number often covertly and insidiously) directed, it of those out of whom a choice is to be is of infinite moment that you should prop-

made. ... erly estimate the immense value of your na-

The impressions with which I first under- tional union to your collective and individual took the arduous trust were explained on happiness; that you should cherish a cordial, the proper occasion. In the discharge of this habitual, and immovable attachment to it; trust I will only say that I have, with good accustoming yourselves to think and speak intentions, contributed toward the organiza- of it as of the palladium of your political tion and administration of the Government safety and prosperity; watching for its presthe best exertions of which a very fallible ervation with jealous anxiety; discountenancjudgment was capable. Not unconscious in ing whatever may suggest even a suspicion the outset of the inferiority of my qualifica- that it can in any event be abandoned, and tions, experience in my own eyes, perhaps indignantly frowning upon the first dawning still more in the eyes of others, has strength- of every attempt to alienate any portion of ened the motives to diffidence of myself; and our country from the rest or to enfeeble the every day the increasing weight of years ad- sacred ties which now link together the varimonishes me more and more that the shade ous parts.

of retirement is as necessary to me as it For this you have every inducement of will be welcome. Satisfied that if any cir- sympathy and interest. Citizens by birth or cumstances have given peculiar value to my choice of a common country, that country services they were temporary, I have the has a right to concentrate your affections. consolation to believe that, while choice and The name of American, which belongs to prudence invite me to quit the political scene, you in your national capacity, must always

patriotism does not forbid it... . exalt the just pride of patriotism more than

Here, perhaps, I ought to stop. But a any appellation derived from local discrimsolicitude for your welfare which can not inations. With slight shades of difference, end with my life, and the apprehension of you have the same religion, manners, habits, danger natural to that solicitude, urge me and political principles. You have in a comon an occasion like the present to offer to mon cause fought and triumphed together. your solemn contemplation and to recom- The independence and liberty you possess mend to your frequent review some senti- are the work of joint councils and joint efments which are the result of much reflec- forts, of common dangers, sufferings, and tion, of no inconsiderable observation, and — successes.

which appear to me all important to the But these considerations, however powerpermanency of your felicity as a people. ... fully they address themselves to your sensiInterwoven as is the love of liberty with _ bility, are greatly outweighed by those which

every ligament of your hearts, no recom- apply more immediately to your interest. mendation of mine is necessary to fortify Here every portion of our country finds the

or confirm the attachment. most commanding motives for carefully

The unity of government which constitutes guarding and preserving the union of the you one people is also now dear to you. It whole. is justly so, for it is a main pillar in the The North, in an unrestrained intercourse edifice of your real independence, the sup- with the South, protected by the equal laws port of your tranquillity at home, your peace of a common government, finds in the pro-

abroad, of your safety, of your prosperity, ductions of the latter great additional

of that very liberty which you so highly — resources of maritime and commercial enterprize. But as it is easy to foresee that from prise and precious materials of manufactur-

WASIINGTON’S FAREWELL ADDRESS 171 ing industry. The South, in the same inter- as a main prop of your liberty, and that the course, benefiting by the same agency of the love of the one ought to endear to you the North, sees its agriculture grow and its com- preservation of the other. .. . merce expand. Turning partly into its own Is there a doubt whether a common govchannels the seamen of the North, it finds its ernment can embrace so large a sphere? Let particular navigation invigorated; and while experience solve it. To listen to mere speculait contributes in different ways to nourish tion in such a case were criminal. It is well and increase the general mass of the national worth a fair and full experiment. With navigation, it looks forward to the protec- such powerful and obvious motives to union tion of a maritime strength to which itself affecting all parts of our country, while exis unequally adapted. The East, in a like perience shall not have demonstrated its imintercourse with the West, already finds, and practicability, there will always be reason in the progressive improvement of interior to distrust the patriotism of those who in communications by land and water will more any quarter may endeavor to weaken its and more find, a valuable vent for the com- _ bands.

modities which it brings from abroad or In contemplating the causes which raay manufactures at home. The West derives disturb our union it occurs as matter of from the ast supplies requisite to its growth serious concern that any ground should have

and comfort, and what is perhaps of still been furnished for characterizing parties by greater consequence, it must of necessity owe geographical discriminations—Northern and

the secure enjoyment of indispensable out- Southern, Atlantic and Western—whence lets for its own productions to the weight, designing men may endeavor to excite a beinfluence, and the future maritime strength lief that there is a real difference of local inof the Atlantic side of the Union, directed terests and views. One of the expedients of by an indissoluble community of interest as party to acquire influence within particular one nation. Any other tenure by which the districts is to misrepresent the opinions and West can hold this essential advantage, aims of other districts. You can not shield whether derived from its own separate yourselves too much against the jealousies strength or from an apostate and unnatural and heartburnings which spring from these connection with any foreign power, must be miusrepresentations; they tend to render alien

intrinsically precarious. to each other those who ought to be bound

While, then, every part of our country together by fraternal affection... . thus feels an immediate and particular in- To the efficacy and permanency of your terest in union, all the parts combined can union a government for the whole is indisnot fail to find in the united mass of means pensable. No alliances, however strict, beand efforts greater strength, greater resource, tween the parts can be an adequate subproportionably greater security from external stitute. They must inevitably experience the danger, a less frequent interruption of their infractions and interruptions which all allipeace by foreign nations, and what is of ances in all times have experienced. Sensible inestimable value, they must derive from of this momentous truth, you have improved

union an exemption from those broils and upon your first essay by the adoption of a wars between themselves which so frequently Constitution of Government better calculated afflict neighboring countries not tied together than your former for an intimate union and by the same governments, which their own for the efficacious management of your com-

rivalships alone would be sufficient to pro- mon concerns. This Government, the offduce, but which opposite foreign alliances, spring of our own choice, uninfluenced and attachments, and intrigues would stimulate unawed, adopted upon full investigation and and imbitter. Hence, likewise, they will avoid mature deliberation, completely free in its the necessity of those overgrown military principles, in the distribution of its powers, establishments which, under any form of uniting security with energy, and containing government, are inauspicious to liberty, and within itself a provision for its own amend-

which are to be regarded as particularly ment, has a just claim to your confidence hostile to republican liberty. In this sense and your support. Respect for its authority,

it is that your union ought to be considered compliance with its laws, acquiescence in its

172 DOCUMENTS OF AMERICAN HisToRyY measures, are duties enjoined by the funda- most solemn manner against the baneful efmental maxims of true liberty. The basis of _ fects of the spirit of party generally. our political systems is the right of the people This spirit, unfortunately, is inseparable

to make and to alter their constitutions of from our nature, having its root in the government. But the constitution which at strongest passions of the human mind. It any time exists till changed by an explicit exists under different shapes in all governand authentic act of the whole people is ments, more or less stifled, controlled, or sacredly obligatory upon all. The very idea repressed; but in those of the popular form

of the power and the right of the people it is seen in its greatest rankness and is

to establish government presupposes the duty truly their worst enemy. ...

of every individual to obey the established It serves always to distract the public

government. ... councils and enfeeble the public administra-

Toward the preservation of your Govern- tion. It agitates the community with illment and the permanency of your present founded jealousies and false alarms; kindles

happy state, it is requisite not only that the animosity of one part against another;

you steadily discountenance irregular opposi- foments occasionally riot and insurrection. tions to its acknowledged authority, but also It opens the door to foreign influence and that you resist with care the spirit of in- corruption, which find a facilitated access to novation upon its principles, however spe- the government itself through the channels cious the pretexts. One method of assault may of party passion. Thus the policy and the

be to effect in the forms of the Constitu- will of one country are subjected to the tion alterations which will impair the energy policy and will of another.

of the system, and thus to undermine what There is an opinion that parties in free can not oe directly overthrown. In all the countries are useful checks upon the adchanges to which you may be invited re- ministration of the government, and serve to member that time and habit are at least as keep alive the spirit of liberty. This within necessary to fix the true character of govern- certain limits is probably true; and in governments as of other human institutions; that ments of a monarchical cast patriotism may experience is the surest standard by which to look with indulgence, if not with favor, upon

test the real tendency of the existing con- the spirit of party. But in those of the stitution of a country; that facility in popular character, in governments purely changes upon the credit of mere hypothesis elective, it is a spirit not to be encouraged.

and opinion exposes to perpetual change, From their natural tendency it is certain from the endless variety of hypothesis and there will always be enough of that spirit opinion; and remember especially that for for every salutary purpose; and there being the efficient management of your common _ constant danger of excess, the effort ought interests in a country so extensive as ours a__ to be by force of public opinion to mitigate government of as much vigor as is consistent and assuage it. A fire not to be quenched, it

with the perfect security of liberty is in- demands a uniform vigilance to prevent its dispensable. Liberty itself will find in such bursting into a flame, lest, instead of warma government, with powers properly distrib- ing, it should consume.

uted and adjusted, its surest guardian. It It is important, likewise, that the habits is, indeed, little else than a name where the of thinking in a free country should inspire government is too feeble to withstand the caution in those intrusted with its administraenterprises of faction, to confine each mem- tion to confine themselves within their reber of the society within the limits prescribed spective constitutional spheres, avoiding in by the laws, and to maintain all in the secure _ the exercise of the powers of one department

and tranquil enjoyment of the rights of per- to encroach upon another. The spirit of en-

son and property. croachment tends to consolidate the powers

I have already intimated to you the danger of all the departments in one, and thus to of parties in the State, with particular refer- create, whatever the form of government, a ence to the founding of them on geographical real despotism. . . . If in the opinion of the discriminations. Let me now take a more people the distribution or modification of the comprehensive view, and warn you in the constitutional powers be in any particular

WASHINGTON’S FAREWELL ADDRESS 173 wrong, let it be corrected by an amendment likewise the accumulation of debt, not only in the way which the Constitution designates. by shunning occasions of expense, but by But let there be no change by usurpation; for vigorous exertions in time of peace to disthough this in one instance may be the in- charge the debts which unavoidable wars strument of good, it is the customary weapon have occasioned, not ungenerously throwby which free governments are destroyed. ing upon posterity the burthen which we

The precedent must always greatly over- ourselves ought to bear... . balance in permanent evil any partial or Observe good faith and justice toward all transient benefit which the use can at any nations. Cultivate peace and harmony with

time yield. all. Religion and morality enjoin this con-

Of all the dispositions and habits which duct. And can it be that good policy does lead to political prosperity, religion and not equally enjoin it? It will be worthy of

morality are indispensable supports. In vain a free, enlightened, and at no distant period

would that man claim the tribute of patriot- a great nation to give to mankind the

ism who should labor to subvert these great magnanimous and too novel example of a pillars of human happiness—these firmest people always guided by an exalted justice props of the duties of men and citizens. The and benevolence. Who can doubt that in mere politician, equally with the pious man, the course of time and things the fruits of ought to respect and to cherish them. A_ such a plan would richly repay any tempovolume could not trace all their connections rary advantages which might be lost by a with private and public felicity. Let it simply steady adherence to it? Can it be that be asked, Where is the security for property, Providence has not connected the permanent

for reputation, for life, if the sense of re- felicity of a nation with its virtue? The ligious obligation desert the oaths which are experiment, at least, is recommended by the instruments of investigation in courts of | every sentiment which ennobles human najustice? And let us with caution indulge the ture. Alas! is it rendered impossible by its supposition that morality can be maintained vices? without religion. Whatever may be conceded In the execution of such a plan nothing to the influence of refined education on minds is more essential than that permanent, i1nof peculiar structure, reason and experience veterate antipathies against particular nations both forbid us to expect that national moral- and passionate attachments for others should ity can prevail in exclusion of religious prin- be excluded, and that in place of them just

ciple. and amicable feelings toward all should be

It is substantially true that virtue or cultivated. The nation which indulges toward morality is a necessary spring of popular another an habitual hatred or an habitual government. The rule indeed extends with fondness is in some degree a slave. It is a more or less force to every species of free slave to its animosity or to its affection, government. Who that is a sincere friend to either of which is sufficient to lead it astray it can look with indifference upon attempts from its duty and its interest. Antipathy in to shake the foundation of the fabric? Pro- one nation against another disposes each

mote, then, as an object of primary im- more readily to offer insult and injury, to portance, institutions for the general dif- lay hold of slight causes of umbrage, and fusion of knowledge. In proportion as the _ to be haughty and intractable when accidental

structure of a government gives force to or trifling occasions of dispute occur

public opinion, it is essential that public So, likewise, a passionate attachment of

opinion should be enlightened. one nation for another produces a variety As a very important source of strength of evils. Sympathy for the favorite nation, and security, cherish public credit. One facilitating the illusion of an imaginary commethod of preserving it is to use it as spar- mon interest in cases where no real common

ingly as possible, avoiding occasions of interest exists, and infusing into one the expense by cultivating peace, but remember- enmities of the other, betrays the former ing also that timely disbursements to pre- into a participation in the quarrels and wars pare for danger frequently prevent much of the latter without adequate inducement greater disbursements to repel it; avoiding or justification. It leads also to concessions

174 DOCUMENTS OF AMERICAN HISTORY to the favorite nation of privileges denied ordinary combinations and collisions of her to others, which is apt doubly to injure the friendships or enmities. nation making the concessions by unneces- Our detached and distant situation invites sarily parting with what ought to have been and enables us to pursue a different course. retained, and by exciting jealousy, ill will, If we remain one people, under an efficient and a disposition to retaliate in the parties government, the period is not far off when from whom equal privileges are withheld; we may defy material injury from external and it gives to ambitious, corrupted, or annoyance; when we may take such an atdeluded citizens (\,ho devote themselves to titude as will cause the neutrality we may at

the favorite nation) facility to betray or any time resolve upon to be scrupulously sacrifice the interests of their own country respected; when belligerent nations, under without odium, sometimes even with popular- the impossibility of making acquisitions upon

ity, gilding with the appearances of a virtu- us, will not lightly hazard the giving us ous sense of obligation, a commendable defer- provocation; when we may choose peace or ence for public opinion, or a laudable zeal war, as our interest, guided by justice, shall

for public good the base or foolish com- counsel. pliances of ambition, corruption, or infatua- Why forego the advantages of so peculiar

tion... . a situation? Why quit our own to stand upon

Against the insidious wiles of foreign in- foreign ground? Why, by interweaving our fluence (I conjure you to believe me, fellow- destiny with that of any part of Europe, encitizens) the jealousy of a free people ought tangle our peace and prosperity in the toils

to be constantly awake, since history and of European ambition, rivalship, interest, experience prove that foreign influence is one humor, or caprice?

of the most baneful foes of republican gov- It is our true policy to steer clear of perernment. But that jealousy, to be useful, manent alliances with any portion of the formust be impartial, else it becomes the in- eign world, so far, I mean, as we are now at strument of the very influence to be avoided, liberty to do it; for let me not be understood

instead of a defense against it. Excessive as capable of patronizing infidelity to existpartiality for one foreign nation and exces- ing engagements. I hold the maxim no less sive dislike of another cause those whom they applicable to public than to private affairs actuate to see danger only on one side, and that honesty is always the best policy. I reserve to veil and even second the arts of peat, therefore, let those engagements be obinfluence on the other. Real patriots who served in their genuine sense. But in my may resist the intrigues of the favorite are opinion it is unnecessary and would be unwise liable to become suspected and odious, while to extend them.

its tools and dupes usurp the applause and Taking care always to keep ourselves by confidence of the people to surrender their suitable establishments on a respectable de-

interests. fensive posture, we may safely trust to temThe great rule of conduct for us in regard porary alliances for extraordinary emergento foreign nations is, in extending our com-_ cies. mercial relations to have with them as little Harmony, liberal intercourse with all napolitical connection as possible. So far as we tions are recommended by policy, humanity, have already formed engagements let them and interest. But even our commercial policy

be fulfilled with perfect good faith. Here should hold an equal and impartial hand,

let us stop. neither seeking nor granting exclusive favors Europe has a set of primary interests which or preferences; consulting the natural course to us have none or a very remote relation. of things; diffusing and diversifying by genHence she must be engaged in frequent tle means the streams of commerce, but forccontroversies, the causes of which are es- ing nothing; establishing with powers so dissentially foreign to our concerns. Hence, posed, in order to give trade a stable course, therefore, it must be unwise in us to im-_ to define the rights of our merchants, and to plicate ourselves by artificial ties in the enable the Government to support them, conordinary vicissitudes of her politics or the ventional rules of intercourse, the best that

THE ALIEN AND SEDITION ACTS 175 present circumstances and mutual opinion Almighty to avert or mitigate the evils to will permit, but temporary and liable to be which they may tend. I shall also carry with from time to time abandoned or varied as_ me the hope that my country will never cease experience and circumstances shall dictate; to view them with indulgence, and that, after constantly keeping in view that it is folly in forty-five years of my life dedicated to its one nation to look for disinterested favors service with an upright zeal, the faults of infrom another; that it must pay with a por- competent abilities will be consigned to obtion of its independence for whatever it may livion, as myself must soon be to the manaccept under that character; that by such _ sions of rest. acceptance it may place itself in the condition Relying on its kindness in this as in other

of having given equivalents for nominal fa- things, and actuated by that fervent love vors, and yet of being reproached with ingrat- toward it which is so natural to a man who itude for not giving more. There can be no views in it the native soil of himself and his greater error than to expect or calculate upon progenitors for several generations, I anticireal favors from nation to nation. It is an pate with pleasing expectation that retreat in illusion which experience must cure, which a which I promise myself to realize without

just pride ought to discard... . alloy the sweet enjoyment of partaking in

Though in reviewing the incidents of my the midst of my fellow-citizens the benign Administration I am unconscious of inten- influence of good laws under a free governtional error, I am nevertheless too sensible of |. ment—the ever-favorite object of my heart,

my defects not to think it probable that I and the happy reward, as I trust, of our may have committed many errors. What- mutual cares, labors, and dangers.

ever they may be, I fervently beseech the G°. WASHINGTON. 101. THE ALIEN AND SEDITION ACTS 1798

The publication, in the spring of 1798, of the

x vz correspondence vnised. among the Fed- 1, THE NATURALIZATION ACT

eralists a spirit of nationalism that found expres- June 18, 1798

sion in the four acts known collectively as the (U.S. Statutes at Large, Vol. J, p. 566 ff.)

Alien and dnected particularly against ° ous An Act supplementary to and to amend the

of anti-Federalist editors and pamphleteers of act, mtituled “An act to establish an French and English extraction, such as Thomas uniform rule of naturalization,” and to Cooper, Joseph Priestley, James Callender, Ben- repeal the act heretofore passed on that jamin F. Bache, Count de Volney, V. du Pont subject.

and others. There was grave doubt as to the SECTION 1. Be it enacted... , That no constitutionality of the Sedition Act, which ex- alien shall be admitted to become a citizen tended the Jureanction of the tederal arial oe of the United States, or of any state, unless question of valaity never came before the = = he shall have declared his intention to that the federal courts do not have common become a citizen of the United States, five

courts, though in 1812 the supreme court ruled we ; .

law jurisdiction in criminal cases. Though the Y€@"S, at least, before his admission, and shall,

Alien Acts were never enforced, a number of t the time of his application to be admitted, French refugees fled the country or went into declare and prove, to the satisfaction of the hiding. Some twenty-five persons were arrested court having jurisdiction in the case, that he under the Sedition Act, and ten convicted. See, has resided within the United States fourteen F. M. Anderson, “The Enforcement of the Alien years, at least, and within the state or terriand Sedition Laws,” American Hist. Assoc. Re- tory where, or for which such court is at the ports, 1912; C. G. Bowers, Jefferson and Ham- ti held. le ilton, ch. xvi-xvii; J. S. Bassett, The Federalist IME eld, mve years, at east, besides conSystem, ch. xvii; J. F. Mc Laughlin, Matthew {0xming to the other declarations, renunciaLyon; D. Malone, Thomas Cooper; B. Fay, The tions and proofs, by the said act required,

Two Franklins. any thing therein to the contrary hereof not-

176 DOCUMENTS OF AMERICAN HISTORY withstanding: Provided, that any alien, who fore him, there to give surety of the peace was residing within the limits, and under the and good behaviour during his residence jurisdiction of the United States, before ... within the United States, or for such term [January 29, 1795,] ...may, within one as the justice or other magistrate shall deem year after the passing of this act—and any reasonable, and until a report and registry of alien who shall have made the declaration of such alien shall be made, and a certificate his intention to become a citizen of the thereof, received as aforesaid: and in failure United States, in conformity to the provisions of such surcty, such alien shall and may be of the act [of Jan. 29, 1795], may, within committed to the common gaol, and shall be four years after having made the declaration there held, until the order which the justice aforesaid, be admitted to become a citizen, or magistrate shall and may reasonably make, in the manner prescribed by the said act, in the premises, shall be performed. .. . ... And provided also, that no alien, who

shall be a native, citizen, denizen or subject 2. Tue ALIEN Act of any nation or state with whom the United June 25, 1798

States shall be at war, at the time of his (U.S. Statutes at Large, Vol. I, p. 570 ff.) application, shall be then admitted to become An Act concerning Aliens.

a citizen of the United States... . Sec. 1. Be it enacted ..., That it shall

SEC. 4. And be it further enacted, That all be lawful for the President of the United white persons, aliens, ... who, after the States at any time during the continuance of passing of this act, shall continue to reside, this act, to order all such aliens as he shall or who shall arrive, or come to reside in any judge dangerous to the peace and safety of

port or place within the territory of the the United States, or shall have reasonable United States, shall be reported, ... to the grounds to suspect are concerned in any clerk of the district court of the district, if treasonable or secret machinations against living within ten miles of the port or place, the government thereof, to depart out of the in which their residence or arrival shall be, territory of the United States, within such and otherwise, to the collector of such port time as shall be expressed in such order, or place, or some officer or other person there, which order shall be served on such alien by or nearest thereto, who shall be authorized delivering him a copy thereof, or leaving the by the President of the United States, to same at his usual abode, and returned to the register aliens: And report, as aforesaid, shall office of the Secretary of State, by the marbe made in all cases of residence, within six shal or other person to whom the same shall months from and after the passing of this be directed. And in case any alien, so ordered act, and in all after cases, within forty-eight to depart, shall be found at large within the hours after the first arrival or coming into United States after the time limited in such the territory of the United States, and shall order for his departure, and not having obascertain the sex, place of birth, age, nation, tained a license from the President to reside place of allegiance or citizenship, condition or therein, or having obtained such license shall occupation, and place of actual or intended not have conformed thereto, every such alien residence within the United States, of the shall, on conviction thereof, be imprisoned

alien or aliens reported, and by whom the for a term not exceeding three years, and

report is made... . shall never after be admitted to become a Sec. 5. And be it further enacted, That citizen of the United States. Provided always, every alien who shall continue to reside, or and be it further enacted, that if any alien who shall arrive, as aforesaid, of whom a__ so ordered to depart shall prove to the satisreport is required as aforesaid, who shall re- faction of the President, by evidence to be fuse or neglect to make such report, and to taken before such person or persons as the receive a certificate thereof, shall forfeit and President shall direct, who are for that purpay the sum of two dollars; and any justice pose hereby authorized to administer oaths, of the peace, or other civil magistrate, who that no injury or danger to the United States has authority to require surety of the peace, will arise from suffering such alien to reside shall and may, on complaint to him made therein, the President may grant a license to thereof, cause such alien to be brought be- such alien to remain within the United States

Tue ALIEN AND SEDITION ACTS 177 for such time as he shall judge proper, and at strained, secured and removed, as alien enesuch place as he may designate. And the mies. And the President of the United States

President may also require of such alien to shall be, and he is hereby authorized, . . . enter into a bond to the United States, in to direct the conduct to be observed, on the such penal sum as he may direct, with one or part of the United States, towards the aliens more sufficient sureties to the satisfaction of _ who shall become liable, as aforesaid; the the person authorized by the President to manner and degree of the restraint to which take the same, conditioned for the good be- they shall be subject, and in what cases, and havior of such alien during his residence in upon what security their residence shall be the United States, and not violating his li- permitted, and to provide for the removal of

cense, which license the President may re- those, who, not being permitted to reside

voke, whenever he shall think proper. within the United States, shall refuse or Sec. 2. And be it further enacted, That it neglect to depart therefrom; and to establish

shall be lawful for the President of the any other regulations which shall be found United States, whenever he may deem it nec- necessary in the premises and for the public

essary for the public safety, to order to be safety: ...

removed out of the territory thereof, any 4. Tue Sepirion Act alien who may or shall be in prison in pur- July 14, 1798

suance of this act; and to cause to be ar- yas

rested and sent out of the United States such (U. S. Statutes at Large, Vol. I, p. 596-7) of those aliens as shall have been ordered to Am Act in addition to the act, entttled “An depart therefrom and shall not have obtained act for the punishment of certain crimes

a license as aforesaid, in all cases where, in against the United States.” the opinion of the President, the public safety Sec. 1. Be it enacted ..., That if any requires a speedy removal. And if any alien persons shall unlawfully combine or conspire so removed or sent out of the United States together, with intent to oppose any measure

by the President shall voluntarily return or measures of the government of the United thereto, unless by permission of the President States, which are or shall be directed by of the United States, such alien on conviction proper authority, or to impede the operation thereof, shall be imprisoned so long as, in the of any law of the United States, or to inopinion of the President, the public safety timidate or prevent any person holding a

may require... . place or office in or under the government of Sec. 6. And be it further enacted, That this the United States, from undertaking, peract shall continue and be in force for and forming or executing his trust or duty; and if during the term of two years from the passing amy person or persons, with intent as afore-

thereof. said, shall counsel, advise or attempt to pro3 Tue Aten Enemies Act cure any insurrection, riot, unlawful assem-

July 6, 1798 re or combination; such orconspiracy, reatening,whether counsel, advice, attempt sha

(U. S. Statutes at Large, Vol. I, p. 577 ff.) have the proposed effect or not, he or they

An Act respecting Alien Enemies. shall be deemed guilty of a high misdeSECTION 1. Be it enacted ..., That meanor, and on conviction, before any court whenever there shall be a declared war be- of the United States having jurisdiction tween the United States and any foreign na- thereof, shall be punished by a fine not extion or government, or any invasion or ceeding five thousand dollars, and by impris-

predatory incursion shall be perpetrated, at- onment during a term not less than six tempted, or threatened against the territory months nor exceeding five years; and further, of the United States, by any foreign nation at the discretion of the court may be holden

or government, ... all natives, citizens, to find sureties for his good behaviour in denizens, or subjects of the hostile nation or such sum, and for such time, as the said court government, being males of the age of four- may direct.

teen years and upwards, who shall be within Sec. 2. That if any person shall write the United States, and not actually natural- print, utter, or publish, or shall cause or ized, shaJl be liable to be apprehended, re- procure to be written, printed, uttered or

178 DOCUMENTS oF AMERICAN HIsTORY published. or shall knowingly and willingly aid, encourage or abet any hostile designs of assist Or aid in writing, printing, uttering or any foreign nation against the United States, publishing any false, scandalous and mali- their people or government, then such person, clous writing or writings against the govern- being thereof convicted before any court of ment of the United States, or either house of | the United States having jurisdiction thereof, the Congress of the United States, or the shall be punished by a fine not exceeding two President of the United States, with intent to thousand dollars, and by imprisonment not defame the said government, or either house exceeding two years. of the said Congress, or the said President, Sec. 3. That if any person shall be proseor to bring them, or either of them, into con- cuted under this act, for the writing or pubtempt or disrepute; or to excite against them, lishing any libel aforesaid, it shall be lawful or either or any of them, the hatred of the for the defendant, upon the trial of the cause, good people of the United States, or to stir to give in evidence in his defence, the truth up sedition within the United States, or to of the matter contained in the publication excite any unlawful combinations therein, for charged as a libel. And the jury who shall try opposing or resisting any law of the United the cause, shall have a right to determine the

States, or any act of the President of the law and the fact, under the direction of the United States, done in pursuance of any such court, as in other cases.

law, or of the powers in him vested by the sec. 4. That this act shall continue to be constitution of the United States, or to resist, in force until March 3, 1801, and no oppose, or defeat any such law or act, or to longer... .

102. THE KENTUCKY AND VIRGINIA RESOLUTIONS OF 1798 The Kentucky and Virginia Resolutions of 1798

were evoked by the Alien and Sedition Acts. The l. ent ce ESOL TIONS

Kentucky Resolutions were drafted by Jefferson,

and sponsored in the Kentucky legislature by (N.S. Shaler, Kentucky, p. 409 ff.) John Breckenridge. The Virginia Resolutions ‘I. Resolved, that the several States comwere drafted by Madison, and introduced by ocing the United States of America, are not

John Taylor of Caroline. These resolutions repre- : 2 a .

sented not so much a constitutional] as a social united on the principle of unlimited submisphilosophy: they were drawn up with the primary 5100 to their general government; but that purpose not of presenting a constitutional theory by compact under the style and title of a but of presenting a democratic protest against Constitution for the United States and of what was considered a dangerous usurpation amendments thereto, they constituted a genof power by the central government. The per- eral government for special purposes, deleplexing question of the proper authority to pass gated to that government certain definite

on problems of constitutionality had not yet powers, reserving each State to itself, been resolved in favor of the Courts, and it was the residuary mass of right to their own selfnot unreasonable for those who feared the centralizing tendencies of the federal government to government; and that whensoever the general

assert that the States were the proper parties 80Vernment assumes undelegated powers, its to decide this question. The resolutions of 1798 acts are unauthoritative, void, and of no drew forth replies from several states; see Doc. force: That to this compact each State acNo. 104. On the resolutions, see E. D. Warfield, ceded as a State, and is an integral party, its The Kentucky Resolutions of 1798; N.S. Shaler, co-States forming, as to itself, the other Kentucky, ch. x; C. W. Loring, Nullification, party: That the government created by this Secession; H. Von Holst, Constitutional and compact was not made the exclusive or final Political History of the United States, Vol. I; . dee of th tent of th delegated G. Hunt, James Madison; E. P. Powell, Nullif- Judge of the extent OF the powers ceregate to cation and Secession in the United States; A. C. itself; since that would have made its discreMcLaughlin, Courts, Constitution and Parties, tion, and not the Constitution, the measure of

ch. iv. its powers; but that as in all other cases of

KENTUCKY AND VIRGINIA RESOLUTIONS OF 1798 179 compact among parties having no common selves the right of protecting the same, as this Judge, each party has an equal right to judge State, by a law passed on the general demand

for itself, as well of infractions as of the of its citizens, had already protected them

mode and measure of redress. from all human restraint or interference: And II. Resolved, that the Constitution of the that in addition to this general principle and

United States having delegated to Congress a express declaration, another and more special power to punish treason, counterfeiting the provision has been made by one of the amend-

securities and current coin of the United ments to the Constitution which expressly deStates, piracies and felonies committed on clares, that “Congress shall make no law rethe high seas, and offenses against the laws specting an establishment of religion, or

of nations, and no other crimes whatever, prohibiting the free exercise thereof, or and it being true as a general principle, and abridging the freedom of speech, or of the one of the amendments to the Constitution press,” thereby guarding in the same sentence, having also declared “that the powers not and under the same words, the freedom of delegated to the United States by the Con- religion, of speech, and of the press, insostitution, nor prohibited by it to the States, much, that whatever violates either, throws are reserved to the States respectively, or to down the sanctuary which covers the others, the people,” therefore also [the Sedition Act and that libels, falsehoods, defamation equally

of July 14, 1798]; as also the act passed by with heresy and false religion, are withheld them on the 27th day of June, 1798, entitled from the cognizance of F ederal tribunals. “An act to punish frauds committed on the That therefore [the Sedition Act], which does Bank of the United States” (and all other abridge the freedom of the press, is not law, their acts which assume to create, define, or but is altogether void and of no effect. punish crimes other than those enumerated IV. Resolved, that alien friends are under in the Constitution), are altogether void and _ the jurisdiction and protection of the laws of of no force, and that the power to create, the State wherein they are; that no power define, and punish such other crimes is re- over them has been delegated to the United served, and of right appertains solely and States, nor prohibited to the individual States exclusively to the respective States, each distinct from their power over citizens; and

within its own Territory. it being true as a general principle, and one III. Resolved, that it is true as a general of the amendments to the Constitution having principle, and is also expressly declared by also declared that “the powers not delegated one of the amendments to the Constitution to the United States by the Constitution, nor that “the powers not delegated to the United _ prohibited by it to the States, are reserved to States by the Constitution, nor prohibited by — the States respectively, or to the people,” the

it to the States, are reserved to the States [Alien Act of June 22, 1798], which assumes respectively or to the people;” and that no power over alien friends not delegated by the power over the freedom of religion, freedom Constitution, 1s not law, but is altogether of speech, or freedom of the press being dele- _ void and of no force.

gated to the United States by the Constitu- V. Resolved, that in addition to the gention, nor prohibited by it to the States, all eral principle as well as the express declaralawful powers respecting the same did of tion, that powers not delegated are reserved, right remain, and were reserved to the States, another and more special provision inserted

or to the people: That thus was manifested in the Constitution from abundant caution their determination to retain to themselves has declared, “‘that the migration or importathe right of judging how far the licentiousness tion of such persons as any of the States now of speech and of the press may be abridged existing shall think proper to admit, shall not without lessening their useful freedom, and be prohibited by the Congress prior to the how far those abuses which cannot be sepa- year 1808.” That this Commonwealth does rated from their use should be tolerated admit the migration of alien friends described

rather than the use be destroyed; and thus as the subject of the said act concerning also they guarded against all abridgment by aliens; that a provision against prohibiting the United States of the freedom of religious their migration is a provision against all acts opinions and exercises, and retained to them- equivalent thereto, or it would be nugatory;

180 DOCUMENTS OF AMERICAN HIsToRY that to remove them when migrated is equiva- defense, and general welfare of the United lent to a prohibition of their migration, and States, and to make all laws which shall be is therefore contrary to the said provision of | necessary and proper for carrying into execu-

the Constitution, and void. tion the powers vested by the Constitution

VI. Resolved, that the imprisonment of a in the government of the United States, or person under the protection of the laws of any department thereof, goes to the destruc-

this Commonwealth on his failure to obey tion of all the limits prescribed to their the simple order of the President to depart power by the Constitution: That words meant out of the United States, as is undertaken by that instrument to be subsidiary only to by the said act entitled “An act concern- the execution of the limited powers ought not ing aliens,” is contrary to the Constitution, to be so construed as themselves to give unone amendment to which has provided, that limited powers, nor a part so to be taken as “no person shall be deprived of liberty with- to destroy the whole residue of the instruout due process of law,” and that another ment: That the proceedings of the general having provided “‘that in all criminal prosecu- government under color of these articles will tions, the accused shall enjoy the right to a be a fit and necessary subject for revisal and

public trial by an impartial jury, to be in- correction at a time of greater tranquillity, formed of the nature and cause of the accusa- _ while those specified in the preceding resolu-

tion, to be confronted with the witnesses tions call for immediate redress. against him, to have compulsory process for VIII. Resolved, that the preceding Resoluobtaining witnesses in his favour, and to have tions be transmitted to the Senators and the assistance of counsel for his defense,” the Representatives in Congress from this Comsame act undertaking to authorize the Presi- monwealth, who are hereby enjoined to predent to remove a person out of the United sent the same to their respective Houses, and States who is under the protection of the to use their best endeavors to procure, at the law, on his own suspicion, without accusation, next session of Congress, a repeal of the afore-

without jury, without public trial, without said unconstitutional and obnoxious acts. confrontation of the witnesses against him, IX. Resolved, lastly, that the Governor of without having witnesses in his favour, with- this Commonwealth be, and is hereby auout defense, without counsel, is contrary to thorized and requested to communicate the these provisions also of the Constitution, is preceding Resolutions to the Legislatures of therefore not law, but utterly void and of no the several States, to assure them that this force. That transferring the power of judg- Commonwealth considers Union for specified ing any person who is under the protection National purposes, and particularly for those of the laws, from the courts to the Presi- specified in their late Federal Compact, to be dent of the United States, as is undertaken friendly to the peace, happiness, and prosby the same act concerning aliens, is against perity of all the States: that faithful to that

the article of the Constitution which pro- compact according to the plain intent and vides, that “the judicial power of the United meaning in which it was understood and States shall be vested in courts, the judges acceded to by the several parties, it is sinof which shall hold their offices during good cerely anxious for its preservation: that it behavior,” and that the said act is void for does also believe, that to take from the States that reason also; and it is further to be noted, all the powers of self-government, and transthat this transfer of judiciary power is to that fer them toa general and consolidated governmagistrate of the general government who’ ment, without regard to the special delegaalready possesses all the executive, and a_ tions and reservations solemnly agreed to in qualified negative in all the legislative powers. that compact, is not for the peace, happiness, VII. Resolved, that the construction ap- or prosperity of these States: And that, thereplied by the general government (asis evinced fore, this Commonwealth is determined, as by sundry of their proceedings) to those parts it doubts not its co-States are, tamely to of the Constitution of the United States which submit to undelegated and consequently undelegate to Congress a power to lay and _ limited powers in no man or body of men on collect taxes, duties, imposts, and excises; to earth: that if the acts before specified should pay the debts, and provide for the common _ stand, these conclusions would flow from

KENTUCKY AND VIRGINIA RESOLUTIONS OF 1798 _ 181 them; that the general government may place _ the Constitution has not been wise in fixing

any act they think proper on the list of crimes limits to the government it created, and and punish it themselves, whether enumerated whether we should be wise in destroying those

or not enumerated by the Constitution as cog- limits; let him say what the government is nizable by them: that they may transfer its if it be not a tyranny, which the men of our cognizance to the President or any other per- choice have conferred on the President, and son, who may himself be the accuser, counsel, the President of our choice has assented to judge, and jury, whose suspicions may be the and accepted over the friendly strangers, evidence, his order the sentence, his officer the to whom the mild spirit of our country and its executioner, and his breast the sole record laws had pledged hospitality and protection: of the transaction: that a very numerous and that the men of our choice have more revaluable description of the inhabitants of spected the bare suspicions of the President these States being by this precedent reduced than the solid rights of innocence, the claims as outlaws to the absolute dominion of one of justification, the sacred force of truth, and man, and the barrier of the Constitution thus the forms and substance of law and justice. swept away from us all, no rampart now re- In questions of power then let no more be

mains against the passions and the powers heard of confidence in man, but bind him of a majority of Congress, to protect from a down from mischief by the claims of the like exportation or other more grievous pun- Constitution. That this Commonwealth does ishment the minority of the same body, the therefore call on its co-States for an expreslegislatures, judges, governors, and counselors sion of their sentiments on the acts concernof the States, nor their other peaceable in- ing aliens, and for the punishment of certain habitants who may venture to reclaim the crimes herein before specified, plainly declarconstitutional rights and liberties of the State ing whether these acts are or are not auand people, or who for other causes, good or thorized by the Federal Compact. And it bad, may be obnoxious to the views or marked doubts not that their sense will be so an-

by the suspicions of the President, or be nounced as to prove their attachment unthought dangerous to his or their elections altered to limited government, whether gen-

or other interests, public or personal: that eral or particular, and that the rights and the friendless alien has indeed been selected liberties of their co-States will be exposed to

as the safest subject of a first experiment, no dangers by remaining embarked on a but the citizen will soon follow, or rather common bottom with their own: That they has already followed: for, already has a sedi- will concur with this Commonwealth in contion act marked him as its prey: that these sidering the said acts so palpably against the and successive acts of the same character, Constitution as to amount to an undisguised unless arrested on the threshold, may tend to declaration, that the compact is not meant drive these States into revolution and blood, to be the measure of the powers of the genand will furnish new calumnies against Re- eral government, but that it will proceed in publican governments, and new pretexts for the exercise over these States of all powers those who wish it to be believed, that man whatsoever: That they will view this as seizcannot be governed but by a rod of iron: that ing the rights of the States and consolidatit would be a dangerous delusion were a_ ing them in the hands of the general governconfidence in the men of our choice to silence ment with a power assumed to bind the States

our fears for the safety of our rights: that (not merely in cases made Federal) but in confidence is everywhere the parent of des- all cases whatsoever, by laws made, not with

potism: free government is founded in jeal- their consent, but by others against their ousy and not in confidence; it is jealousy and consent: That this would be to surrender not confidence which prescribes limited Con- the form of government we have chosen, and

stitutions to bind down those whom we are to live under one deriving its powers from obliged to trust with power: that our Con- its own will, and not from our authority; stitution has accordingly fixed the limits to and that the co-States, recurring to their which and no further our confidence may go; __—natural right in cases not made F ederal, will

and let the honest advocate of confidence concur in declaring these acts void and of read the alien and sedition acts, and say if no force, and will each unite with this Com-

182 DOCUMENTS OF AMERICAN History monwealth in requesting their repeal at the consolidate the states, by degrees, into one

next session of Congress. sovereignty, the obvious tendency and _in-

2. Vircinta RESOLUTIONS evitable consequence of which would be to

December 24. 1798 transform the present republican system of ; the United States into an absolute, or, at (Elliot’s Debates, 1861 ed., Vol. IV, p. 528-529) best, a mixed monarchy. yo Resolved, That the General Assembly of That the General Assembly doth particuVirginia doth unequivocally express a firm larly PROTEST against the palpable and resolution to maintain and defend the Con- alarming infractions of the Constitution in stitution of the United States, and the Con- the two late cases of the “Alien and Sedition stitution of this state, against every aggres- Acts,” passed at the last session of Congress; sion either foreign or domestic; and that they the first of which exercises a power nowhere

will support the Government of the United delegated to the Federal Government, and States in all measures warranted by the which, by uniting legislative and judicial

former. powers to those of [the] executive, subverts

That this Assembly most solemnly declares the general principles of free government, as a warm attachment to the union of the states, well as the particular organization and posito maintain which it pledges all its powers; tive provisions of the Federal Constitution:

and that, for this end, it is their duty to and the other of which acts exercises, in like watch over and oppose every infraction of manner, a power not delegated by the Conthose principles which constitute the only stitution, but, on the contrary, expressly and basis of that Union, because a faithful ob- positively forbidden by one of the amendservance of them can alone secure its ex- ments thereto,—a power which, more than

istence and the public happiness. any other, ought to produce universal alarm, That this Assembly doth explicitly and because it is levelled against the right of peremptorily declare that it views the powers freely examining public characters and measof the Federal Government as resulting from ures, and of free communication among the

the compact to which the states are parties, people thereon, which has ever been justly as limited by the plain sense and intention deemed the only effectual guardian of every of the instrument constituting that compact; other right. as no further valid than they are authorized That this state having, by its Convention by the grants enumerated in that compact; which ratified the Federal Constitution, exand that, in case of a deliberate, palpable, pressly declared that, among other essential and dangerous exercise of other powers not rights, “‘the liberty of conscience and of the granted by the said compact, the states, who _ press cannot be cancelled, abridged, restrained

are parties thereto, have the right and are pr modified by any authority of the United in duty bound to interpose for arresting the States,” and from its extreme anxiety to guard

progress of the evil, and for maintaining these rights from every possible attack of within their respective limits the authorities, sophistry or ambition, having, with other rights, and liberties appertaining to them. states, recommended an amendment for that That the General Assembly doth also ex- purpose, which amendment was in due time press its deep regret, that a spirit has in annexed to the Constitution,—it would mark sundry instances been manifested by the a reproachful inconsistency and criminal deFederal Government to enlarge its powers generacy, if an indifference were now shown by forced constructions of the constitutional to the palpable violation of one of the rights charter which defines them; and that indica- thus declared and secured, and to the estions have appeared of a design to expound tablishmen? of a precedent which may be certain general phrases (which, having been fatal to the other. copied from the very limited grant of powers That the good people of this commonin the former Articles of Confederation, were wealth, having ever felt and continuing to the less liable to be misconstrued) so as to feel the most sincere affection for their destroy the meaning and effect of the partic- brethren of the other states, the truest anxular enumeration which necessarily explains iety for establishing and perpetuating the and limits the general phrases; and so as to union of all and the most scrupulous fidelity

THE KENTUCKY RESOLUTIONS OF 1799 183 to that Constitution, which is the pledge of aforesaid are unconstitutional; and that the mutual friendship, and the instrument of necessary and proper measures will be taken mutual happiness, the General Assembly doth by each for co-operating with this state, in solemnly appeal to the like dispositions of maintaining unimpaired the authorities, the other states, in confidence that they will rights, and liberties reserved to the states concur with this Commonwealth in declar- respectively, or to the people... . ing, as it does hereby declare, that the acts

103. THE KENTUCKY RESOLUTIONS OF 1799 February 22, 1799 (Elliot’s Debates, 1861 ed. Vol. IV, p. 544 ff.) The unfavorable character of the replies of cussion and judgment of our fellow-citizens various States to the Resolutions of 1798 led to a throughout the Union. Whether the like reassertion of the principles expressed in those decency and temper have been observed in . resolutions. The Kentucky legislature not only the answers of most of those States. who reaffirmed its attachment to the original resolu- have denied tt ted byj he | tions, but added a resolution asserting that nulli- ¢ Cemle ora . cmpted to o viate the great fication by the States was the rightful remedy truths contained in those resolutions, we have with which to meet infractions of the Constitu- 20Ww only to submit to a candid world. Faithtion. In Virginia, the replies of the States were ful to the true principles of the federal Union,

referred to a special committee of which James unconscious of any designs to disturb the

weeson, was arma. aa report of the com harmony of that Union, and anxious only to mittec, drafted by Madison, can be found in escape the fangs of despotism, the good

references, see Doc. No. 102. oo

Madison’s Writings, ed. by G. Hunt, Vol. VI. For neople of this vontmonweatth in regardless of censure or calumniation. Lest, however, The representatives of the good people of the silence of.this commonwealth should be this commonwealth, in General Assembly con- construed into an acquiescence in the docvened, having maturely considered the an- trines and principles advanced and attempted

swers of sundry states in the Union, to their to be maintained by the said answers, or at resolutions passed the last session, respect- least those of our fellow-citizens throughout ing certain unconstitutional laws of Congress, the Union who so widely differ from us on commonly called the Alien and Sedition Laws, those important subjects, should be deluded would be faithless, indeed, to themselves and _ by the expectation, that we shall be deterred to those they represent, were they silently from what we conceive our duty, or shrink to acquiesce in the principles and doctrines from the principles contained in those resoluattempted to be maintained in all those an- tions—therefore,

swers, that of Virginia only excepted. To Resolved, That this commonwealth conagain enter the field of argument, and at-_ siders the federal Union, upon the terms and tempt more fully or forcibly to expose the for the purposes specified in the late comunconstitutionality of those obnoxious laws, pact, conducive to the liberty and happiness would, it is apprehended, be as unnecessary of the several states: That it does now unas unavailing. We cannot, however, but la- equivocally declare its attachment to the ment, that, in the discussion of those interest- Union, and to that compact, agreeably to its ing subjects, by sundry of the legislatures of | obvious and _ real intention, and will be our sister states, unfounded suggestions, and among the last to seek its dissolution: That uncandid insinuations, derogatory to the true if those who administer the general governcharacter and principles of this common- ment be permitted to transgress the limits wealth have been substituted in place of fair fixed by that compact, by a total disregard to reasoning and sound argument. Our opinions _ the special delegations of power therein con-

of these alarming measures of the general tained, an annihilation of the state governgovernment, together with our reasons for ments, and the creation upon their ruins of a those opinions, were detailed with decency, general consolidated government, will be the and with temper, and submitted to the dis- inevitable consequence: That the principle

184 DOCUMENTS OF AMERICAN History and construction contended for by sundry of its sister states, in matters of ordinary of the state legislatures, that the general or doubtful policy, yet, in momentous regulagovernment is the exclusive judge of the _ tions like the present, which so vitally wound extent of the powers delegated to it, stop not the best rights of the citizen, it would conshort of despotism—since the discretion of _ sider a silent acquiescence as highly criminal: those who administer the government, and That although this commonwealth, as a party not the Constitution, would be the measure of _ to the federal compact, will bow to the laws

their powers: That the several states who of the Union, yet, it does, at the same time formed that instrument being sovereign and declare, that it will not now, or ever hereindependent, have the unquestionable right after, cease to oppose in a constitutional to judge of the infraction; and, That a nul- manner, every attempt at what quarter soification of those sovereignties, of all unau- ever offered, to violate that compact. And, thorized acts done under color of that instru- finally, in order that no pretext or arguments

ment is the rightful remedy: That this may be drawn froma supposed acquiescence, commonwealth does, under the most deliber- on the part of this commonwealth in the ate reconsideration, declare, that the said constitutionality of those laws, and be thereby Alien and Sedition Laws are, in their opin- used as precedents for similar future viola- , ion, palpable violations of the said Constitu- tions of the federal compact—this commontion; and, however cheerfully it may be dis- wealth does now enter against them its solemn posed to surrender its opinion to a majority PROTEST.

104. STATE REPLIES TO THE VIRGINIA AND KENTUCKY RESOLUTIONS 1799

(Elliot’s Debates, 1861 ed., Vol. IV, p. 533, 539) Every State from Maryland north replicd to the the authority of deciding on the constituVirginia and Kentucky Resolutions, disavowing, tionality of any act or law of the Congress with varying degrces of indignation, the consti- of the United States. tutional principles set forth in these Resolutions. 2. Resolved, That for any state legislature

The replies of the States are particularly interest- ;

Ing because of the gencral assertion that the to assume that authority would be— «ge judiciary rather than the legislative is the proper _‘1St. Blending together legislative and judibody to pass on the constitutionality of Congres- lal powers;

sional acts. Many of the replies are given in 2d. Hazarding an interruption of the peace Elliot’s Debates, Vol. IV, p. 532-539. See, F. M. of the states by civil discord, in case of a Anderson, “Contemporary Opinion of the Vir- diversity of opinions among the state legislaginia and Kentucky Resolutions”, American His- tures; each state having, in that case, no

torical Review, Vol. V. resort, for vindicating its own opinions, but

the strength of its own arm; 1. THE STATE OF RuHopE ISLAND AND 3d. Submitting most important questions PROVIDENCE PLANTATIONS TO VIRGINIA of law to less competent tribunals; and,

February, 1799 4th. An infraction of the Constitution of

Certain resolutions of the Legislature of the United States, expressed in plain terms. Virginia, passed on the 21st of December 3. Resolved, That, although, for the above last, being communicated to the Assembly,— __ reasons, this legislature, in their public ca1. Resolved, That, in the opinion of this pacity, do not feel themselves authorized to

legislature, the second section of the third consider and decide on the constitutionality article of the Constitution of the United of the Sedition and Alien laws, (so called,) States, in these words, to wit,—‘‘The judicial yet they are called upon, by the exigency of power shall extend to all cases arising under _ this occasion, to declare that, in their private the laws of the United States,”’—vests in the opinions, these laws are within the powers Federal Courts, exclusively, and in the Su- delegated to Congress, and promotive of the preme Court of the United States, ultimately, welfare of the United States.

LaND AcT oF 1800 185 4. Resolved, That the governor communi- That the state legislatures are not the cate these resolutions to the supreme execu- proper tribunals to determine the constitutive of the state of Virginia, and at the same tionality of the laws of the general govern-

time express to him that this legislature ment; that the duty of such decision is cannot contemplate, without extreme concern properly and exclusively confided to the and regret, the many evil and fatal conse- judicial department. quencies which may flow from the very un- That, if the legislature of New Hampshire, warrantable resolutions aforesaid, of the for mere speculative purposes, were to exlegislature of Virginia, passed on the twenty- press an opinion on the acts of the general

first day of December last. government, commonly called “the Alien and Sedition Bills”, that opinion would unreserv-

edly be, that those acts are constitutional, 2. New HAMPSHIRE RESOLUTION ON THE d, in the present critical situation of our VIRGINIA AND KENTUCKY RESOLUTIONS ane, ~ F ; country, highly expedient.

June 15, 1799 That the constitutionality and expediency The legislature of New Hampshire, having of the acts aforesaid have been very ably taken into consideration certain resolutions advocated and clearly demonstrated by many of the General Assembly of Virginia, dated citizens of the United States, more especially December 21, 1798; also certain resolutions by the minority of the General Assembly of of the legislature of Kentucky, of the 10th Virginia. The legislature of New Hampshire,

of November 1798:— therefore, deem it unnecessary, by any train

Resolved, That the legislature of New of arguments, to attempt further illustration

Hampshire unequivocally express a firm reso- of the propositions, the truth of which, it is lution to maintain and defend the Constitu- confidently believed, at this day, is very gention of the United States, and the Constitu- erally seen and acknowledged.

tion of this State, against every aggression, Which report, ... was unanimously reeither foreign or domestic, and that they will ceived and adopted, one hundred and thirtysupport the government of the United States seven members being present. in all measures warranted by the former.

105. LAND ACT OF 1800 May 10, 1800 (U.S. Statutes at Large, Vol. II, p. 73 ff.) Sales under the Land Act of 1796 were disap- act providing for the sale of the lands of the pointingly slow; in order to attract settlers and United States, in the territory northwest dispose of the public domain the government of the Ohio, and above the mouth of Kenprovided for land purchases on credit. The result tucky river . there shall be four land off was somewhat unfortunate: the credit system en- , , ; / OICES couraged speculation and made collections diffi- established in the said territory; one at cult. It was discontinued by the land act of 1820, Cimcinnati . . . one at Chilicothe . . . one Doc. No. 122. See, P. J. Treat, The National Land at Marietta... and one at Steubenville. Systemt, 1785-1820; R. T. Hill, The Public Do- .. . Each of the said offices shall be under main and Democracy, B. W. Bond, The Civiliza- _ the direction of an officer, . . . who shall be

tion of the Old Northwest, ch. x. appointed by the President of the United

States, by and with the advice and consent An Act to amend the act intituled “An act of the Senate, .. .

for providing for the sale of the lands of Sec. 3. That the surveyor-general shall the United States, in the territory north- cause the townships west of the Muskingum, west of the Ohio, and above the mouth of which by the above-mentioned act are di-

the Kentucky River.” rected to be sold in quarter townships, to be

Sec. 1. Be it enacted, That for the dis- subdivided into half sections of three hunposal of the lands of the United States, dred and twenty acres each... . directed to be sold by the act, intituled “An sec. 4. That the lands thus subdivided

186 DOCUMENTS OF AMERICAN History . . . Shall be offered for sale in sections and fourth part within four years after the day half sections, subdivided as before directed of sale.

at the following places and times, ... All 3, Interest, at the rate of six per cent. a lands, remaining unsold, at the closing of year from the day of sale shall be charged either of the public sales, may be disposed upon each of the three last payments, ...

of at private sale by the registers of these 4. A discount at the rate of eight per respective land offices, in the manner herein cent., a year, shall be allowed on any of the

after y is shall lastthepayments, shall ec.Presctped 5. That no.lands shall bbeabsopare’ y efore same shallwhich become due,be.. paid .

virtue of this act, at either public or private 5. If the first payment of one fourth part sale, for less than two dollars per acre, and of the purchase money shall not be made payment may be made for the oy all within rortyand days after theand sale, the epost, purchasers, either in specie, orsame in evidences payment fees, paid made by the of the public debt of the United States, ... purchaser, shall be forfeited, and the lands

and shall be made in the following man- shall... be disposed of at private sale, ner, and under the following conditions, to on the same terms and conditions, and in

wit: the same manner as the other lands directed 1. At the time of purchase, every pur- by this act to be disposed of at private

chaser shall, exclusively of the fees here- sale: Provided, that the lands which shall after mentioned, pay six dollars for every have been sold at public sale, and which section, and three dollars for every half shall, on account of such failure of payment, section, he may have purchased, for survey- revert to the United States, shall not be ing expenses, and deposit one twentieth part sold at private sale, for a price less than of the amount of purchase money, to be the price that shall have been offered for

forfeited, if within forty days one fourth the same at public sale... . part of the purchase money, including the Sec. 16. That each person who, before

said twentieth part, is not paid. the passing of this act, shall have erected

2. One fourth part of the purchase money... a grist-mill or saw-mill upon any of shall be paid within forty days after the the lands herein directed to be sold, shall day of sale as aforesaid; another fourth part be entitled to the pre-emption of the sec-

shall be paid within two years; another tion... at the rate of two dollars per fourth part within three years; and another acre... .

106. JEFFERSON’S FIRST INAUGURAL ADDRESS March 4, 1801 (Richardson, ed. Messages and Papers, Vol. I, p. 322) This address is a classic exposition of democratic toward me, to declare a sincere consciousphilosophy, memorable alike for its confession ess that the task is above my talents, and of faith and for its literary beauty. For a brilliant that I approach it with those anxious and but critical analysis, see H. Adams, History of awry presentiments which the greatness of the United States During the Administration of the charge and the weakness of my power

Thomas Jefferson, Vol. I, ch. vii. For Jefferson, ; he mepite A cist InY Powers

see biographies by H. S. Randall, J. Parton, A.J. Justly Anspire. T1SINg nation, spread Nock, P. L. Ford, D. S. Muzzey, G. Chinard, Over a wide and fruitful land, traversing

F. W. Hirst, and J. T. Morse. all the seas with the rich productions of their industry, engaged in commerce with

Friends and Fellow-Citizens: nations who feel power and forget right, Called upon to undertake the duties of the advancing rapidly to destinies beyond the first executive office of our country, I avail reach of mortal eye—when I contemplate

myself of the presence of that portion of these transcendent objects, and see the my fellow-citizens which is here assembled honor, the happiness, and the hopes of this , to express my grateful thanks for the favor beloved country committed to the issue and with which they have been pleased to look the auspices of this day, I shrink from the

JEFFERSON’S First INAUGURAL ADDRESS 187 contemplation, and humble myself before brethren of the same principle. We are all the magnitude of the undertaking. Utterly, Republicans, we are all Federalists. If there indeed, should I despair did not the presence be any among us who would wish to disof many whom I here see remind me that solve this Union or to change its republican in the other high authorities provided by form, let them stand undisturbed as monu-

our Constitution I shall find resources of ments of the safety with which error of wisdom, of virtue, and of zeal on which to opinion may be tolerated where reason is rely under all difficulties. To you, then, left free to combat it. I know, indeed, that

gentlemen, who are charged with the sover- some honest men fear that a republican gov-

eign functions of legislation, and to those ernment can not be strong, that this Govassociated with you, I look with encourage- ernment is not strong enough; but would ment for that guidance and support which the honest patriot, in the full tide of sucmay enable us to steer with safety the ves- cessful experiment, abandon a government sel in which we are all embarked amidst the which has so far kept us free and firm on conflicting elements of a troubled world. the theoretic and visionary fear that this During the contest of opinion through Government, the world’s best hope, may which we have passed the animation of dis- by possibility want energy to preserve itself?

clissions and of exertions has sometimes I trust not. I believe this, on the contrary, worn an aspect which might impose on the strongest Government on earth. I bestrangers unused to think freely and to speak lieve it the only one where every man, at

and to write what they think; but this being the call of the law, would fly to the standard now decided by the voice of the nation, an- of the law, and would meet invasions of the nounced according to the rules of the Con- public order as his own personal concern. stitution, all will, of course, arrange them- Sometimes it is said that man can not be selves under the will of the law, and unite trusted with the government of himself. Can

in common efforts for the common good. he, then, be trusted with the government All, too, will bear in mind this sacred princi- of others? Or have we found angels in the ple, that though the will of the majority is forms of kings to govern him? Let history in all cases to prevail, that will to be rightful answer this question. must be reasonable; that the minority pos- Let us, then, with courage and confidence sess their equal rights, which equal law must pursue our own Federal and Republican

protect, and to violate would be oppression. principles, our attachment to union and Let us, then, fellow-citizens, unite with one representative government. Kindly separated

heart and one mind. Let us restore to social by nature and a wide ocean from the exintercourse that harmony and affection with- terminating havoc of one quarter of the out which liberty and even life itself are but globe; too high-minded to endure the degdreary things. And let us reflect that, having radations of the others; possessing a chosen banished from our land that religious intoler- country, with room enough for our descendance under which mamnkind so long bled and ants to the thousandth and thousandth gen-

suffered, we have yet gained little if we eration; entertaining a due sense of our countenance a political intolerance as des- equal right to the use of our own faculties, potic, as wicked, and capable of as bitter to the acquisitions of our own industry, to and bloody persecutions. During the throes honor and confidence from our fellowand convulsions of the ancient world, during citizens, resulting not from birth, but from the agonizing spasms of infuriated man, our actions and their sense of them; enseeking through blood and slaughter his lightened by a benign religion, professed,. inlong-lost liberty, it was not wonderful that deed, and practiced in various forms, yet the agitation of the billows should reach all of them inculcating honesty, truth, tem-

even this distant and peaceful shore; perance, gratitude, and the love of man;

that this should be more felt and feared by acknowledging and adoring an _ overruling some and less by others, and should divide Providence, which by all its dispensations opinions as to measures of safety. But every proves that it delights in the happiness of difference of opinion is not a difference of man here and his greater happiness hereprinciple. We have called by different names after—with all these blessings, what more is

188 DOCUMENTS OF AMERICAN HISTORY necessary to make us a happy and a prosper- of person under the protection of the habeas

ous people? Still one thing more, fellow- corpus, and trial by juries impartially secitizens—a wise and frugal Government, lected. These principles form the bright conwhich shall restrain men from injuring one _ stellation which has gone before us and another, shall leave them otherwise free to guided our steps through an age of revoluregulate their own pursuits of industry and tion and reformation. The wisdom of our improvement, and shall not take from the sages and blood of our heroes have been mouth of labor the bread it has earned. devoted to their attainment. They should be This is the sum of good government, and the creed of our political faith, the text of this is necessary to close the circle of our civic instruction, the touchstone by which

felicities, to try the services of those we trust; and

About to enter, fellow-citizens, on the should we wander from them in moments exercise of duties which comprehend every- of error or of alarm, let us hasten to rething dear and valuable to you, it is proper trace our steps and to regain the road which you should understand what I deem the es- alone leads to peace, liberty, and safety. sential principles of our Government, and I repair, then, fellow-citizens, to the post consequently those which ought to shape its you have assigned me. With experience Administration. I will compress them within enough in subordinate offices to have seen the narrowest compass they will bear, stating the difficulties of this the greatest of all, the general principle, but not all its limita- I have learnt to expect that it will rarely tions. Equal and exact justice to all men, of fall to the lot of imperfect man to retire whatever state or persuasion, religious or from this station with the reputation and political; peace, commerce, and honest’ the favor which bring him into it. Without friendship with all nations, entangling al- pretensions to that high confidence you reliances with none; the support of the State posed in our first and greatest revolutionary governments in all their rights, as the most character, whose preéminent services had competent administrations for our domestic entitled him to the first place in his counconcerns and the surest bulwarks against try’s love and destined for him the fairest antirepublican tendencies; the preservation page in the volume of faithful history, I of the General Government in its whole ask so much confidence only as may give constitutional vigor, as the sheet anchor of firmness and effect to the legal administraour peace at home and safety abroad; a_ tion of your affairs. I shall often go wrong jealous care of the right of election by the through defect of judgment. When right, people—a mild and safe corrective of abuses I shall often be thought wrong by those which are lopped by the sword of revolu- whose positions will not command a view of tion where peaceable remedies are unpro- the whole ground. I ask your indulgence for vided; absolute acquiescence in the decisions my own errors, which will never be intenof the majority, the vital principle of re- tional, and your support against the errors

publics, from which is no appeal but to of others, who may condemn what they force, the vital principle and immediate would not if seen in all its parts. The apparent of despotism; a well-disciplined probation implied by your suffrage is a militia, our best reliance in peace and for great consolation to me for the past, and the first moments of war, till regulars may my future solicitude will be to retain the relieve them; the supremacy of the civil good opinion of those who have bestowed over the military authority; economy in the it in advance, to conciliate that of others public expense, that labor may be lightly by doing them all the good in my power, burthened; the honest payment of our and to be instrumental to the happiness and debts and sacred preservation of the public freedom of all. faith; encouragement of agriculture, and of Relying, then, on the patronage of your commerce as its handmaid; the diffusion of good will, I advance with obedience to the information and arraignment of all abuses work, ready to retire from it whenever you at the bar of the public reason; freedom of become sensible how much better choice it religion; freedom of the press, and freedom is in your power to make. And may that

JEFFERSON ON THE IMPORTANCE OF NEW ORLEANS 189 Infinite Power which rules the destinies of best, and give them a favorable issue for the universe lead our councils to what is your peace and prosperity.

107. JEFFERSON ON THE IMPORTANCE OF NEW ORLEANS Letter to Robert R. Livingston April 18, 1802 (The Writings of Thomas Jefferson, ed. by H. E. Bergh, Vol. X, p. 311 ff.) This famous letter to the American minister to not, perhaps, be very long before some cirFrance anticipated the formal instructions of cumstance might arise, which might make

erms upon which France would sell New Or-

May I requesting pavingston ° asrenvain oe the cession of it to us the price of someleans and the Floridas to the United States. At thing of mor worth to her. Not so an it the same time Jefferson was writing to our min- ever be in the hands of France: the imister in England, Rufus King, that we would petuosity of her temper, the energy and rest-

“marry ourselves to the British fleet and nation” essness of her character, placed in a point rather than see France control the Mississippi and of eternal friction with us, and our charthe Gulf. For reference see Doc. No. 108. acter, which, though quiet and loving peace and the pursuit of wealth, is high-minded,

Washington, April 18, 1802. despising wealth in competition with insult ... The cession of Louisiana and the or injury, enterprising and energetic as any Floridas by Spain to France, works most nation on earth; these circumstances render sorely on the United States. On this subject it impossible that France and the United the Secretary of State has written to you States can continue long friends, when they

fully, yet I cannot forbear recurring to it meet in so irritable a position. They, as personally, so deep is the impression it well as we, must be blind if they do not see makes on my mind. It completely reverses this; and we must be very improvident if all the political relations of the United we do not begin to make arrangements on States, and will form a new epoch in our that hypothesis. The day that France takes political course. Of all nations of any con- possession of New Orleans, fixes the sensideration, France is the one which, hitherto, tence which is to restrain her forever within has offered the fewest points on which we her low-water mark. It seals the union of could have any conflict of right, and the two nations, who, in conjunction, can mainmost points of a communion of interests. tain exclusive possession of the ocean. From From these causes, we have ever looked to that moment, we must marry ourselves to her as our natural friend, as one with which . the British fleet and nation. We must turn

we could never have an occasion of dif- all our attention to a maritine force, for ference. Her growth, therefore, we viewed as which our resources place us on very high our own, her misfortunes ours. There is on ground; and having formed and connected the globe one single spot, the possessor of together a power which may render reénwhich is our natural and habitual enemy. It forcement of her settlements here impossible is New Orleans, through which the produce to F rance, make the first cannon which shall of three-eighths of our territory must pass be fired in Europe the signal for the tearing to market, and from its fertility it will ere up of any settlement she may have made long yield more than half of our whole prod- and for holding the two continents of Ameruce, and contain more than half of our inhabi- ica in sequestration for the common purposes tants. France, placing herself in that door, of the United British and American nations

assumes to us the attitude of defiance. Spain This is not a state of things we seek or

might have retained it quietly for years. desire... .

Her pacific dispositions, her feeble state, If France considers Louisiana, however, as would induce her to increase our facilities indispensable for her views, she might perthere, so that her possession of the place haps be willing to look about for arrangewould hardly be felt by us, and it would ments which might reconcile it to our inter-

190 DocUMENTS OF AMERICAN HISTORY ests. If anything could do this, it would siderations, on every proper occasion, with

be the ceding to us the island of New the government where you are. They are

Orleans and the Floridas. This would cer- such as must have effect, if you can find tainly, in a great degree, remove the causes means of producing thorough reflection on of jarring and irritation between us, and them by that government. ... Every eye perhaps for such a length of time, as might in the United States is now fixed on the afproduce other means of making the measure fairs of Louisiana. Perhaps nothing since the

permanently conciliatory to our interests revolutionary war, has produced more unand friendships. It would, at any rate, relieve easy sensations through the body of the na- } us from the necessity of taking immediate tion. Notwithstanding temporary bickerings measures for countervailing such an opera- have taken place with France, she has still tioa by arrangements in another quarter. But a strong hold on the affections of our citizens still we should consider New Orleans and the _ generally. I have thought it not amiss, by way Floridas as no equivalent for the risk of a of supplement to the letters of the Secretary

quarrel with France, produced by her of State, to write you this private one, to

vicinage. impress you with the importance we affix to I have no doubt you have urged these con-_ this transaction... .

108. THE CESSION OF LOUISIANA April 30, 1803 (Malloy, ed. Treaties, Conventions, etc., Vol. I, p. 508 ff.) By the Treaty of Fontainebleau of 1762, France 1st October, 1800 between the First Consul ceded Louisiana west of the Mississippi to Spain. of the French Republic and his Catholic See Shepherd, “Cession of Louisiana to Spain”, Majesty, it was agreed as follows: “His Pol. Sci. Qt., Vol. XIX, p. 439. By the secret Catholic Majesty promises and engages on Treaty of St. Ildefonso, Spain ceded this ter- his part. to cede to the French Republic, six

ritory back to France. This substitution of a par, . poe?

powerful for a weak neighbour along the Mis- months after the full and entire execution of sissippi and at New Orleans caused consterna- the conditions and stipulations herein relation in the West and to Jefferson and his ad-_ tive to his royal highness the duke of Parma, visers. Congress appropriated $2,000,000 for the the colony or province of Louisiana, with the purchase of New Orleans, and Jefferson dis- same extent that it now has in the hands of patched Monroe to co-operate with Livingston Spain, and that it had when France possessed to negotiate the purchase. For reasons primarily jt; and such as it should be after the treaties concerned with the critical military situation ON — sybsequently entered into between Spain and

the Continent, Napoleon decided to sell to the other states.” And whereas, in pursuance of cession was accordingly made. By a convention the Treaty, and particularly of the third arti-

United States the whole of Louisiana, and the . ; . of April 30, 1803, the United States agreed to pay cle, the French Republic has an incontestible

sixty million francs for Louisiana. The most title to the domain and to the possession of thorough history of the negotiations is, H. Adams, the said territory:—The First Consul of the History of the United States, Vol. 1, chs. xiv-xvii, | French Republic desiring to give to the Vol. II, chs. i-vi. See also, E. W. Lyon, Louisiana United States a strong proof of his friendin French Diplomacy, 1759-1804; A.P. Whitaker, ship, doth hereby cede to the said United The Mississippi Question, 1795-1803; J. K. Hos- States, in the name of the French Republic, mer, Phe Lousiana Purchase; S. F. Bemis, ed. forever and in full sovereignty, the said ter-

American Secretaries of State, Vol. III, p. 9 ff. -itory with all its right d t

For the Louisiana Boundary, T. M. Marshall, y gnis ane appar nance)

History of the Western Boundary of the Louisi- fully and in the same manner as they have ana Purchase. For the constitutional questions, been acquired by the French Republic, in see American Insurance Co. v. Canter, Doc. No. virtue of the above-mentioned Treaty, con134; and E. S. Brown, Constitutional History of cluded with his Catholic Majesty.

the Louisiana Purchase. Art. II. In the cession made by the pre-

ceding article are included the adjacent isArt. I. Whereas, by the article the third lands belonging to Louisiana, all public lots of the treaty concluded at St. Idelfonso, the and squares, vacant lands, and all public

MARBURY V. MADISON 191 buildings, fortifications, barracks, and other erty, and the Religion which they proedifices which are not private property— fess... . The Archives, papers, and documents, rela- Art, VII. It has been agreed between the tive to the domain and sovereignty of Louisi- contracting parties, that the French ships ana, and its dependencies, will be left in the coming directly from France or any of her possession of the Commissaries of the United colonies, loaded only with the produce and States, and copies will be afterwards given manufactures of France or her said Colonies; in due form to the Magistrates and Muni- and the ships of Spain coming directly from cipal officers, of such of the said papers Spain or any of her colonies, loaded only with and documents as may be necessary to the produce or manufactures of Spain or her

them. Colonies, shall be admitted during the space

Arr. III. The inhabitants of the ceded ter- of twelve years in the ports of New Orleans, ritory shall be incorporated in the Union of and in all other legal ports of entry within the United States, and admitted as soon as_ the ceded territory, in the same manner as possible, according to the principles of the the ships of the United States coming dliFederal Constitution, to the enjoyment of all rectly from France or Spain, or any of their the rights, advantages and immunities of colonies, without being subject to any other citizens of the United States; and inthe mean or greater duty on merchandize, or other or time they shall be maintained and protected greater tonnage than that paid by the citizens

in the free enjoyment of their liberty, prop- of the United States... . 109. MARBURY v. MADISON 1 Cranch, 137 1803

Original proceeding for mandamus. Under the MarsHALL, C. J... . The peculiar deliauthority of the Judiciary Act of February 27, cacy of this case, the novelty of some of its 1801, the President appointed one William circumstances, and the real difficulty attendMarbury justice of the peace; because of the ing the points which occur in it, require a negligence of Secretary of State Marshall the complet 4 f th aor ; commission was not delivered, and President Jef- iprete —EXPosition 0 . € principles on ferson instructed his Secretary of State Madison which the opinion to be given by the court is not to deliver the commission. Marbury sued for founded. .. . a writ of mandamus requiring Madison to de- In the order in which the court has viewed liver his commission. Marshall’s opinion embraced this subject, the following questions have two questions: the ethics of withholding the com- been considered and decided:

mission, and the right of the Supreme Court to ist. Has the applicant a right to the comMarshall declared, in what is generally considered ™SSion he demands?

obiter dicta, that the President had no right to 2dly, nae nas ent, and that right has

withhold Marbury’s commission. On the second, een violated, 0 the laws of his country afMarshall decided that the provision of the Judi- ford him a remedy? ciary Act of 1789 authorizing the Supreme Court 3dly. If they do afford him a remedy, is it to issue a writ of mandamus, was contrary to the 2 ™andamus issuing from this court? . . . Constitution and therefore void. This is the first The first object of enquiry is, case in which the Supreme Court held a law of Has the applicant a right to the commisCongress void: not until the Dred Scott decision sion he demands? .. . did the Court hold another act of Congress void. It is therefore decidedly the opinion of the

On this famous case see, A. Beveridge, Life of court that wh us |

John Marshall, Vol. III, ch. iii; E. S. Corwin, 2” en a commission has been

The Doctrine of Judicial Review: A. C. Mc. signed by the President, the appointment is

Laughlin. The Courts, The Constitution and made; and that the commission is complete, , Parties, ch. i; L. B. Boudin, Government by when the seal of the United States has been Judiciary, Vol. I, ch. x; C. Warren, The Supreme affixed to it by the secretary of state... . Court in United States History, (1928 ed.) Vol. Mr. Marbury, then, since his commission

I, ch. v. was signed by the President, and sealed by

192 DOCUMENTS OF AMERICAN HISTORY the secretary of state, was appointed; and as It is, then, the opinion of the Court, the law creating the office, gave the officer a Ist. That by signing the commission of right to hold for five years, independent of Mr. Marbury, the president of the United the executive, the appointment was not rev- States appointed him a justice of peace for ocable; but vested in the officer legal rights, the county of Washington in the district of which are protected by the laws of his coun- Columbia; and that the seal of the United

try. States, affixed thereto by the secretary of To withhold his commission, therefore, is state, is conclusive testimony of the verity of an act deemed by the court not warranted by the signature, and of the completion of the law, but violative of a vested legal right. appointment; and that the appointment con2. This brings us to the second enquiry: ferred on him a legal right to the office for

which is, the space of five years. If he has a right, and that right has been 2dly. That, having this legal title to the

violated, do the laws of his country afford office, he has a consequent right to the com-

him a remedy? ... mission; a refusal to deliver which, is a plain The government of the United States has violation of that right, for which the laws of been emphatically termed a government of his country afford him a remedy. laws, and not of men. It will certainly cease It remains to be enquired whether,

to deserve this high appellation, if the laws 3dly. He is entitled to the remedy for furnish no remedy for the violation of a which he applies. This depends on

vested legal right. lst. The nature of the writ applied for, and If this obloquy is to be cast on the juris- 2dly. The power of this court... .

prudence of our country, it must arise from This, then, is a plain case for a mandamus,

the peculiar character of the case... . either to deliver the commission, or a copy By the constitution of the United States, of it from the record; and it only remains to the President is invested with certain impor- be enquired, tant political powers, in the exercise of which Whether it can issue from this court.

he is to use his own discretion, and is ac- The act to establish the judicial courts of countable only to his country in his political the United States authorizes the supreme character, and to his own conscience. To aid court “‘to issue writs of mandamus, in cases him in the performance of these duties, he is warranted by the principles and usages of authorized to appoint certain officers, who law, to any courts appointed, or persons holdact by his authority and in conformity with ing office, under the authority of the United

his orders. States.”

In such cases, their acts are his acts; and The secretary of state, being a person holdwhatever opinion may be entertained of the ing an office under the authority of the manner in which executive discretion may be United States is precisely within the letter used, still there exists, and can exist, no of the description; and if this court is not aupower to control that discretion. The sub- thorized to issue a writ of mandamus to such

jects are political... . an officer, it must be because the law is un-

The conclusion from this reasoning is, that constitutional, and therefore absolutely inwhere the heads of departments are the po- capable of conferring the authority and aslitical or confidential agents of the executive, signing the duties which its words purport to merely to execute the will of the President, confer and assign. or rather to act in cases in which the execu- The constitution vests the whole judicial tive possesses a constitutional or legal discre- power of the United States in one supreme tion, nothing can be more perfectly clear court, and such inferior courts as congress than that their acts are only politically ex- shall, from time to time, ordain and estabaminable. But where a specific duty is as- lish. This power is expressly extended to all signed by law, and individual rights depend cases arising under the laws of the United upon the performance of that duty, it seems States; and consequently, in some form, may equally clear that the individual who con- be exercised over the present case; because siders himself injured, has a right to resort to the right claimed is given by a law of the

the laws of his country for a remedy... . United States.

MaRBURY V. MADISON 193 In the distribution of this power it is de- erected. The exercise of this original right is clared, that “the supreme court shall have a very great exertion, nor can it nor ought it original jurisdiction in all cases affecting am- to be frequently repeated. The principles bassadors, other public ministers and consuls, therefore so established are deemed fundaand those in which a state shall be a party. mental. And as the authority from which In all other cases, the supreme court shall they proceed is supreme and can seldom act,

have appellate jurisdiction.” .. . they are designed to be permanent.

If it had been intended to leave it in the This original and supreme will organizes

discretion of the legislature to apportion the the government, and assigns to different dejudicial power between the supreme and in- partments their respective powers. It may ferior courts according to the will of that either stop here or establish certain limits not body, it would certainly have been useless to to be transcended by those departments. have proceeded further than to have defined The government of the United States is the judicial power, and the tribunals in which of the latter description. The powers of the it should be vested. The subsequent part of legislature are defined and limited; and that the section is mere surplusage, is entirely those limits may not be mistaken or forgotwithout meaning, if such is to be the con- ten, the constitution is written. To what purstruction. If congress remains at liberty to pose are powers limited, and to what purpose give this court appellate jurisdiction, where is that limitation committed to writing, if the constitution has declared their jurisdic- these limits may, at any time, be passed by tion shall be original; and original jurisdic- those intended to be restrained? The distion where the constitution has declared it tinction between a government with limited shall be appellate; the distribution of jurisdic- and unlimited powers is abolished if those tion, made in the constitution, is form with- limits do not confine the persons on whom

out substance. they are imposed and if acts prohibited and Affirmative words are often, in their op- acts allowed are of equal obligation. It is a eration, negative of other objects than those proposition too plain to be contested, that affirmed; and in this case, a negative or ex- the constitution controls any legislative act clusive sense must be given to them or they _ repugnant to it; or, that the legislature may

have no operation at all. alter the constitution by an ordinary act.

It cannot be presumed, that any clause in Between these alternatives there is no midthe constitution is intended to be without dle ground. The constitution is either a sueffect; and therefore such a construction is perior paramount law, unchangeable by

inadmissible, unless the words require it. . . . ordinary means, or it is on a level with ordiThe authority, therefore, given to the su- nary legislative acts, and, like other acts, 1s preme court, by the act establishing the ju- alterable when the legislature shall please to

dicial courts of the United States, to issue alter it. writs of mandamus to public officers, appears If the former part of the alternative be not to be warranted by the constitution; and true, then a legislative act contrary to the it becomes necessary to inquire whether a constitution is not law; if the latter part be jurisdiction so conferred can be exercised. true, then written constitutions are absurd The question whether an act repugnant to attempts, on the part of the people, to limit the constitution can become the law of the a power in its own nature illimitable. land, is a question deeply interesting to the Certainly all those who have framed writUnited States; but, happily not of an in- ten constitutions contemplate them as formtricacy proportioned to its interest. It seems ing the fundamental and paramount law of only necessary to recognize certain principles the nation, and consequently the theory of supposed to have been long and well estab- every such government must be that an act

lished, to decide it. of the legislature repugnant to the ConstituThat the people have an original right to tion is void.

establish for their future government such This theory is essentially attached to a principles as, in their opinion, shall most con- written constitution, and is consequently to

duce to their own happiness, is the basis on be considered, by this court as one of the which the whole American fabric has been fundamental principles of our society. It is

194 DocUMENTS OF AMERICAN HistToRY not, therefore, to be lost sight of in the fur- and declaring that those limits may be passed

ther consideration of this subject. at pleasure.

If an act of the legislature repugnant to ‘That it thus reduces to nothing what we the constitution is void, does it, notwith- have deemed the greatest improvement on standing its invalidity, bind the courts and political institutions, a written constitution, oblige them to give it effect? Or, in other would of itself be sufficient, in America, words, though it be not law, does it consti- where written constitutions have been viewed

tute a rule as operative as if it was a law? with so much reverence, for rejecting the This would be to overthrow in fact what was construction. But the peculiar expressions of

established in theory, and would seem, at the constitution of the United States furnish first view, an absurdity too gross to be in- additional arguments in favor of its rejection. sisted on. It shall, however, receive a more The judicial power of the United States is

| attentive consideration. extended to all cases arising under the conIt is emphatically the province and duty _ stitution. of the judicial department to say what the Could it be the intention of those who gave law is. Those who apply the rule to particu- _ this power to say that in using it the constilar cases must of necessity expound and in- tution should not be looked into? That a terpret that rule. If two laws conflict with case arising under the constitution should be cach other, the courts must decide on the op- decided _ without examining the instrument

eration of each. under which it arises?

So if a law be in opposition to the consti- This is too extravagant to be maintained. tution; if both the law and the constitution --In some cases, then, the constitution must apply to a particular case, so that the court be looked into by the judges. And if they can must either decide that case conformably to open it at all, what part of it are they forthe law, disregarding the constitution, or con- _bidden to read or to obey?

formably to the constitution, disregarding the There are many other parts of the constilaw, the court must determine which of these tution which serve to illustrate this subject. conflicting rules governs the case. This is of It is declared that “‘no tax or duty shall be

the very essence of judicial duty. laid on articles exported from any state.”

If, then, the courts are to regard the con- Suppose a duty on the export of cotton, of stitution, and the constitution is superior to tobacco, or of flour, and a suit instituted to any ordinary act of the legislature, the con- recover it, ought judgment to be rendered in stitution, and not such ordinary act, must such a case? Ought the judges to close their

ply. law?

govern the case to which they both ap- eyes on the constitution, and only see the Those, then, who controvert the principle The constitution declares “that no bill of

that the constitution is to be considered in attainder or ex post facto law shall be court as a paramount law, are reduced to the passed.” If, however, such a bill should be necessity of maintaining that courts must passed, and a person should be prosecuted close their eyes on the constitution and see under it, must the court condemn to death

only the law. those victims whom the constitution en-

This doctrine would subvert the very deavors to preserve? foundation of all written constitutions. It ‘‘No person,” says the constitution, ‘shall would declare that an act which, according be convicted of treason unless on the testito the principles and theory of our govern- mony of two witnesses to the same overt act,

ment, is entirely void, is yet, in practice, or on confession in open court.” completely obligatory. It would declare that Here the language of the constitution is if the legislature shall do what is expressly addressed especially to the courts. It preforbidden, such act, notwithstanding the ex- scribes, directly for them, a rule of evidence

press prohibition, is in reality effectual. It not to be departed from. If the legislature would be giving to the legislature a practical should change that rule, and declare one and real omnipotence with the same breath witness, or a confession out of court, suffwhich professes to restrict their powers cient for conviction, must the constitutional within narrow limits. It is prescribing limits principle yield to the legislative act?

JEFFERSON’S MESSAGE ON THE BURR CONSPIRACY 195 From these, and many other selections States.” Why does a judge swear to discharge which might be made, it is apparent that the his duties agreeably to the constitution of framers of the constitution contemplated the United States, if that constitution forms that instrument as a rule for the government no rule for his government?—if it is closed of courts, as well as of the legislature. Why upon him, and cannot be inspected by otherwise does it direct the judges to take an him? oath to support it? This oath certainly ap- If such be the real state of things, this is plies in an especial manner to their conduct worse than solemn mockery. To prescribe, or in their official character. How immoral to _ to take this oath, becomes equally a crime. impose it on them if they were to be used as It is also not entirely unworthy of observa-

the instruments, and the knowing instru- tion, that in declaring what shall be the suments, for violating what they swear to sup- preme law of the land, the constitution itself

port! is first mentioned, and not the laws of the

The oath of office, too, imposed by the United States generally, but those only which legislature, 1s completely demonstrative of shall be made in pursuance of the constituthe legislative opinion on this subject. It isin tion, have that rank. these words: “I do solemnly swear that I will Thus, the particular phraseology of the administer justice without respect to per- constitution of the United States confirms sons, and do equal right to the poor and to and strengthens the principle, supposed to the rich; and that I will faithfully and im- be essential to all written constitutions, that partially discharge all the duties incumbent a law repugnant to the constitution is void, on me as ————, according to the best of and that courts, as well as other departments, my abilities and understanding, agreeably to are bound by that instrument.

the constitution and laws of the United [Mandamus denied. ] 110. JEFFERSON’S MESSAGE ON THE BURR CONSPIRACY January 22, 1807 (Richardson, ed. Messages and Papers, Vol. I, p. 412 ff.) On November 27, 1806, Jefferson had issued a and safety of the Union, and a military exproclamation warning citizens of the Burr con- _ pedition planned by them against the terri-

etalied account o € intormation upon whic ° -

“letailed The tof th new onan a hich tories of a power in amity with the United this proclamation was issued. Burr had sur- States, with the measures I have pursued for rendered to the acting Governor of Louisiana suppressing the same... . Territory January 17, 1807, but subsequently at- Some time in the latter part of September tempted to escape, only to be apprehended and 1 received intimations that designs were in sent on to Richmond for trial on the charge of agitation in the Western country unlawful treason. Two different interpretations of the Burr and unfriendly to the peace of the Union, conspiracy are in H. Adams, History of the and that the prime mover in these was Aaron

| ess vO ne os piney An account Burr, heretofore distinguished by the favor

» Aaron 7 of his country. The grounds of these intima-

of the trialVol. is inYI, A.chs. Beveridge, Life of John being i lusi the he objects Marshall, vi-ix. For Burr, see . 6tions INCOnClusive, objects uncer-

J. Parton, Aaron Burr. tain, and the fidelity of that country known

to be firm, the only measure taken was to JANUARY 22, 1807. urge the informants to use their best en-

To the Senate and House of Representatives deavors to get further insight into the designs

of the United States: and proceedings of the suspected persons and

Agreeably to the request of the House of to communicate them to me. Representatives communicated in their reso- It was not till the latter part of October lution of the 16th instant, I proceed to state, that the objects of the conspiracy began to under the reserve therein expressed, informa- be perceived, but still so blended and intion received touching an illegal combina- volved in mystery that nothing distinct could tion of private individuals against the peace be singled out for pursuit. In this state of

196 DOCUMENTS OF AMERICAN History uncertainty . . . I thought it best to send to Mountains; the other an attack on Mexico. the scene where these things were principally A third object was provided, merely ostensiin transaction a person in whose integrity, ble, to wit, the settlement of a pretended pur-

understanding, and discretion entire confi- chase of a tract of country on the Washita dence couid be reposed, with instructions to claimed by a Baron Bastrop. This was to

investigate the plots going on,... and... serve as the pretext for all his preparations, to do on the spot whatever should be necessary an allurement for such followers as really to discover the designs of the conspirators, ar- wished to acquire settlements in that country rest their means, bring their persons to punish- and a cover under which to retreat in the ment, and to call out the force of the country event of a final discomfiture of both branches to suppress any unlawful enterprise in which of his real design.

it should be found they were engaged. By He found at once that the attachment of this time it was known that many boats were the Western country to the present Union under preparation, stores of provisions col- was not to be shaken; that its dissolution lecting, and an unusual number of suspicious could not be effected with the consent of its

characters in motion on the Ohio and its inhabitants, and that his resources were inwaters. Besides dispatching the confidential adequate as yet to effect it by force. He took

agent to that quarter, orders were at the his course then at once, determined to seize same time sent to the governors of the Or- on New Orleans, plunder the bank there, posleans and Mississippi Territories and to the sess himself of the military and naval stores, commanders of the land and naval forces and proceed on his expedition to Mexico, there to be on their guard against surprise and to this object all his means and preparaand in constant readiness to resist any enter- tions were now directed. He collected from prise which might be attempted on the ves- ll the quarters where himself or his agents sels, posts, or other objects under their care; possessed influence all the ardent, restless, and on the 8th of November instructions desperate, and disaffected persons who were were forwarded to General Wilkinson to ready for any enterprise analogous to their hasten an accommodation with the Spanish characters. He seduced good and well-meancommandant on the Sabine, and as soon as ing citizens, some by assurances that he posthat was effected to fall back with his prin- sessed the confidence of the Government and cipal force to the hither bank of the Missis- was acting under its secret patronage, a presippi for the defense of the interesting points tense which procured some credit from the on that river. By a letter received from that state of our differences with Spain, and others officer on the 25th of November, we learnt by offers of land in Bastrop’s claim on the

that a confidential agent of Aaron Burr had Washita... . been deputed to him with communications, ... surmises have been hazarded that

partly written in cipher and partly oral, ex- this enterprise is to receive aid from certain plaining his designs, exaggerating his re- foreign powers; but these surmises are withsources, and making such offers of emolument out proof or probability... . and command to engage him and the army By letters from General Wilkinson of the in his unlawful enterprise as he had flattered 14th and 18th of December, which came to himself would be successful. The General, hand two days after the date of the resolu. . . Immediately dispatched a trusty officer tion of the House of Representatives— .. .

to me with information of what had _ I received the important affidavit a copy of

passed, ... which I now communicate, with extracts of The General’s letter, . . . and some other so much of the letters as comes within the

information received a few days earlier, when scope of the resolution. By these it will be brought together developed Burr’s general de- seen that of three of the principal emissaries signs, . . . It appeared that he contemplated of Mr. Burr whom the General had caused to two distinct objects, which might be carried be apprehended, one had been liberated by on either jointly or separately, and either the habeas corpus, and two others, being those one or the other first, as circumstances should particularly employed in the endeavor to direct. One of these was the severance of the corrupt the general and army of the United

Union of these States by the Alleghany States, have been embarked by him for ports

Act to PROHIBIT THE IMPORTATION OF SLAVES 197 in the Atlantic States, probably on the con- days, the means of pursuing a sounder course sideration that an impartial trial could not of proceedings here than elsewhere, and the

be expected during the present agitations of aid of the Executive means, should the New Orleans, and that that city was not as judges have occasion to use them, render it yet a safe place for confinement. As soon as__ equally desirable for the criminals as for the these persons shall arrive they will be de- public that, being already removed from the livered to the custody of the law and left to place where they were first apprehended, the

such course of trial, both as to place and ffirst regular arrest should take place here, process, as its functionaries may direct. The and the course of proceedings receive here presence of the highest judicial authorities, its proper direction.

to be assembled at this place within a few TH: JEFFERSON. 111. ACT TO PROHIBIT THE IMPORTATION OF SLAVES March 2, 1807 (U.S. Statutes at Large, Vol. II, p. 426 ff.)

Article I, section 9 of the Constitution provided prepare any ship or vessel, In any port or

arn importation of such persons as any or place within the jurisdiction of the United e States shall think proper to admit, snall not States, nor shall cause any ship or vessel to

be probed by the Cones orf th Yes sal fom any port or place within the same ber 2, 1806 (Richardson, Vol. I, p. 405 ff.) Jef- for the purpose of procuring any negro, mu-

ferson wrote, “I congratulate you, fellow- latto, or person of colour, from any foreign

citizens, on the approach of the period at which kingdom, place, or country, to be transported you may interpose your authority constitutionally to any port or place whatsoever within the to withdraw the citizens of the United States from jurisdiction of the United States, to be held,

all further participation in those violations of sold, or disposed of as slaves, or to be held human rights which have been so long continued to service or labour: and if any ship or veson the unoffending inhabitantsofofslaves Africa.” Billsaforesaid. 4) shall beorsoshall fittedbe outcaused for theto purpose o prohibit the importation were sail s

promptly introduced into the House and the 4 0 as Senate. See W. E. B. Du Bois, Suppression of the aforesaid, every such ship or vessel, her African Slave Trade; M. S. Locke, Anti-Slavery tackle, apparel, and furniture, shall be forin America, 1619-1808; H. Wilson, Rise and Fall feited to the United States, and shall be lia-

of the Slave Power in America, Vol. I. ble to be seized, prosecuted, and condemned in any of the circuit courts or district courts,

An Act to prohibit the importation of for the district where the said ship or vessel Slaves into any port or place within the juris- may be found or seized... .

diction of the United States, from and after Sec. 4. If any citizen or citizens of the the first day of January, in the year of our United States, or any person resident within Lord one thousand eight hundred and eight. the jurisdiction of the same, shall, from and

Be it enacted, That from and after the after the first day of January, one thousand first day of January, one thousand eight hun-_ eight hundred and eight, take on board, redred and eight, it shall not be lawful to im- ceive or transport from any of the coasts or port or bring into the United States or the kingdoms of Africa, or from any other forterritories thereof from any foreign kingdom, eign kingdom, place, or country, any negro, place, or country, any negro, mulatto, or per- mulatto, or person of colour in any ship or son of colour, as a slave, or to be held to vessel, for the purpose of selling them in any

| service or labour. port or place within the jurisdiction of the Sec. 2. That no citizen of the United United States as slaves, or to be held to servStates, or any other person, shall, from and _ ice or labour, or shall be in any ways aiding

after the first day of January, in the year or abetting therein, such citizen or citizens of our Lord one thousand eight hundred and _ or person, shall severally forfeit and pay five eight, for himself, or themselves, or any other thousand dollars, one moiety thereof to the

person whatsoever, either as master, factor, use of any person or persons who shall sue or owner, build, fit, equip, load or to otherwise for and prosecute the same to effect... .

198 DOCUMENTS OF AMERICAN HISTORY Sec. 6. That if any person or persons what- same, in any port or place within the jurisdic-

soever, shall, from and after the first day of tion of the United States, contrary to the January, one thousand eight hundred and _ prohibition of the act, every such ship or eight, purchase or sell any negro, mulatto, or vessel, together with her tackle, apparel, and person, of colour, for a slave, or to be held furniture, and the goods or effects which shall to service or labour, who shall have been im- be found on board the same, shall be forported, or brought from any foreign kingdom, feited to the use of the United States, and place, or country, or from the dominions of may be seized, prosecuted, and condemned,

any foreign state, immediately adjoining to in any court of the United States, having the United States, after the last day of De- jurisdiction thereof. And it shall be lawful cember, one thousand eight hundred and for the President of the United States, and seven, knowing at the time of such purchase he is hereby authorized, should he deem it or sale, such negro, mulatto, or person of expedient, to cause any of the armed vessels colour, was so brought within the jurisdiction of the United States to be manned and emof the United States, as aforesaid, such pur- ployed to cruise on any part of the coast of

chaser and seller shall severally forfeit and the United States, or territories thereof, pay for every negro, mulatto, or person of where he may judge attempts will be made colour, so purchased or sold as aforesaid, to violate the provisions of this act, and to

eight hundred dollars... . instruct and direct the commanders of armed Sec. 7. That if any ship or vessel shall be vessels of the United States, to seize, take, found, from and after the first day of Janu- and bring into any port of the United States ary, one thousand eight hundred and eight, in all such ships or vessels, and moreover to

any river, port, bay, or harbor, or on the _ seize, take, or bring into any port of the high seas, within the jurisdictional limits of | U. S. all ships or vessel of the U.S. wheresothe United States, or hovering on the coast ever found on the high seas, contravening the thereof, having on board any negro, mulatto, provisions of this act, to be proceeded against or person of colour, for the purpose of selling according to law....

them as slaves, or with intent to land the 112. COMMERCIAL WARFARE 1806-1810 The Peace of Amiens was of short duration, and taliated with the Milan Decree of December 17 in 1803 came a renewal of the European wars declaring the British Isles in a state of blockade which soon involved the commerce of the United and that every ship searched by the British was States. In 1805 Great Britain seized and con- to be regarded as enemy property. These decrees demned the vessel Essex, engaged in trade with and counter-decrees not only bore severely upon the French West Indies: a year later Monroe re- American commerce, they also touched American ported that over 120 American vessels had been pride and honor. The effort of William Pinkney seized by the British. These depredations on neu- to conclude a satisfactory treaty with Great tral commerce were aggravated by the British Britain having failed, the United States estabpractice of impressment. Protests proving vain, - lished, December 22, 1807, an embargo. The EmCongress on April 18, 1806, passed a non- bargo Act of December 22 was supplemented by

importation act excluding many articles from acts of January 9, 1808 and March 12, 1808. importation from Great Britain. April 8, the so- The Embargo, which Jefferson fondly believed called Fox’s Blockade was established around the would bring the warring Powers to terms, proved mouths of the Elbe, Weser, Trave, etc., and May unenforceable, and it was withdrawn, March 1, 16 this blockade was extended to include all the 1809, in favor of another non-intercourse law. coast from the Elbe to Brest. Napoleon retaliated Section 11 of this act permitted the President, by with the Berlin Decree of November 21, 1806. proclamation, to re-open trade with Great Britain

Great Britain replied with the Order in Council _ or France if either of these nations ceased to of January 7, 1807 prohibiting any vessel from violate American rights. The British Minister trading with any port of France or her Allies and Erskine having given assurarices that the odious the additional Order in Council of November Orders in Council would be withdrawn, President 11 blockading all ports in Europe from which Madison, by Proclamation of April 19, 1809, the British flag was excluded. Napoleon re- permitted trade with Great Britain. The action of

;,

COMMERCIAL WARFARE » 199

Erskine was disavowed by the British Govern- II. All commerce and correspondence with ment, however, and President Madison was _ the British islands are prohibited. In conseforced, August 9, to revoke his earlier proclama- quence, letters or packets, addressed either tion and declare the non-intercourse Act in to England, to an Englishman, or in the Engforce. This Act, however, expired in 1810, and lish language, shall not pass through the postNathaniel Macon, Chairman of the Foreign Affairs Committee, introduced the bill known as office and shall be seized. Macon’s Bill Number 2 which provided that in III. Every subject of England, of whatcase either France or England should cease their ever rank and condition soever, who shall be

violations of American commerce the non- found in the countries occupied by our intercourse act should be revived against the troops, or by those of our allies, shall be other. Meantime, by the Rambouillet Decree of made a prisoner of war. March 23, 1810 Napoleon had ordered the seizure IV. All magazines, merchandise, or propof all vessels in French ports flying the flag of erty whatsoever, belonging to a subject of

| the United States. Despite this chicanery, Na- England, shall be declared lawful prize poleon’s assurances of August 5, 1810 that in V Th trade in Enclish " di , response to the proffer of the Macon Bill he " © trade in Bngis MePCNANCIse 18

would revoke all obnoxious Decrees, was accepted forbidden ; all merchandise belonging to Eng-

in good faith. By Proclamation of November 2, /and, or coming from its manufactories and the President therefore withdrew restrictions on colonies, is declared lawful prize. commerce with France, and on March 2, 1811 VI. One half of the proceeds of the conCongress passed a new non-intercourse Act di- fiscation of the merchandise and property, derected against Great Britain. Under the circum- = ¢cJared good prize by the preceding articles, stances English opinion demanded a revocation chal] be applied to indemnify the merchants

of ne Orders om Cound: Aine. Pee oments for the losses which they have suffered by mom ays ; ; the of merchant vessels by English assassinated, andcapture the revocation did not actually , y Bis

take place until June 23—too late to avoid war. CTUISETS.

The literature on commercial warfare of these VII. No vessel coming directly from Engyears is extensive. Most of the documents of the land, or from the English colonies, or having

controversy can be found in American State been there since the publication of the

Papers, Foreign Relations, Vol. III; the Con- present decree, shall be received into any gressional Debates can be found in T. H. Benton, port.

Abridgement of the Debates of Congress, 1789- VIII. Every vessel contravening the above 1856, Vols. IM, IV. Numerous documents are clause, by means of a false declaration, shall given in M. Carey, The Olive Branch, 10th ed. b ed d th 4 For political and diplomatic background see H. © seized, an the vessel and cargo confisAdams, History of the United States, Vols. 1V-VI. cated, as if they were English property.

See also, L. Sears, Jefferson and the Embargo; IX. Our tribunal of prizes at Paris is

E. Channing, The Jeffersonian System; chs. xvi- Charged with the definitive adjudication of xx; E. Channing, History of the United States, all the controversies, which by the French Vol. IV, chs. xiv-xvi; A. T. Mahan, Sea Power army, relative to the execution of the presand the War of 1812; K. C. Babcock, Rise of ent decree. Our tribunal of prizes at Milan American Nationality, chs. i-iii; J. Shouler, shall be charged with the definitive adjudicaHistory of the United States, Vol. I1; H. Adams, tion of the said controvers; hich Albert Gallatin; W. E. Nathaniel Macon; ‘thin th eS, wihca mayof biographies of Jefferson andDodd, Madison. On the arise within:the extent of our kingdom constitutionality of the Embargo sce U. S. v. Italy. Brigantine William, Hall’s American Law Journal X. The present decree shall be communi(1808) II, Federal Cases No. 16700, and C. War- cated by our minister of exterior relations, to ren, The Supreme Court, (1928 ed.) Vol. II, the kings of Spain, of Naples, of Holland, and

p. 341 ff. of Etruria, and to our allies, whose subjects, like ours, are the victims of the injustice and

1. Tne BERLIN DECREE the barbarism of the English maritime laws. November 2 1, 1806 Our finances, our police, and our post masters (State Papers and Publick Documents of the general, are charged each, in what concerns

United States, Vol. V, p. 478) him, with the execution of the present de-

Art. I. The British islands are declared in cree.

a state of blockade.

200 DocUMENTS OF AMERICAN HISTORY 2. Britis ORpER in COUNCIL neutral vessel coming from any such port,

and destined to another such port, to discon-

. January 7, 1807 tinue her voyage, and not to proceed to any (American State Papers, Foreign Relations, such port; and any vessel, after being so

Vol. HI, p. 267) warned, or any vessel coming from any such

Whereas the French Government has is- port, after a reasonable time shall have been sued certain orders, which, in violation of the afforded for receiving information of this His

usages of war, purport to prohibit the com- Majesty’s order, which shall be found promerce of all neutral nations with His Maj- ceeding to another such port, shall be capesty’s dominions, and also to prevent such tured and brought in, and together with her nations from trading with any other country cargo shall be condemned as lawful prize:

in any articles, the growth, produce, or and His Majesty’s principal Secretaries of manufacture of His Majesty’s dominions; State, the Lords Commissioners of the Adand whereas the said Government has also miralty, and the Judges of the High Court of taken upon itself to declare all His Majesty’s Admiralty, and the Courts of Vice-admiralty, dominions to be in a state of blockade, at the are to take the necessary measures herein as time when the fleets of France and her allies to them shall respectively appertain.

are themselves confined within their own ports by the superior valor and discipline of 3. BRITISH ORDER IN COUNCIL

the British navy; and whereas such attempts, November 11, 1807

on the part of the enemy, would give to His (Annals of the Congress of the United States, Majesty an unquestionable right of retalia- 10th Congress, 2d. session, 1808-1809, p. 1698 ff.) tion, and would warrant His Majesty in en- Whereas certain orders, establishing an unforcing the same prohibition of all commerce precedented system of warfare against this with France, which that power vainly hopes kingdom, and aimed especially at the deto effect against the commerce of His Maj-_ struction of its commerce and _ resources, esty’s subjects, a prohibition which the su- were, sometime since, issued by the governperiority of His Majesty’s naval forces might ment of France, by which “the British isenable him to support by actually investing lands were declared to be in a state of block-

the ports and coasts of the enemy with nu-- ade,” thereby subjecting to capture and merous squadrons and cruisers, so as to make condemnation all vessels, with their cargoes,

the entrance or approach thereto manifestly which should continue to trade with his dangerous; and whereas His Majesty, though majesty’s dominions:

unwilling to follow the example of his en- And whereas, by the same order, “all trademies by proceeding to an extremity so dis- ing in English merchandise is prohibited, and tressing to all nations not engaged in the war, every article of merchandise belonging to and carrying on their accustomed trade, yet England, or coming from her colonies, or of feels himself bound, by due regard to the her manufacture, is declared lawful prize:” just defense of the rights and interests of his And whereas the nations in alliance with people not to suffer such measures to be France, and under her control, were required taken by the enemy, without taking some to give, and have given, and do give, effect to steps on his part to restrain this violence, and such orders:

to retort upon them the evils of their own And whereas his majesty’s order of the injustice; His Majesty is thereupon pleased, 7th of January last has not answered the deby and with the advice of his privy council, sired purpose, either of compelling the enemy to order, and it is hereby ordered, that no to recall those orders, or of inducing neutral vessel shall be permitted to trade from one nations to interpose, with effect, to obtain port to another, both which ports shall belong their revocation, but, on the contrary, the to or be in the possession of France or her same have been recently enforced with inallies, or shall be so far under their control creased rigor:

as that British vessels may not trade freely And, whereas, his majesty, under these thereat; and the commanders of His Maj- circumstances, finds himself compelled to

esty’s ships of war and privateers shall be, take further measures for asserting and vin-

and are hereby, instructed to warn every dicating his just rights. ...

COMMERCIAL WARFARE 201 His majesty is therefore pleased, by and France, prohibiting all trade in any articles with the advice of his privy council, to order, the produce or manufacture of his majesty’s

and it is hereby ordered, that all the ports dominions; and the merchants of those and places of France and her allies, or of any countries have given countenance and effect

country at war with his majesty, and all to those prohibitions by accepting from perother ports or places in Europe, from which, sons, styling themselves commercial agents although not at war with his majesty, the of the enemy, resident at neutral ports, cer-

British flag is excluded, and all ports or tain documents, termed “certificates of

places in the colonies belonging to his maj- origin,” being certificates obtained at the esty’s enemies, shall, from henceforth, be ports of shipment, declaring that the articles subject to the same restrictions in point of of the cargo are not of the produce or manutrade and navigation, with the exceptions facture of his majesty’s dominions, or to that hereinafter mentioned, as if the same were _ effect: actually blockaded by his majesty’s naval And whereas this expedient has been diforces, in the most strict and rigorous man-_ rected by France, and submitted to by such ner: And it is hereby further ordered and merchants, as part of the new system of wardeclared, that all trade in articles which are fare directed against the trade of this kingof the produce or manufacture of the said dom, and as the most effectual instrument of countries or colonies, shall be deemed and accomplishing the same, and it is therefore considered to be unlawful; and that every essentially necessary to resist it: vessel trading from or to the said countries His majesty is therefore pleased, by and or colonies, together with all goods and mer- _ with the advice of his privy council, to order,

chandise on board, and all articles of the and it is hereby ordered, that if any vessel, produce or manufacture of the said countries after reasonable time shall have been afforded or colonies, shall be captured and condemned for receiving notice of this his majesty’s or-

as prize to the captors. ... der, at the port or place from which such

And the commanders of his majesty’s ships _ vessel shall have cleared out, shall be found of war and privateers, and other vessels act- carrying any such certificate or document as ing under his majesty’s commission, shall be, aforesaid, or any document referring to or and are hereby, instructed to warn every authenticating the same, such vessel shall be vessel which shall have commenced her voy- adjudged lawful prize to the captor, together age prior to any notice of this order, and with the goods laden therein, belonging to the

shall be destined to any port of France, or person or persons by whom, or on whose of her allies, or of any other country at war behalf, any such document was put on board.

with his majesty, or to any port or place And the right honorable the lords commisfrom which the British flag, as aforesaid, is sioners of his majesty’s treasury, his majexcluded, or to any colony belonging to his esty’s principal secretaries of state, the lords majesty’s enemies, and which shall not have commissioners of the admiralty, and the cleared out as is hereinbefore allowed, to dis- judges of the high court of admiralty and continue her voyage, and to proceed to some courts of vice admiralty, are to take the necport or place in this kingdom, or to Gibraltar essary measures herein as to them shall reor Malta; and any vessel which, after having spectively appertain.

been so warned, or after a reasonable time W. FAWKENER. shall have been afforded for the arrival of

information of this his majesty’s order at any 4. THE MILAN DECREE

port or place from which she sailed, or December 17, 1807

which, after having notice of this order, shall (State Papers and Publick Documents of the

be found in the prosecution of any voyage United States, Vol. VI, p. 74) contrary to the restrictions contained in this NAPOLEON, emperor of the French, king order, shall be captured, and, together with of Italy, and protector of the Rhenish conher cargo, condemned as lawful prize to the federation.

captors. Observing the measures adopted by the And whereas countries not engaged in the’ British government, on the 11th November

war have acquiesced in these orders of last, by which vessels belonging to neutral,

202 DocUMENTS OF AMERICAN HISTORY friendly, or even powers the allies of Eng- Art. IV. These measures, which are reland, are made liable, not only to be searched sorted to only in just retaliation of the barby English cruisers, but to be compulsorily barous system adopted by England, which asdetained in England, and to have a tax laid similates its legislation to that of Algiers, on them of so much per cent on the cargo, — shall cease to have any effect with respect to

to be regulated by the British legislature. all nations who shall have the firmness to Observing that by these acts the British compel the English government to respect government denationalizes ships of every na- their flag. They shall continue to be rigorously

tion in Europe, that it is not competent for in force as long as that government does not any government to detract from its own in- return to the principle of the law of nations, dependence and rights, all the sovereigns of which regulates the relations of civilized Europe having in trust the sovereignties and states in a state of war. The provisions of the independence of the flag; that if by an un- present decree shall be abrogated and null, pardonable weakness, and which in the eyes in fact, as soon as the English abide again by of posterity would be an indelible stain, if the principles of the law of nations, which such a tyranny was allowed to be established are also the principles of justice and of honinto principles, and consecrated by useage, the __ our.

English would avail themselves of it to as- All our ministers are charged with the exesert it as a right, as they have availed them- cution of the present decree, which shall be selves of the tolerance of government to inserted in the bulletin of the laws.

establish the infamous principle, that the NAPOLEON. flag of a nation does not cover goods, and

to have to their right of blockade an arbitrary 5. THE Emparco Act

extension, and which infringes on the sov- December 22, 1807

ereignty of every state; we have decreed and (U.S. Statutes at Large, Vol. I, p. 451 ff.)

do decree as follows: An Act laying an Embargo on all ships and

Art. I. Every ship, to whatever nation it vessels in the ports and harbors of the may belong, that shall have submitted to be United States. searched by an English ship, or to a voyage Be it enacted, That an embargo be, and to England, or shall have paid any tax what- hereby is laid on all ships and vessels in the soever to the English government, is thereby ports and places within the limits or jurisand for that alone, declared to be denational- diction of the United States, cleared or not ized, to have forfeited the protection of its cleared, bound to any foreign port or place; king, and to have become English property. and that no clearance be furnished to any

Art. II. Whether the ships thus dena- ship or vessel bound to such foreign port or

tionalized by the arbitrary measures of the place, except vessels under the immediate diEnglish government, enter into our ports, or rection of the President of the United States: those of our allies, or whether they fall into and that the President be authorized to give

the hands of our ships of war, or of our such instructions to the officers of the revprivateers, they are declared to be good and enue, and of the navy and revenue cutters of

lawful prize. the United States, as shall appear best Art. III. The British islands are declared adapted for carrying the same into full effect: to be in a state of blockade, both by land and Provided, that nothing herein contained shall sea. Every ship, of whatever nation, or what- be construed to prevent the departure of any soever the nature of its cargo may be, that foreign ship or vessel, either in ballast, or sails from the ports of England, or those of | with the goods, wares and merchandise on the English colonies, and of the countries oc- board of such foreign ship or vessel, when

cupied by English troops, and proceeding to notified of this act. . |

England or to the English colonies, or to Sec. 2. That during the continuance of

countries occupied by English troops, is good this act, no registered, or sea letter vessel, and lawful prize, as contrary to the present having on board goods, wares and merchandecree, and may be captured by our ships of _ dise, shall be allowed to depart from one port war, or our privateers, and adjudged to the of the United States to any other within the

captor. same, unless the master, owner, consignee or |

COMMERCIAL WARFARE 203 factor of such vessel shall first give bond, either in repairing the said vessel or in furwith one or more sureties to the collector of nishing her, her officers and crew with supthe district from which she is bound to de- plies of any kind or in any manner whatever, part, in a sum of double the value of the ves- .. . every person so offending, shall forfeit sel and cargo, that the said goods, wares, or and pay a sum not less than one hundred merchandise shall be relanded in some port dollars, nor exceeding ten thousand dollars; of the United States, dangers of the seas ex- and shall also be imprisoned for a term not cepted, which bond, and also a certificate less than one month, nor more than one year.

from the collector where the same may be Sec. 3. That from and after the twentieth

relanded, shall by the collector respectively day of May next, the entrance of the harbors be transmitted to the Secretary of the Treas- and waters of the United States and the terury. All armed vessels possessing public com-__ritories thereof be, and the same is hereby missions from any foreign power, are not to. interdicted to all ships or vessels sailing be considered as liable to the embargo laid by — under the flag of Great Britain or France, or

this act. owned in whole or in part by any citizen or subject of either. ... And if any ship or

6. THe Non-InTERcouRSE Act vessel sailing under the flag of Great Britain

March 1, 1809 or France, . . . shall after the said twentieth

(U.S. Statutes at Large, Vol. II, p. 528 ff.) day of May next, arrive cither with or with-

An Act to interdict the commercial inter- out a cargo, within the limits of the United course between the United States and States or of the territories thereof, such ship Great Britain and France, and their or vessel, together with the cargo, if any, dependencies ; and for other purposes. which may be found on board, shall be forBe it enacted, That from and after the feited, and may be seized and condemned in passing of this act, the entrance of the har- any court of the United States or the terribors and waters of the United States and of tories thereof, having competent jurisdicthe territories thereof, be, and the same is_ tion, .. . hereby interdicted to all public ships and ves- Sec. 4. That from and after the twentieth sels belonging to Great Britain or France. day of May next, it shall not be lawful to . . . Andif any public ship or vessel as afore- import into the United States or the terrisaid, not being included in the exception tories thereof, any goods, wares or merchanabove mentioned, shall enter any harbor or dise whatever, from any port or place situwaters within the jurisdiction of the United ated in Great Britain or Ireland, or in any States, or of the territories thereof, it shall of the colonies or dependencies of Great be lawful for the President of the United Britain, nor from any port or place situated States, or such other person as he shall have in France, or in any of her colonies or deempowered for that purpose, to employ such _ pendencies, nor from any port or place in the

part of the land and naval forces, or of the actual possession of either Great Britain or militia of the United States, or the terri- France. Nor shall it be lawful to import into tories thereof, as he shall deem necessary, to the United States, or the territories thereof, compel such ship or vessel to depart. from any foreign port or place whatever, any Sec. 2. That it shall not be lawful for any goods, wares or merchandise whatever, being citizen or citizens of the United States or the of the growth, produce or manufacture of territories thereof, nor for any person or per- France, or of any of her colonies or dependsons residing or being in the same, to have encies, or being of the growth, produce or any intercourse with, or to afford any aid or manufacture of Great Britain or Ireland, or supplies to any public ship or vessel as afore- of any of the colonies or dependencies of said, which shall, contrary to the provisions Great Britain, or being of the growth, prodof this act, have entered any harbor or waters uce or manufacture of any place or country within the jurisdiction of the United States in the actual possession of either France or or the territories thereof; and if any person. Great Britain. . . . shall, contrary to the provisions of this act, Sec. 11. That the President of the United have any intercourse with such ship or vessel, States be, and he hereby is authorized, in or shall afford any aid to such ship or vessel, case either France or Great Britain shall so

204 DOCUMENTS OF AMERICAN Hisrory revoke or modify her edicts, as that they the President of the United States shall deshall cease to violate the neutral commerce clare by proclamation, and if the other naof the United States, to declare the same by _ tion shall not within three months thereafter proclamation; after which the trade of the so revoke or modify her edicts in like manUnited States, suspended by this act, and by ner, then the third, fourth, fifth, sixth, sevthe [Embargo Act] and the several acts sup- enth, eighth, ninth, tenth, and eighteenth plementary thereto, may be renewed with the _ sections of the act, entituled “An act to inter-

nation so doing... . dict the commercial intercourse between the

SEC. 12. That so much of the... [Em- United States and Great Britain and

bargo Act] and of the several acts supple- France...” shall, from and after the exmentary thereto, as forbids the departure of _ piration of three months from the date of the

vessels owned by citizens of the United proclamation aforesaid, be revived and have States, and the exportation of domestic and full force and effect, so far as relates to the foreign merchandise to any foreign port or dominions, colonies, and dependencies, and place, be and the same is hereby repealed, to the articles the growth, produce or manuafter March 15, 1809, except so far as they facture of the dominions, colonies and derelate to Great Britain or France, or their pendencies of the nation thus refusing or colonies or dependencies, or places in the neglecting to revoke or modify her edicts in

actual possession of either... . the manner aforesaid. And the restrictions

SEC. 19. That this act shall continue and imposed by this act shall, from the date of be in force until the end of the next session such proclamation, cease and be discontinof Congress, and no longer; and that the act ued in relation to the nation revoking or laying an embargo on all ships and vessels in modifying her decrees in the manner aforethe ports and harbors of the United States, _ said. and the several acts supplementary thereto,

shall be, and the same are hereby repealed 8. THe RamsBouiLtet DECREE

from and after the end of the next session of March 23, 1810

Congress. (State Papers and Publick Documents of the United States, Vol. VII, p. 467-8)

7. Macon’s Bit, No. 2 NAPOLEON, &c.

May 1, 1810 Considering that the government of the

(U.S. Statutes at Large, Vol. II, p. 605-6) United States, by an act dated ist March, An Act concerning the commercial inter- 1809, which forbids the entrance of the ports, course between the United States and Great harbours, and rivers of the said States, to all Britain and France and their dependencies, French vessels, orders, 1st. That after the

and for other purposes. 20th of May following, vessels under the

BE tt enacted. That from and after the French flag, which shall arrive in the United passage of this act, no British or French States, shall be seized and confiscated, as well armed vessel shall be permitted to enter the as their cargoes; 2d. That after the same harbor or waters under the jurisdiction of epoch, no merchandise or produce, the growth the United States; ... except when they or manufacture of France or her colonies, can shall be forced in by distress .. . or when _ be imported into the said United States from charged with despatches or business from any port or place whatsoever, under the pen-

their government, or coming as a public alty of seizure, confiscation, and a fine of packet for the conveyance of letters; ... three times the value of the merchandise; Sec. 2. That all pacific intercourse with 3d. That American vessels cannot go to any any interdicted foreign armed vessels, the port of France, of her colonies, or dependofficers or crew thereof, is hereby forbid- encies: We have decreed, and do decree, what

den, ... follows:

Sec. 4. That in case either Great Britain ART. 1. All vessels navigating under the or France shall, before the third day of flag of the United States, or possessed, in March next, so revoke or modify her edicts whole or in part, by any citizen or subject of as that they shall cease to violate the neutral that power, which, counting from the 20th commerce of the United States, which fact of May, 1809, have entered or shall enter

FLETCHER V. PEcK 205 into the ports of our empire, of our colonies, tion the vessels which shall be charged with or of the countries occupied by our arms, despatches, or with commissions of the govshall be seized, and the product of the sales ernment of the said States, and who shall not

shall be deposited in the surplus fund (caisse have either cargoes or merchandise on d’amortissement. ) board. ...

There shall be excepted from this regula- NAPOLEON. 113. FLETCHER v. PECK 6 Cranch, 87 1810

Error to the U. S. circuit court of the district deeply to be deplored. How far a court of of Massachusetts. In 1795 the legislature of justice would, in any case, be competent, on Georgia passed an act for the sale of enormous proceedings instituted by the state itself, to areas of her western lands. The following year vacate a contract thus formed. and to annul

a new legislature annulled the act of 1795 on the right ‘red. under th by thi

ground that it was passed fraudulently. The cele- tents acquire » UNCeT at contract, y third brated case of Fletcher v. Peck involved two Persons having no notice of the improper major constitutional questions: the interpreta- ™eans by which it was obtained, is a question of the contract clause of the Federal tion which the court would approach with Constitution, and the power of the court to in- | much circumspection. It may well be doubted, quire into the motives and circumstances attend- how far the validity of a law depends upon

ing the passage of a legislative act. This was the motives of its framers, and how far the the first case in which the Supreme Court held particular inducements operating on mema state law void under the Constitution. See, bers the supreme sovereign power of a state

Beveridge, Marshall, Vol. III ch. x; C. H. Has- to the ¢ ; ,

kins, The Yazoo Land Companies. o the ormation of a contract by that

power, are examinable in a court of justice.

MarsHALL, C. J... . That the legisla- If the principle be conceded, that an act of

ture of Georgia, unless restrained by its own the supreme sovereign power might be deconstitution, possesses the power of dispos- clared null by a court, in consequence of the ing of the unappropriated lands within its means which procured it, still would there own limits, in such manner as its own judg- be much difficulty in saying to what extent ment shall dictate, is a proposition not to be those means must be applied to produce this controverted. The only question, then, pre- effect. Must it be direct corruption? or would sented by this demurrer, for the consideration interest or undue influence of any kind be of the court, is this, did the then constitution sufficient? Must the vitiating cause operate of the state of Georgia prohibit the legisla- on a majority? or on what number of the ture to dispose of the lands, which were the members? Would the act be null, whatever

subject of this contract, in the manner might be the wish of the nation? or would

stipulated by the contract? ... its obligation or nullity depend upon the pubIn the constitution of Georgia, adopted in lic sentiment? If the majority of the legisthe year 1789, the court can perceive no re- lature be corrupted, it may well be doubted striction on the legislative power, which in- whether it be within the province of the hibits the passage of the act of 1795. The Judiciary to control their conduct, and, if less

court cannot say that, in passing that act, than a majority act from impure motives the legislature has transcended its powers, the principle by which judicial interference and violated the constitution. In overruling would be regulated, is not clearly discerned. the demurrer, therefore, to the first plea, the | Whatever difficulties this subject might pre-

circuit court committed no error... . sent, when viewed under aspects of which it

That corruption should find its way into may be susceptible, this court can perceive the governments of our infant republics, and none in the particular pleadings now under contaminate the very source of legislation, consideration. . . . or that impure motives should contribute to The case, as made out in the pleadings, is the passage of a law, or the formation of a simply this: One individual who holds lands legislative contract, are circumstances most in the state of Georgia, under a deed cov-

206 DocUMENTS OF AMERICAN History enanting that the title of Georgia was in the competent to repeal any act which a former granvor, brings an action of covenant upon legislature was competent to pass; and that this deed and assigns as a breach that some _ one legislature cannot abridge the powers of of the members of the legislature were in- a succeeding legislature. The correctness of duced to vote in favor of the law which con- this principle, so far as respects general legis-

stituted the contract by being promised an lation, can never be controverted. But if an interest in it, and that therefore the act is a act be done under a law, a succeeding legis-

mere nullity. lature cannot undo it. The past cannot be re-

This solemn question cannot be brought called by the most absolute power. Conveythus collaterally and incidentally before the ances have been made, those conveyances court. It would be indecent in the extreme, have vested legal estates, and, if those estates upon a private contract between two individ- may be seized by the sovereign authority, uals, to enter into an inquiry respecting the _ still, that they originally vested is a fact, and corruption of the sovereign power of a state. cannot cease to be a fact. When, then, a law If the title be plainly deduced from a legis- is in its nature a contract, when absolute lative act which the legislature might con- rights have vested under that contract, a restitutionally pass, if the act be clothed with peal of the law cannot divest those rights; all the requisite forms of a law, a court, and the act of annulling them, if legitimate, sitting as a court of law, cannot sustain a is rendered so by a power applicable to the suit brought by one individual against an- case of every individual in the community. other founded on the allegation that the act It may well be doubted whether the nature is a nullity in consequence of the impure mo- of society and of the government does not tives which influenced certain members of the prescribe some limits to the legislative power;

legislature which passed the law... . and if any be prescribed, where are they to

It is not intended to speak with disrespect be found, if the property of an individual, of the legislature of Georgia, or of its acts. fairly and honestly acquired, may be seized Far from it. The question is a general ques- without compensation? To the legislature all tion, and is treated as one. For although such legislative power is granted; but the question powerful objections to a legislative grant, as whether the act of transferring the property are alleged against this, may not again exist, of an individual to the public be in the nature yet the principle, on which alone this rescind- of legislative power, is well worthy of serious

ing act is to be supported, may be applied to reflection. . . . every case to which it shall be the will of any The validity of this rescinding act, then, legislature to apply it. The principle is this: might well be doubted, were Georgia a single that a legislature may, by its own act, divest sovereign power. But Georgia cannot be the vested estate of any man whatever, for viewed as a single, unconnected, sovereign reasons which shall, by itself, be deemed suf- power, on whose legislature no other restric-

ficient. ... tions are imposed than may be found in its

In this case the legislature may have had own constitution. She is a part of a large ample proof that the original grant was ob- empire; she is a member of the American tained by practices which can never be too union; and that union has a constitution, the much reprobated, and which would have jus- supremacy of which all acknowledge, and tified its abrogation so far as respected those which imposes limits to the legislatures of to whom crime was Imputable. But the grant, the several states, which none claim a right to

when issued, conveyed an estate in fee- pass. The constitution of the United States simple to the grantees, clothed with all the declares that no state shall pass any bill of solemnities which law can bestow. This estate attainder, ex post facto law, or law impairing was transferable; and those who purchased _ the obligation of contracts.

parts of it were not stained by that guilt Does the case now under consideration which infected the original transaction. ... come within this prohibitory section of the Is the power of the legislature competent Constitution? In considering this very into the annihilation of such title, and to a_ teresting question, we immediately ask ourresumption of the property thus held? The selves what is a contract? Is a grant a conprinciple asserted is, that one legislature is tract? A contract is a compact between twa

MADISON’S WAR MESSAGE 207 or more parties, and is either executory or secured by the constitution, while an absolute executed. An executory contract is one In conveyance remained unprotected.

which a party binds himself to do, or not to If, under a fair construction of the condo, a particular thing; such was the law under _ stitution, grants are comprehended under the which the conveyance was made by the gover- term “contracts,” is a grant from the state nor. A contract executed is one in which the excluded from the operation of the provision?

object of contract is performed; and this, Is the clause to be considered as inhibiting says Blackstone, differs in nothing from a the State from impairing the obligation of grant. The contract between Georgia and the contracts between two individuals, but as expurchasers was executed by the grant. A con- cluding from that inhibition contracts made tract executed, as well as one which is exec- with itself? The words themselves contain no

utory, contains obligations binding on the such distinction. They are general, and are parties. A grant, in its own nature, amounts applicable to contracts of every description.

to an extinguishment of the right of the If contracts made with the state are to be grantor, and implies a contract not to reas- exempted from their operation, the exception sert that right. A party is, therefore, always must arise from the character of the con-

estopped by his own grant. tracting party, not from the words which are Since, then, in fact, a grant is a contract employed. .. . executed, the obligation of which still con- It is, then, the unanimous opinion of the tinues, and since the constitution uses the gen- _ court, that, in this case, the estate having eral term “contracts,” without distinguishing passed into the hands of a purchaser for a between those which are executory and those valuable consideration, without notice, the

which are executed, it must be construed to state of Georgia was restrained, either by comprehend the latter as well as the former. general principles which are common to our A law annulling conveyances between individ- free institutions, or by the particular prouals, and declaring that the grantors should visions of the Constitution of the United stand seized of their former estates, notwith- States, from passing a law whereby the esstanding those grants, would be as repugnant _ tate of the plaintiff in the premises so purto the constitution as a law discharging the chased could be constitutionally and legally

vendors of property from the obligation of impaired and rendered null and void... . executing their contracts by conveyances. It Judgment affirmed. would be strange if a contract to convey was

114. MADISON’S WAR MESSAGE June 1, 1812

(Richardson, ed. Messages and Papers, Vol. I, p. 499 ff.) Congress declared war on Great Britain July Without going back beyond the renewal in 18, 1812. On the diplomatic background of the 1803 of the war in which Great Britain is war, see H, Adams, History of the United States, engaged, and omitting unrepaired wrongs of Vols. V-VI; on the political background, J. Pratt, inferior magnitude, the conduct of her Gov-

Expansionists of 1812. It was long charged that 7? ; ; the War Hawks forced Madison to recommend a ernment presents a series of acts hostile to

declaration of war as the price for re-election; the United States as an independent and for a careful analysis of this charge, see T. C. neutral nation. Smith, “War Guilt in 1812”, Massachusetts Hist. British cruisers have been in the continued

Soc. Proceedings, Vol. LXIV, p. 319 ff. practice of violating the American flag on the great highway of nations, and of seizing and WASHINGTON, June 1, 1812. carrying off persons sailing under it, not in the To the Senate and House of Representatives exercise of a belligerent right founded on the

of the United States: | law of nations against an enemy, but of a

I communicate to Congress certain docu- municipal prerogative over British subjects. ments, being a continuation of those hereto- British jurisdiction is thus extended to neufore laid before them on the subject of our tral vessels in a situation where no laws can

affairs with Great Britain. operate but the law of nations and the laws

208 DocUMENTS OF AMERICAN HISTORY of the country to which the vessels belong, other important cases, to the unlawfulness of and a self-redress is assumed which, if British the course pursued. And to render the outsubjects were wrongfully detained and alone rage the more signal these mock blockades concerned, is that substitution of force for a have been reiterated and enforced in the face resort to the responsible sovereign which falls of official communications from the British

within the definition of war... . Government declaring as the true definition The practice, hence, is so far from affect- of a legal blockade “that particular ports ing British subjects alone that, under the pre- must be actually invested and previous warn-

text of searching for these, thousands of ing given to vessels bound to them not to American citizens, under the safeguard of _ enter.” public law and of their national flag, have Not content with these occasional expebeen torn from their country and from every- dients for laying waste our neutral trade, the thing dear to them; have been dragged on cabinet of Britain resorted at length to the board ships of war of a foreign nation and sweeping system of blockades, under the exposed, under the severities of their disci- name of orders in council, which has been pline, to be exiled to the most distant and molded and managed as might best suit its deadly climes, to risk their lives in the battles political views, its commercial jealousies, or of their oppressors, and to be the melancholy — the avidity of British cruisers. .. . instruments of taking away those of their Abandoning still more all respect for the

own brethren. neutral rights of the United States and for

Against this crying enormity, which Great its own consistency, the British Government Britain would be so prompt to avenge if com- now demands as prerequisites to a repeal of mitted against herself, the United States have its orders as they relate to the United States in vain exhausted remonstrances and expos- that a formality should be observed in the tulations, and that no proof might be wanting repeal of the French decrees nowise necessary of their conciliatory dispositions, and no _ to their termination nor exemplified by Britpretext left for a continuance of the practice, ish usage, and that the French repeal, besides the British Government was formally assured including that portion of the decrees which of the readiness of the United States to en- operates within a territorial jurisdiction, as ter into arrangements such as could not be well as that which operates on the high seas,

rejected if the recovery of British subjects against the commerce of the United States were the real and the sole object. The com- should not be a single and special repeal in

munication passed without effect. relation to the United States, but should be

British cruisers have been in the practice extended to whatever other neutral nations also of violating the rights and the peace of | unconnected with them may be affected by our coasts. They hover over and harass our’ those decrees... . entering and departing commerce. To the It has become, indeed, sufficiently certain most insulting pretensions they have added that the commerce of the United States is to the most lawless proceedings in our very har- be sacrificed, not as interfering with the bors, and have wantonly spilt American blood belligerent rights of Great Britain; not as within the sanctuary of our territorial juris- supplying the wants of her enemies, which she

diction. ... herself supplies; but as interfering with the

Under pretended blockades, without the monopoly which she covets for her own compresence of an adequate force and. some- merce and navigation. She carries on a war times without the practicability of applying against the lawful commerce of a friend that one, our commerce has been plundered in she may the better carry on a commerce with every sea, the great staples of our country an enemy—a commerce polluted by the forhave been cut off from their legitimate mar- geries and perjuries which are for the most kets, and a destructive blow aimed at our part the only passports by which it can suc-

agricultural and maritime interests. In ag- ceed... . _

gravation of these predatory measures they In reviewing the conduct of Great Britain have been considered as in force from the toward the United States our attention is dates of their notification, a retrospective ef- necessarily drawn to the warfare just renewed fect being thus added, as has been done in by the savages on one of our extensive fron-

REPORT OF HARTFORD CONVENTION 209 tiers—a warfare which is known to spare _ arbitrary edicts, and their unfortunate crews neither age nor sex and to be distinguished dispersed and lost, or forced or inveigled in by features peculiarly shocking to humanity. British ports into British fleets, whilst arguIt is difficult to account for the activity and ments are employed in support of these agcombinations which have for some time been gressions which have no foundation but in a developing themselves among tribes in con- principle equally supporting a claim to reg-

stant intercourse with British traders and ulate our external commerce in all cases garrisons without connecting their hostility whatsoever. with that influence and without recollecting We behold, in fine, on the side of Great

the authenticated examples of such inter- Britain a state of war against the United positions heretofore furnished by the officers States, and on the side of the United States

and agents of that Government. a state of peace toward Great Britain.

Such is the spectacle of injuries and indig- Whether the United States shall continue nities which have been heaped on our coun- passive under these progressive usurpations try, and such the crisis which its unexampled and these accumulating wrongs, or, opposing forbearance and conciliatory efforts have not force to force in defense of their national

been able to avert... . rights, shall commit a just cause into the Our moderation and conciliation have had hands of the Almighty Disposer of Events, no other effect than to encourage perseverance avoiding all connections which might en-

and to enlarge pretensions. We behold our tangle it in the contest or views of other seafaring citizens still the daily victims of powers, and preserving a constant readiness lawless violence, committed on the great to concur in an honorable reéstablishment common and highway of nations, even within of peace and friendship, is a solemn question sight of the country which owes them pro- which the Constitution wisely confides to the tection. We behold our vessels, freighted legislative department of the Government. In with the products of our soil and industry, recommending it to their early deliberations

or returning with the honest proceeds of J am happy in the assurance that the decithem, wrested from their lawful destinations, sion will be worthy the enlightened and paconfiscated by prize courts no longer the or- _triotic councils of a virtuous, a free, and a

gans of public law but the instruments of powerful nation... .

115. REPORT AND RESOLUTIONS OF THE HARTFORD CONVENTION January 4, 1815 (T. Dwight, History of the Hartford Convention, p. 368 ff.) The dissatisfaction of New England Federalists Cabot; H. Adams, History of the United States, with the Republican administration, with the ac- Vol VIII, ch. xi. cession of western territory, and with the War

of 1812, culminated in the Hartford Conven- . . . To investigate and explain the means tion of December 1814. The convention was at- whereby this fatal reverse has been effected

tended by delegates from Massachusetts, Con- would requir lum} di ;

necticut, Rhode Island, Vermont and New . quire a vo imnous ISCUSSION. Noth-

Hampshire. George Cabot of Massachusetts was 28 More can be attempted in this report than President of the Convention; among its mem- 2 &eneral allusion to the principal outlines of bers were H. G. Otis, N. Dane, C. Goodrich, and the policy which has produced this vicissiSamuel Ward. Cabot exercised a moderating in- tude. Among these may be enumerated—

fluence on the Convention, and the report and First —A deliberate and extensive system resolutions adopted were far from radical or for effecting a combination among certain treasonable. Commissioners went to Washington states, by exciting local jealousies and ambi-

with the Resolutions of the Convention, but tion, so as to secure to popular leaders ; | arriving just after the news of Jackson’s victory popular icaders mn one

at New Orleans and the Treaty of Ghent, section of the Union, the controul of public

abandoned their mission. On the Convention see fairs in perpetual succession. To which priTheodore Dwight, History of the Hartford Con- ™ary object most other characteristics of the vention; S. E. Morison, Harrison Gray Otis, system may be reconciled.

Vol. II, chs. xxii-xxviii; H. C. Lodge, George Secondly.—The political intolerance dis-

210 DOCUMENTS OF AMERICAN History played and avowed in excluding from office which that instrument is susceptible, and to men of unexceptionable merit, for want of propose such amendments as might render it

adherence to the executive creed. in all respects perfect, would be a task which Thirdly—The infraction of the judiciary this convention has not thought proper to authority and rights, by depriving judges of assume. They have confined their attention their offices in violation of the constitution. to such as experience has demonstrated to be Fourthly.—The abolition of existing taxes, essential, and even among these, some are requisite to prepare the country for those considered entitled to a more serious attenchanges to which nations are always exposed, tion than others. They are suggested without with a view to the acquisition of popular any intentional disrespect to other states, and

favour. are meant to be such as all shall find an inFifthly—The influence of patronage in the terest in promoting. Their object is to

distribution of offices, which in these states strengthen, and if possible to perpetuate, the has been almost invariably made among men _ union of the states, by removing the grounds the least entitled to such distinction, and who of existing jealousies, and providing for a have sold themselves as ready instruments for fair and equal representation, and a limita-

distracting public opinion, and encouraging tion of powers, which have been misadministration to hold in contempt the used. ... [There follows an analysis of the wishes and remonstrances of a people thus proposed amendments. |

apparently divided. THEREFORE RESOLVED,

Sixthly.—The admission of new states into That it be and hereby is recommended to the Union formed at pleasure in the western the legislatures of the several states repreregion, has destroyed the balance of power _ sented in this Convention, to adopt all such which existed among the original States, and measures as may be necessary effectually to

deeply affected their interest. protect the citizens of said states from the

Seventhly.—The easy admission of nat- operation and effects of all acts which have uralized foreigners, to places of trust, honour been or may be passed by the Congress of

or profit, operating as an inducement to the the United States, which shall contain malcontent subjects of the old world to come provisions, subjecting the militia or other citto these States, in quest of executive patron- izens to forcible drafts, conscriptions, or im-

age, and to repay it by an abject devotion to pressments, not authorised by the constitu- |

executive measures. tion of the United States.

Fighthly.—Hostility to Great Britain, and Resolved, That it be and hereby is recompartiality to the late government of France, mended to the said Legislatures, to authorize adopted as coincident with popular preju- an immediate and earnest application to be

dice, and subservient to the main object, made to the government of the United

party power. Connected with these must be States, requesting their consent to some ranked erroneous and distorted estimates of arrangement, whereby the said states may, the power and resources of those nations, of | separately or in concert, he empowered to | the probable results of their controversies, assume upon themselves the defence of their and of our political relations to them respec- territory against the enemy; and a reasonable

tively. portion of the taxes, collected within said Lastly and principally.—A visionary and States, may be paid into the respective

superficial theory in regard to commerce, ac- treasuries thereof, and appropriated to the companied by a real hatred but a feigned re- payment of the balance due said states, and

gard to its interests, and a ruinous persever- to the future defence of the same. The

ance in efforts to render 1t an instrument of amount so paid into the said treasuries to be

coercion and war. credited, and the disbursements made as But it 1s not conceivable that the obliquity aforesaid to be charged to the United States.

of any administration could, in so short a Resolved, That it be, and hereby is, recomperiod, have so nearly consummated the mended to the legislatures of the aforesaid work of national ruin, unless favoured by de- states, to pass laws (where it has not already

fects in the constitution. been done) authorizing the governors or

To enumerate all the improvements of commanders-in-chief of their militia to make

MADISON’S VETO OF BONUS BILL 211 detachments from the same, or to form any embargo on the ships or vessels of the voluntary corps, as shall be most convenient citizens of the United States, in the ports or and conformable to their constitutions, and harbours thereof, for more than sixty days. to cause the same to be well armed, equipped, Fourth. Congress shall not have power,

and disciplined, and held in readiness for without the concurrence of two thirds of service; and upon the request of the gover- both houses, to interdict the commercial innor of either of the other states to employ tercourse between the United States and any the whole of such detachment or corps, as foreign nation, or the dependencies thereof.

well as the regular forces of the state, or Fifth. Congress shall not make or declare such part thereof as may be required and war, or authorize acts of hostility against can be spared consistently with the safety of any foreign nation, without the concurrence the state, in assisting the state, making such _ of two thirds of both houses, except such acts request to repel any invasion thereof which of hostility be in defence of the territories of shall be made or attempted by the public the United States when actually invaded.

enemy. Sixth. No person who shall hereafter be

Resolved, That the following amendments naturalized, shall be eligible as a member of of the constitution of the United States be the senate or house of representatives of the recommended to the states represented as United States, nor capable of holding any aforesaid, to be proposed by them for adop- civil office under the authority of the United

tion by the state legislatures, and in such States. cases as may be deemed expedient by a con- Seventh. The same person shall not be vention chosen by the people of each state. elected president of the United States a secAnd it is further recommended, that the ond time; nor shall the president be elected

said states shall persevere in their efforts from the same state two terms in succes-

to obtain such amendments, until the same _ sion.

shall be effected. Resolved, That if the application of these First. Representatives and direct taxes states to the government of the United

shall be apportioned among the several states States, recommended in a foregoing resoluwhich may be included within this Union, ac- tion, should be unsuccessful and peace should cording to their respective numbers of free not be concluded, and the defence of these persons, including those bound to serve for states should be neglected, as it has since the

a term of years, and excluding Indians not commencement of the war, it will, in the

taxed, and all other persons. opinion of this convention, be expedient for Second. No new state shall be admitted the legislatures of the several states to apinto the Union by Congress, in virtue of the point delegates to another convention, to power granted by the constitution, without meet at Boston ... with such powers and the concurrence of two thirds of both houses. instructions as the exigency of a crisis so Third. Congress shall not have power to lay momentous may require.

116. MADISON’S VETO OF BONUS BILL March 3, 1817 (Richardson, ed. Messages and Papers, Vol. I, p. 584-5) In December 1816 Calhoun introduced a bill to Having considered the bill this day preprovide for setting aside the Bank bonus of sented to me entitled “An act to set apart $1,500,000 as a permanent fund for internal im- and pledge certain funds for internal improvements. The bill passec Congress February, ” ; 1817; Madison’s veto was his last official act. provements, and which set s apart and See, H. Adams, History of the United States, pledges funds “for constructing roads and

Vol. IX, p. 148 ff.; P. J. Treat, The National nals, and improving the navigation of

Land System. water courses, in order to facilitate, promote,

| and provisions and give security to internal commerce among

Marcu 3, 1817. the several States, and to render more easy To the House of Representatives of the and less expensive the means and sions

United States: for the common defense,” I am constrained

212 DOCUMENTS OF AMERICAN HIsToRY by the insuperable difficulty I feel in recon- of the United States from its participation ciling the bill with the Constitution of the in guarding the boundary between the legisUnited States to return it with that objection lative powers of the General and the State to the House of Representatives, in which Governments, inasmuch as questions relat-

It originated. ing to the general welfare, being questions of The legislative powers vested in Congress policy and expediency, are unsusceptible of are specified and enumerated in the eighth judicial cognizance and decision. section of the first article of the Constitution, A restriction of the power “‘to provide for and it does not appear that the power pro- the common defense and general welfare” to posed to be exercised by the bill is among cases which are to be provided for by the

the enumerated powers, or that it falls by expenditure of money would still leave

any just interpretation within the power to within the legislative power of Congress all make laws necessary and proper for carry- the great and most important measures of ing into execution those or other powers Government, money being the ordinary and vested by the Constitution in the Govern- necessary means of carrying them into exe-

ment of the United States. cution.

“The power to regulate commerce among If a general power to construct roads and the several States” can not include a power canals, and to improve the navigation of to construct roads and canals, and to improve water courses, with the train of powers incithe navigation of water courses in order to dent thereto, be not possessed by Congress,

facilitate, promote, and secure such a com- the assent of the States in the mode promerce without a latitude of construction de- vided in the bill can not confer the power. parting from the ordinary import of the terms The only cases in which the consent and ces-

strengthened by the known inconveniences sion of particular States can extend the which doubtless led to the grant of this re- power of Congress are those specified and

medial power to Congress. provided for in the Constitution.

To refer the power in question to the I am not unaware of the great importance

clause “to provide for the common defense of roads and canals and the improved naviand general welfare’ would be contrary to gation of water courses, and that a power in the established and consistent rules cf inter- the National Legislature to provide for them pretation, as rendering the special and care- might be exercised with signal advantage to ful enumeration of powers which follow the the general prosperity. But seeing that such clause nugatory and improper. Such a view a power is not expressly given by the Conof the Constitution would have the effect of stitution, and believing that it can not be giving to Congress a general power of legis- deduced from any part of it without an inlation instead of the defined and limited one admissible latitude of construction and a hitherto understood to belong to them, the reliance on insufficient precedents; believing terms “common defense and general wel- also that the permanent success of the Confare” embracing every object and act within stitution depends on a definite partition of the purview of a legislative trust. It would powers between the General and the State have the effect of subjecting both the Con- Governments, and that no adequate landstitution and laws of the several States in all marks would be left by the constructive excases not specifically exempted to be super- tension of the powers of Congress as proposed seded by laws of Congress, it being expressly in the bill, I have no option but to withhold declared “that the Constitution of the United my signature from it, and to cherishing the States and laws made in pursuance thereof hope that its beneficial objects may be atshall be the supreme law of the land, and the — tained by a resort for the necessary powers judges of every State shall be bound thereby, to the same wisdom and virtue in the nation anything in the constitution or laws of any which establisned the Constitution in its acState to the contrary notwithstanding.” Such tual form and providently marked out in the c. view of the Constitution, finally, would have instrument itself a safe and practicable mode the effect of excluding the judicial authority of improving it as experience might suggest.

M’Cuttocyu v. MARYLAND 213 117. THE RUSH-BAGOT AGREEMENT April 28, 1818 (Malloy, ed. Treaties, Conventions, etc., Vol. 1, p. 628 ff.) This famous agreement neutralized the waters On the upper lakes, to two vessels, not exof the Great Lakes and provided for an unforti- ceeding like burden each, and armed with like

fied frontier between the United States and force Canada. See, J. M. Callahan, “Neutrality of the On the waters of lake Champlain, to one American lakes and the Anglo-American Rela~ 5.61 not exceeding like burden, and armed with hke force.

tions” Johns Hopkins U. Studies, Ser. XVI. ; ;

ARRANGEMENT All other armed vessels on these lakes shall BETWEEN, the United States and Great Brit- be forthwith dismantled, and no other vesain, between Richard Rush, Esq., acting — sels of war shall be there built or armed.

as Secretary of the Department of State, If either party should hereafter be desirous and Charles Bagot, His Britannic Majesty’s of annulling this stipulation, and should give

Envoy Extraordinary, &c. notice to that effect to the other party, it The naval force to be maintained upon the — shall cease to be binding after the expiraAmerican lakes, by his majesty and the gov- tion of six months from the date of such noernment of the United States, shall hence- _ tice. forth be confined to the following vessels on The naval force so to be limited shall be

each side; that is— restricted to such services as will, in no reOn lake Ontario, to one vessel not exceed- spect, interfere with the proper duties of the ing one hundred tons burden, and armed with armed vessels of the other party. one eighteen pound cannon.

118. M’CULLOCH v. MARYLAND 4 Wheaton, 316 1819

Error to the Court of Appeals of Maryland. In It has been truly said, that this can scarcely 1818 Maryland passed an act imposing a tax upon be considered as an open question, entirely the notes of all banks not chartered by the State. unprejudiced by the former proceedings of M’Culloch, cashier of the branch Bank of the the nation respecting it. The principle now

United at was Baltimore, refused to pay wasatintroduced tax, andStates action brought against himthe by contested the . . uced a very caraty atl pe ;

state of Maryland. Two questions were involved riod of our history, has been recognized by in this case: did Congress have the right to in- ™any successive legislatures, and has been corporate a bank, and was a state tax upon the acted upon by the judicial department, in bank constitutional. In his consideration of the cases of peculiar delicacy, as a law of unfirst of these questions, Marshall relied to a large doubted obligation. . . . extent upon Hamilton’s argument on the con- In discussing this question, the counsel for stitutionality of the bank, see Doc. No. 93. This the State of Maryland have deemed it of was one of the most notable of Marshall’s opin- some importance, in the construction of the struing the powers of the National Government. constitution, to consider that instrument not See, A. Beveridge, Marshall, Vol. IV, p. 282 ff.; 9S emanating from the people, but as the act C. Warren, The Supreme Court, (1928 ed.) Vol.I, Of Sovereign and independent States. The ch. xii. This decision evoked a thorough and powers of the general government, it has been powerful criticism from Judge Spencer Roane said, are delegated by the States, who alone of Virginia: the articles have been reprinted in are truly sovereign; and must be exercised

ions, and one of the most important in con- ae ; :

the John P. Branch Historical Papers, 1905. in subordination to the States, who alone possess supreme dominion.

MarsHALL, C. J... . The first question It would be difficult to sustain this prop-

made in this cause is, has Congress power to osition. The convention which framed the

incorporate a bankr constitution was, indeed, elected by the State

214 DocUMENTS oF AMERICAN History legislatures. But the instrument, when it that it can exercise only the powers granted came from their hands, was a mere proposal, to it, would seem too apparent to have rewithout obligation, or pretensions to it. It was quired to be enforced by all those arguments reported to the then existing Congress of the which its enlightened friends, while it was United States, with a request that it might depending before the people, found it neces“be submitted to a convention of Delegates, sary to urge. That principle is now univerchosen in each State, by the people thereof, sally admitted. But the question respecting under the recommendation of its legislature, the extent of the powers actually granted, is for their assent and ratification.” This mode perpetually arising, and will probably conof proceeding was adopted; and by the Con- tinue to arise, as long as our system shall vention, by Congress, and by the State Legis- _ exist. In discussing these questions, the conlatures, the instrument was submitted to the flicting powers of the State and general govpeople. They acted upon it, in the only man- ernments must be brought into view, and the ner in which they can act safely, effectively, supremacy of their respective laws, when they and wisely, on such a subject, by assembling are in opposition, must be settled. in Convention. It is true, they assembled in If any one proposition could command the their several States; and where else should universal assent of mankind, we might expect they have assembled? No political dreamer it would be this: that the government of the was ever wild enough to think of breaking Union, though limited in its powers, is su-

down the lines which separate the States, and preme within its sphere of. action. This | of compounding the American people into would seem to result necessarily from its na- , one common mass. Of consequence, when ture. It is the government of all; its powers

they act, they act in their States. But the are delegated by all; it represents all, and measures they adopt do not, on that account acts for all. Though any one State may be cease to be the measures of the people them- willing to control its operations, no State is

selves, or become the measures of the state willing to allow others to control them. The :

governments. nation, on those subjects on which it can act,

From these Conventions the constitution must necessarily bind its component parts. derives its whole authority. The government But this question is not left to mere reason: proceeds directly from the people; is “or- the people have, in express terms, decided it, dained and established” in the name of the _ by saying, “this constitution, and the laws of people; and is declared to be ordained, “in the United States, which shall be made in order to form a more perfect union, establish pursuance thereof,” “shall be the supreme justice, insure domestic tranquillity, and se- law of the land,” and by requiring that the cure the blessings of liberty to themselves members of the State legislatures, and the and to their posterity.” The assent of the officers of the executive and judicial departStates, in their sovereign capacity, is implied ments of the States, shall take the oath of in calling a Convention, and thus submitting fidelity to it. that instrument to the people. But the people The government of the United States, then, were at perfect liberty to accept or reject it; though limited in its powers, 1s supreme; and

and their act was final. It required not the its laws, when made in pursuance of the affirmance, and could not be negatived, by constitution, form the supreme law of the the State governments. The constitution, land, “anything in the constitution or laws when thus adopted, was of complete obliga- of any State, to the contrary, notwithstandtion, and bound the State sovereignties. ... ing.” .. . The government of the Union, then Among the enumerated powers, we do not (whatever may be the influence of this fact find that of establishing a bank or creating a on the case), is emphatically and truly a gov- corporation. But there is no phrase in the inernment of the people. In form and in sub- _ strument which, like the articles of confedstance it emanates from them, its powers are eration, excludes incidental or implied pow-

granted by them, and are to be exercised di- ers; and which requires that everything rectly on them, and for their benefit. granted shall be expressly and minutely de-

This government is acknowledged by all to scribed. Even the 10th amendment, which be one of enumerated powers. The principle, was framed for the purpose of quieting the

M’CuttocH V. MARYLAND 215 excessive jealousies which had been excited, reason, be contended, that a government, omits the word “expressly,” and declares intrusted with such ample powers, on the due only that the powers “not delegated to the execution of which the happiness and prosUnited States, nor prohibited to the States, perity of the nation so vitally depends, must are reserved to the States or to the people;” also be intrusted with ample means for their thus leaving the question, whether the par- execution. The power being given, it Js the ticular power which may become the subject interest of the nation to facilitate its execuof contest, has been delegated to the one tion. It can never be their interest, and cangovernment, or prohibited to the other, to not be presumed to have been their intention, depend on a fair construction of the whole to clog and embarrass its execution by with-

instrument. The men who drew and adopted holding the most appropriate means. this amendment, had experienced the em- Throughout this vast republic, from the St. barrassments resulting from the insertion of Croix to the Gulph of Mexico, from the this word in the articles of confederation, Atlantic to the Pacific, revenue is to be coland probably omitted it to avoid those em- lected and expended, armies are to be barrassments. A constitution, to contain an marched and supported. The exigencies of

accurate detail of all the subdivisions of the nation may require, that the treasure which its great powers will admit, and of all raised in the north should be transported to the means by which they may be carried into the south, ¢/at raised in the east conveyed to execution, would partake of the prolixity of the west, or that this order should be rea legal code, and could scarcely be embraced versed. Is that construction of the constituby the human mind, It would probably never tion to be preferred which wouid render these

be understood by the public. Its nature, operations difficult, hazardous, and expentherefore, requires that only its great out- sive? Can we adopt that construction (unless lines should be marked, its important objects the words imperiously require it) which designated, and the minor ingredients which would impute to the framers of that instrucompose those objects be deduced from the ment, when granting these powers for the nature of the objects themselves. That this public good, the intention of impeding their idea was entertained by the framers of the exercise by withholding a choice of means? American constitution, is not only to be in- If, indeed, such be the mandate of the conferred from the nature of the instrument, but stitution, we have only to obey; but that from the language. Why else were some of instrument does not profess to enumerate the the limitations, found in the 9th section of | means by which the powers it confers may the first article, introduced? It is also, in be executed; nor does it prohibit the creation

some degree, warranted by their having of a corporation, if the existence of such a omitted to use any restrictive term which being be essential to the beneficial exercise might prevent its receiving a fair and just of those powers. It is, then, the subject of interpretation. In considering this question, fair inquiry, how far such means may be emthen, we must never forget, that it is @ con- ployed.

stitution we are expounding. It is not denied that the powers given to Although, among the enumerated powers of the government imply the ordinary means government, we do not find the word “bank,” of execution. That, for example, of raising or “incorporation,” we find the great powers revenue and applying it to national purposes, to lay and collect taxes; to borrow money; to is admitted to imply the power of conveying regulate commerce; to declare and conduct money from place to place, as the exigencies a war; and to raise and support armies and of the nation may require, and of employing navies. The sword and the purse, all the ex- the usual means of conveyance. But it is deternal relations, and no inconsiderable por- nied that the government has its choice of tion of the industry of the nation, are in- means, or that it may employ the most contrusted to its government. It can never be venient means, if to employ them it be neces-

pretended that these vast powers draw after sary to erect a corporation. ... them others of inferior importance, merely The government which has a right to do because they are inferior. Such an idea can an act, and has imposed on it the duty of never be advanced. But it may, with great performing that act, must, according to the

216 DOCUMENTS OF AMERICAN History dictates of reason, be allowed to select the of an incorporation, but a corporation is means; and those who contend that it may created to administer the charity; no seminot select any appropriate means, that one nary of learning is instituted in order to be particular mode of effecting the object is ex- incorporated, but the corporate character is cepted, take upon themselves the burden of conferred to subserve the purposes of educa-

establishing that exception. tion. No city was ever built with the sole

The creation of a corporation, it is said, object of being incorporated, but is incorappertains to sovereignty. This is admitted. porated as affording the best means of being But to what portion of sovereignty does it well governed. The power of creating a corappertain? Does it belong to one more than poration is never used for its own sake, but to anotherr In America, the powers of sov- for the purpose of effecting something else. ereignty are divided between the government No sufficient reason is, therefore, perceived, of the Union, and those of the States. They why it may not pass as incidental to those are each sovereign, with respect to the objects powers which are expressly given, if it be a committed to it, and neither sovereign with direct mode of executing them. respect to the objects committed to the other. But the constitution of the United States We cannot comprehend that train of reason- has not left the right of Congress to employ ing which would maintain, that the extent of the necessary means, for the execution of power granted by the people is to be ascer- the powers conferred on the government, to tained, not by the nature and terms of the general reasoning. To its enumeration of powgrant, but by its date. Some State constitu- ers is added that of making ‘“‘all laws which tions were formed before, some since that of | shall be necessary and proper, for carrying the United States. We cannot believe that into execution the foregoing powers, and all their relation to each other is in any degree other powers vested by this constitution, in dependent upon this circumstance. Their re- the government of the United States, or in spective powers must, we think, be precisely any department thereof.”

the same, as if they had been formed at the The counsel for the State of Maryland same time. Had they been formed at the have urged various arguments, to prove that same time, and had the people conferred on _ this clause, though in terms a grant of power, the general government the power contained is not so in effect; but is really restrictive of

in the constitution, and on the States the the general right, which might otherwise be whole residuum of power, would it have been implied, of selecting means of executing the

asserted that the government of the Union enumerated powers... . was not sovereign, with respect to those ob- But the argument on which most reliance jects which were entrusted to it, in relation _ is placed, is drawn from the peculiar language to which its laws were declared to be su-_ of this clause. Congress is not empowered by preme? If this could not have been asserted, it to make all laws, which may have relation

we cannot well comprehend the process of to the powers conferred on the government, reasoning which maintains, that a power ap- but such only as may be “necessary and pertaining to sovereignty cannot be con- proper” for carrying them into execution. nected with that vast portion of it which is The word “necessary” is considered as congranted to the general government, so far as trolling the whole sentence, and as limiting it is calculated to subserve the legitimate ob- the right to pass laws for the execution of the jects of that government. The power of cre- granted powers, to such as are indispensable, ating a corporation, though appertaining to and without which the power would be nugasovereignty, is not, like the power of making tory. That it excludes the choice of means, war, or levying taxes, or of regulating com- and leaves to Congress, in each case, that merce, a great substantive and independent only which is most direct and simple. power, which cannot be implied as incidental Is it true, that this is the sense in which to other powers, or used as a means of exe- the word “necessary” is always used? Does cuting them. It is never the end for which it always import an absolute physical necesother powers are exercised, but a means by _ sity, so strong, that one thing, to which anwhich other objects are accomplished. No other may be termed necessary cannot exist contributions are made to charity for the sake without that other? We think it does not.

M’CuLttocH v. MARYLAND 217 If reference be had to its use, in the common the properties of a legal code. It would have affairs of the world, or in approved authors, been an unwise attempt to provide, by imwe find that it frequently imports no more mutable rules, for exigencies which, if forethan that one thing is convenient, or useful, seen at all, must have been seen dimly, and or essential to another. To employ the means ___ which can be best provided for as they occur.

necessary to an end, is generally understood To have declared that the best means shall as employing any means calculated to pro- not be used, but those alone without which duce the end, and not as being confined to the power given would be nugatory, would those single means, without which the end have been to deprive the legislature of the would be entirely unattainable. Such is the capacity to avail itself of experience, to excharacter of human language, that no word ercise its reason, and to accommodate its conveys to the mind, in all situations one legislation to circumstances. . . . single definite idea; and nothing is more com- This clause, as construed by the State of mon than to use words in a figurative sense. Maryland, would abridge and almost an-

Almost all compositions contain words, nihilate this useful and necessary right of which, taken in their rigorous sense, would the legislature to select its means. That this convey a meaning different from that which could not be intended is, we should think, is obviously intended. It is essential to just had it not been already controverted, too apconstruction, that many words which import parent for controversy... . something excessive, should be understood in The result of the most careful and attena more mitigated sense—in that sense which tive consideration bestowed upon this clause common usage justifies. The word “neces- is, that if it does not enlarge, it cannot be sary” is of this description. It has not a fixed construed to restrain the powers of Congress, character peculiar to itself. It admits of all or to impair the right of the legislature to degrees of comparison; and is often con- exercise its best judgment in the selection of nected with other words, which increase or measures to carry into execution the constidiminish the impression the mind receives of tutional powers of the government. If no the urgency it imports. A thing may be neces- other motive for its insertion can be sugsary, very necessary, absolutely or indispensa- _ gested, a sufficient one is found in the desire bly necessary. To no mind would the same idea __to remove all doubts respecting the right to

be conveyed, by these several phrases. ... legislate on that vast mass of incidental This word, then, like others, is used in various powers which must be involved in the consti-

senses; and, in its construction, the subject, tution, if that instrument be not a splendid the context, the intention of the person using _ bauble.

them, are all to be taken into view. We admit, as all must admit, that the

Let this be done in the case under con- powers of the government are limited, and sideration. The subject is the execution of that its limits are not to be transcended. But those great powers on which the welfare of a we think the sound construction of the connation essentially depends. It must have _ stitution must allow to the national legisla-

been the intention of those who gave these ture that discretion, with respect to the powers, to insure, as far as human prudence means by which the powers it confers are to could insure, their beneficial execution. This be carried into execution, which will enable could not be done by confining the choice of | that body to perform the high duties assigned means to such narrow limits as not to leave’ to it, in the manner most beneficial to the

it in the power of Congress to adopt any people. Let the end be legitimate, let it be which might be appropriate, and which were within the scope of the constitution, and all conducive to the end. This provision is made means which are appropriate, which are in a constitution intended to endure for ages plainly adapted to that end, which are not

to come, and, consequently, to be adapted prohibited, but consist with the letter and to the various crises of human affairs. To spirit of the constitution, are constituhave prescribed the means by which govern- tional... . ment should, in all future time, execute its If a corporation may be employed indispowers, would have been to change, entirely, criminately with other means to carry into the character of the instrument, and give it execution the powers of the government, no

218 DOCUMENTS OF AMERICAN History particular reason can be assigned for exclud- that its capacity to withdraw any subiect ing the use of a bank, if required for its fiscal from the action of even this power, is adoperations. To use one, must be within the mitted. The States are expressly forbidden to discretion of Congress, if it be an appropriate lay any duties on Imports or exports, except mode of executing the powers of government. what may be absolutely necessary for exeThat it is a convenient, a useful, and essen- cuting their inspection laws. If the obligation tial instrument in the prosecution of its fiscal of this prohibition must be conceded—if it operations, is not now a subject of con- may restrain a state from the exercise of its

troversy. ... taxing power on imports and exports, the But were its necessity less apparent, none same paramount character would seem to can deny its being an appropriate measure; restrain, as it certainly may restrain, a state and if it is, the degree of its necessity as has from such other exercise of this power, as is been very justly observed, is to be discussed in its nature incompatible with, and repugin another place. Should Congress, in the exe- nant to, the constitutional laws of the Union.

cution of its powers, adopt measures which A law, absolutely repugnant to another, as are prohibited by the constitution; or should — entirely repeals that other as if express terms Congress, under the pretext of executing its of repeal were used.

powers, pass laws for the accomplishment of On this ground the counsel for the bank objects not intrusted to the government, it place its claim to be exempted from the power would become the painful duty of this of a State to tax its operations. There is no tribunal, should a case requiring such a de- express provision for the case, but the claim cision come before it, to say that such an act has been sustained on a principle which so was not the law of the land. But where the entirely pervades the constitution, is so inlaw is not prohibited, and is really calculated termixed with the materials which compose

to effect any of the objects intrusted to the it, so interwoven with its web, so blended government, to undertake here to inquire’ with its texture, as to be incapable of being into the degree of its necessity, would be to separated from it, without rending it into pass the line which circumscribes the ju- — shreds. dicial department, and to tread on legislative This great principle is, that the constituground. This court disclaims all pretensions tion and the laws made in pursuance thereof

to such a power... . are supreme; that they control the constitu-

After the most deliberate consideration, it tion and laws of the respective States, and is the unanimous and decided opinion of this cannot be controlled by them. From this, court, that the act to incorporate the Bank which may be almost termed an axiom, other of the United States is a law made in pursu-__ propositions are deduced as corollaries, on ance of the constitution, and is a part of the _ the truth or error of which, and on their ap-

supreme law of the land... . plication to this case, the cause has been sup-

It being the opinion of the Court, that the posed to depend. These are, 1. That a power act incorporating the bank is constitutional; to create implies a power to preserve. 2. That and that the power of establishing a branch a power to destroy, if wielded by a different in the State of Maryland might be properly hand, is hostile to, and incompatible with, exercised by the bank itself, we proceed to these powers to create and preserve. 3. That

inquire— where this repugnancy exists, that authority 2. Whether the State of Maryland may, which is supreme must control, not yield to without violating the constitution, tax that that over which it is supreme... .

branch? The power of Congress to create, and of

That the power of taxation is one of vital course to continue, the bank, was the subimportance; that it is retained by the States; ject of the preceding part of this opinion; that it is not abridged by the grant of a and is no longer to be considered as quessimilar power to the government of the _ tionable. Union; that it is to be concurrently exer- That the power of taxing it by the States cised by the two governments: are truths may be exercised so as to destroy it, is too which have never been denied. But, such is obvious to be denied. But taxation is said to the paramount character of the constitution, be an absolute power, which acknowledges

M’CurttocH v. MARYLAND 219 no other limits than those expressly pre- tution, and the laws made in pursuance scribed in the constitution, and like sovereign thereof, to be supreme; but this principle power of every other description, is trusted would transfer the supremacy, in fact, to the

to the discretion of those who use it... . States.

The argument on the part of the State of If the States may tax one instrument, emMaryland, is, not that the states may di- ployed by the government in the execution of rectly resist a law of Congress, but that they its powers, they may tax any and every other may exercise their acknowledged powers instrument. They may tax the mail; they

upon it, and that the. Constitution leaves may tax the mint; they may tax patent them this right in the confidence that they rights; they may tax the papers of the cus-

will not abuse it... . tom-house; they may tax judicial process; ... That the power to tax involves the they may tax all the means employed by the

power to destroy; that the power to destroy government, to an excess which would defeat may defeat and render useless the power to all the ends of government. This was not in-

create; that there is a plain repugnance, in tended by the American people. They did conferring on one government a power to not design to make their government decontrol the constitutional measures of an- pendent on the States... . other, which other, with respect to those very The question is, in truth, a question of sumeasures, is declared to be supreme over premacy; and if the right of the States to that which exerts the control, are propositions tax the means employed by the general gov-

not to be denied. But all inconsistencies are ernment be conceded, the declaration that to be reconciled by the magic of the word the constitution, and the laws made in purCoNFIDENCE. Taxation, it is said, does not suance thereof, shall be the supreme law of necessarily and unavoidably destroy. To carry the land, is empty and unmeaning declama-

it to the excess of destruction would be an_ tion... . abuse, to presume which, would banish that It has also been insisted, that, as the power confidence which is essential to all govern- of taxation in the general and State govern-

ment. ments is acknowledged to be concurrent, But is this a case of confidence? Would every argument which would sustain the the people of any one State trust those of right of the general government to tax banks another with a power to control the most chartered by the States, will equally sustain insignificant operations of their State govern- the right of the States to tax banks chartered ment? We know they would not. Why, then, by the general government.

should we suppose that the people of any one But the two cases are not on the same State should be willing to trust those of an- reason. The people of all the States have other with a power to control the operations created the general government, and have of a government to which they have con- conferred upon it the general power of taxafided their most important and most valuable tion. The people of all the States, and the interests? In the legislature of the Union States themselves, are represented in Conalone, are all represented. The legislature of gress, and, by their representatives, exercise the Union alone, therefore, can be trusted by this power. When they tax the chartered in-

the people with the power of controlling stitutions of the States, they tax their conmeasures which concern all, in the confidence _ stitutents; and these taxes must be uniform.

that it will not be abused. This, then, is not But when a State taxes the operations of the a case of confidence, and we must consider it government of the United States, it acts upon

as it really is. institutions created, not by their own conIf we apply the principle for which the _ stituents, but by people over whom they State of Maryland contends, to the constitu- claim no control. It acts upon the measures tion generally, we shall find it capable of of a government created by others as well as changing totally the character of that instru- themselves, for the benefit of others in comment. We shall find it capable of arresting mon with themselves. The difference is that all the measures of the government, and of which always exists, and always must exist, prostrating it at the foot of the states. The between the action of the whole on a part, American people have declared their consti- and the action of a part on the whole—be-

220 DocUMENTS OF AMERICAN HIsTORY tween the laws of a government declared to Congress to carry into execution the powers be supreme, and those of a government vested in the general government. This is, we which, when in opposition to those laws, think, the unavoidable consequence of that

is not supreme... . supremacy which the constitution has deThe Court has bestowed on. this subject its clared. We are unanimously of opinion, that most deliberate consideration. The result isa the law passed by the legislature of Maryconviction that the States have no power, by land, imposing a tax on the Bank of the

taxation or otherwise, to retard, impede, United States, is unconstitutional and burden, or in any manner control, the opera-_ void... . tions of the constitutional laws enacted by Judgment Reversed.

119. TRUSTEES OF DARTMOUTH COLLEGE v. WOODWARD 4 Wheaton, 518 1819

Error to the supreme court of New Hampshire. made for the object, which will be conferred Dartmouth College had been established in 1769 on the corporation as soon as it shall be by a charter granted by King George HI. In created. The charter is granted, and on its Ses and een ana a ated faith the property is conveyed, Surely in thi

new board of trustees. The old board of trustees transaction every ingredient of a complete refused to accept this change, and argued that and legitimate contract is to be found. The the act of New Hampshire was unconstitutional, Points for consideration are, 1. Is this con-

because an impairment of contract contrary to tract protected by the constitution of the | the Federal Constitution. The opinion of the United States? 2. Is it impaired by the acts |

Court that a corporation charter was a contract under which the defendant holds? was of considerable importance in the subsequent 1. On the first point it has been argued pusiness history i" me reais Its Sigmilicance, that the word “contract,” in its broadest

owever!r, was ilmite e decision o e€ cour ‘.e

in the Charles River Bridge v. Warren Bridge Sense, would comprehend the politica rela- | case, Doc. No. 155. There is a voluminous litera- tions between the government and its citi-

ture on the Dartmouth College casc. See, 2€DS, would extend to offices held within a

J. M. Shirley, Dartmouth College Causes; State for state purposes, and to many of A. Beveridge, Marshall, Vol. IV, ch. v.; E. S. those laws concerning civil institutions, which Corwin, John Marshall and the Constitution, must change with circumstances, and be modp. 155 ff.; C. Warren, Supreme Court (1928 ed.), ified by ordinary legislation; which deeply Vol. I, p. 475 ff.; G. T. Curtis, Daniel Webster, concern the public, and which, to preserve Vol. I; C. Fuess, Daniel Webster, Vol. 1; and the good government, the public judgment must illuminating note in J. R. Long, Cases on Con- control. That even marriage is a contract, and

stitutional Law, p. 240. its obligations are affected by the laws respecting divorces. That the clause in the con-

MarsHALL, C. J.: stitution, 1f construed in its greatest latitude, . . . This court can be insensible neither would prohibit these laws. Taken in its broad, to the magnitude nor delicacy of this ques- unlimited sense, the clause would be an untion. The validity of a legislative act is to be profitable and vexatious interference with the examined; and the opinion of the highest internal concerns of a state, would unneceslaw tribunal of a state is to be revised: an sarily and unwisely embarrass its legislation, Opinion which carries with it intrinsic evi- and render immutable those civil institutions dence of the diligence, of the ability, and the which are established for purposes of internal

integrity with which it was formed... . government, and which, to subserve those It can require no argument to prove that purposes, ought to vary with varying circumthe circumstances of this case constitute a stances. That as the framers of the constitucontract. An application is made to the crown tion could never have intended to insert in for a charter to incorporate a religious and’ that instrument a provision so unnecessary, literary institution. In the application it is so mischievous, and so repugnant to its genstated that large contributions have been eral spirit, the term “contract”? must be un-

TRUSTEES OF DARTMOUTH COLLEGE V. WOODWARD 221 derstood in a more limited sense. That it ture of the state may act according to its own must be understood as intended to guard judgment, unrestrained by any limitation of against a power of at least doubtful utility, its power imposed by the constitution of the the abuse of which had been extensively felt, United States. and ‘to restrain the legislature in future from But if this be a private eleemosynary insti-

violating the right to property. That anterior tution, endowed with a capacity to take to the formation of the constitution, a course property for objects unconnected with govof legislation had prevailed in many, if not in ernment, whose funds are bestowed by indiall, of the states, which weakened the con- viduals on the faith of the charter; if the donfidence of man in man, and embarrassed all ors have stipulated for the future disposition transactions between individuals, by dis- and management of those funds in the manner

pensing with a faithful performance of en- prescribed by themselves; there may be gagements. To correct this mischief, by re- more difficulty in the case, although neither straining the power which produced it, the the persons who have made these stipulations, state legislatures were forbidden “‘to pass any nor those for whose benefit they were made, law impairing the obligation of contracts,” should be parties to the cause. Those who that is, of contracts respecting property, are no longer interested in the property may under which some... individual could yet retain such an interest in the preservation claim a right to something beneficial to him- of their own arrangements as to have a right self; and that, since the clause in the consti- to insist that those arrangements shall be tution must in construction receive some held sacred. Or, if they have themselves dislimitation, it may be confined, and ought to appeared, it becomes a subject of serious and be confined, to cases of this description, anxious inquiry whether those whom they to cases within the mischief it was intended to have legally empowered to represent them

remedy. forever may not assert all the rights which

The general correctness of these observa- they possessed while in being; whether, if tions cannot be controverted. That the fram- they be without personal representatives who

ers of the constitution did not intend to re- may feel injured by a violation of the comstrain the states in the regulation of their pact, the trustees be not so completely their civil institutions, adopted for internal gov- representatives in the eye of the law as to ernment, and that the instrument they have _ stand in their place, not only as respects the given us is not to be so construed, may be government of the college, but also as readmitted. The provision of the constitution spects the maintenance of the college charter. never has been understood to embrace other It becomes then the duty of the court most contracts than those which respect property _ seriously to examine this charter, and to as-

or some object of value, and confer rights certain its true character... .

which may be asserted in a court of justice. Whence, then, can be derived the idea that It has never been understood to restrict the Dartmouth College has become a public ingeneral right of the legislature to legislate on stitution, and its trustees public officers. . . .

the subject of divorces. .. . Not from the source whence its funds were

The parties in this case differ less on gen- drawn: for its foundation is purely private eral principles, less on the true construction and eleemosynary—not from the application of the constitution in the abstract, than on of those funds, for money may be given for the application of those principles to this education and the persons receiving it do not, case, and on the true construction of the by being employed in the education of youth charter of 1769. This is the point on which become members of the civil government. Is

the cause essentially depends. If the act of it from the act of incorporation? Let this incorporation be a grant of political power, subject be considered. if it create a civil institution to be employed A corporation is an artificial being, invisiin the administration of the government, or ble, intangible, and existing only in contemif the funds of the college be public property, plation of law. Being the mere creature of or if the state of New Hampshire, as a gov- law, it possesses only those properties which ernment, be alone interested in its transac- the charter of its creation confers upon it tions, the subject is one in which the legisla- _ either expressly or as incidental to its very

222 DOCUMENTS OF AMERICAN History existence. These are such as are supposed terest in the property confided to their probest calculated to effect the object for which tection. Yet the contract would at that time it was created. Among the most important have been deemed sacred by all. What has are immortality, and, if the expression may since occurred to strip it of its inviolability? be allowed, individuality; properties, by Circumstances have not changed it. In reawhich a perpetual succession of many per- son, in justice, and in law, it is now what it sons are considered as the same, and may act was in 1769. as a single individual. They enable a corpora- This is plainly a contract to which the dontion to manage its own affairs, and to hold ors, the trustees, and the crown (to whose property without the perplexing intricacies, rights and obligations New Hampshire sucthe hazardous and endless necessity, of per- ceeds) were the original parties. It is a conpetual conveyances for the purpose of trans- tract made on a valuable consideration. It is mitting it from hand to hand. It is chiefly for 4 contract for the security and disposition of the purpose of clothing bodies of men in suc-_ property. It is a contract on the faith of cession with these qualities and capacities which real and personal estate has been conthat corporations were invented and are in veyed to the corporation. It is then a conuse. By these means, a perpetual succession tract within the letter of the constitution, of individuals are capable of acting for the and within its spirit also, unless the fact that promotion of the particular object, like one the property is invested by the donors in

immortal being... . trustees for the promotion of religion and From this review of the charter, it appears education, for the benefit of persons who are that Dartmouth College is an eleemosynary _ perpetually changing, though the objects re-

institution, incorporated for the purpose of main the same, shall create a particular experpetuating the application of the bounty ception, taking this case out of the prohiof the donors to the specified objects of that bition contained in the constitution.

bounty; that its trustees or governors were It is more than possible that the preservaoriginally named by the founder, and invested _ tion of rights of this description was not par-

with the power of perpetuating themselves; ticularly in the view of the framers of the that they are not public officers, nor is it a constitution when the clause under considercivil institution, participating in the adminis- ation was introduced into that instrument. tration of government; but a charity school, It is probable that interferences of more freor a seminary of education, incorporated for quent recurrence, to which the temptation the preservation of its property, and the per- was stronger and of which the mischief was petual application of that property to the ob- more extensive, constituted the great motive

jects of its creation. ... for imposing this restriction on the state legis-

According to the theory of the British con- atures. But although a particular and a rare stitution, their Parliament is omnipotent. To case may not in itself be of sufficient magniannul corporate rights might give a shock to tude to induce a rule, yet it must be govpublic opinion, which that government has erned by the rule, when established, unless chosen to avoid; but its power is not ques- some plain and strong reason for excluding it tioned. Had Parliament, immediately after can be given. It is not enough to say that this the emanation of this charter and the execu- particular case was not in the mind of the tion of those conveyances which followed it, convention when the article was framed, nor annulled the instrument, so that the living of the American people when it was adopted. donors would have witnessed the disappoint- It is necessary to go farther, and to say that, ment of their hopes, the perfidy of the trans- had this particular case been suggested, the action would have been universally acknowl- language would have been so varied as to exedged. Yet then, as now, the donors would clude it, or it would have been made a spe-

have had no interest in the property; then, cial exception. The case, being within the as now, those who might be students would words of the rule, must be within its operahave had no rights to be violated; then, as__ tion likewise, unless there be something in now, it might be said that the trustees, in the literal construction so obviously absurd, whom the rights of all were combined, pos- or mischievous, or repugnant to the general sessed no private, individual, beneficial in- spirit of the instrument as to justify those

FLORIDA TREATY 223 who expound the constitution in making it an are also appointed by the executive of New

exception. Hampshire, who have power to inspect and On what safe and intelligible ground can control the most important acts of the trus-

this exception stand? There is no expression _ tees. in the constitution, no sentiment delivered by On the effect of this law two opinions canits contemporaneous expounders, which would not be entertained. Between acting directly

justify us in making it... . and acting through the agency of trustces

Almost all eleemosynary corporations, and overseers no essential difference is perthose which are created for the promotion of | ceived. The whole power of governing the

religion, of charity, or of education, are of college is transformed from trustees ap-

the same character. The law of this case is pointed according to the will of the founder,

the law of all. ... expressed in the charter, to the executive of The opinion of the court, after mature de- New Hampshire. The management and apliberation, is, that this is a contract, the ob- plication of the funds of this eleemosynary ligation of which cannot be impaired without institution, which are placed by the donors violating the. constitution of the United in the hands of trustees named in the charter, States. This opinion appears to us to be and empowered to perpctuate themselves, arc equally supported by reason and by the for- placed by this act under the control of the

mer decisions of this court. government of the state. The will of the

2. We next proceed to the inquiry whether _ state is substituted for the will of the donors

its obligation has been impaired by those in every essential operation of the college. acts of the legislature of New Hampshire to This is not an immaterial change. . . . This

which the special verdict refers... . system is totally changed. The charter of

The obligations, then, which were created 1769 exists no longer. It is reorganized; and by the charter to Dartmouth College were reorganized in such a manner as to convert the same in the new that they had been in a literary institution, molded according to the the old government. The power of the gov- will of its founders and placed under the conernment was also the same. A repeal of this trol of private literary men, into a machine charter at any time prior to the adoption of — entirely subservient to the will of governthe present constitution of the United States ment. This may be for the advantage of this would have been an extraordinary and un-_ college in particular, and may be for the adprecedented act of power, but one which vantage of literature in general; but it is not could have been contested only by the re- according to the will of the donors, and is strictions upon the legislature to be found in subversive of that contract on the faith of the constitution of the state. But the consti- which their property was given... . tution of the United Sates has imposed this It results from this opinion, that the acts additional limitation, that the legislature of a of the legislature of New Hampshire, which state shall pass no act “impairing the obliga- are stated in the special verdict found in this

tion of contracts.” cause, are repugnant to the constitution of It has been already stated that the act “to the United States; and that the judgment on amend the charter and enlarge and improve this special verdict ought to have been for the corporation of Dartmouth College” in- the plaintiffs. The judgment of the state creases the number of trustees to twenty-one, court must, therefore, be reversed.

gives the appointment of the additional Mr. Justice Washington and Mr. Justice members to the executive of the state, and Story rendered separate concurring cpinions. creates a board of overseers, to consist of Mr. Justice Duvall dissented. twenty-five persons, of whom twenty-one

120. FLORIDA TREATY February 22, 1819 (Malloy, ed. Treaties, Conventions, etc. Vol. II, p. 1651 ff.) This treaty concluded long-drawn out negotia- the western boundaries of the United States. It tions for the cession of Florida, and marked out was later charged that Sec. J. Q. Adams had

224 DocUMENTS OF AMERICAN HISTORY surrendered our title to Texas by this treaty. thence, along the said parallel, to the South Spain held up ratification in an effort to secure Sea: All the islands in the Sabine, and the see H. B. Fuller, Purchase of Florida: T. Me the course thus described, to belong to the Marshall, Western Boundary of the Louisiona United State s; but the use of the waters, and Purchase; S. F. Bemis, ed. American Secretaries the navigation of the Sabine to the sea, and

of State, Vol. IV, p. 7 ff. of the said rivers Roxo and Arkansas,

throughout the extent of the said boundary, on their respective banks, shall be common to

... Art. II. His Catholic Majesty cedes the respective inhabitants of both nato the United States, in full property and tions... . sovereignty, all the territories which belonged Art. V. The inhabitants of the ceded terto him, situated to the eastward of the Mis- _ritories shall be secured in the free exercise sissippl, known by the name of East and _ of their religion, without any restriction. .. . West Florida. The adjacent islands dependent Art. VI. The inhabitants of the territories on said provinces, all public lots and squares, which His Catholic Majesty cedes to the vacant lands, public edifices, fortifications, United States, by this treaty, shall be inbarracks, and other buildings, which are not corporated in the Union of the United States, private property, archives and documents, as soon as may be consistent with the prinwhich relate directly to the property and sov- ciples of the Federal Constitution, and adereignty of said provinces, are included in mitted to the enjoyment of all the privileges,

this article. ... rights, and immunities of the citizens of the Art. III. The boundary line between the United States... . two countries, west of the Mississippi, shall Art. XI. The United States, exonerating

begin on the Gulph of Mexico, at the mouth Spain from all demands in future, on account

of the river Sabine, in the sea, continuing of the claims of their citizens to which the north, along the western bank of that river, renunciations herein contained extend, and to the 32d degree of latitude; thence, byaline considering them entirely cancelled, underdue north, to the degree of latitude where it take to make satisfaction for the same, to an strikes the Rio Roxo of Natchitoches, or Red amount not exceeding five millions of dollars. River; thence following the course of the Rio To ascertain the full amount and validity of Roxo westward, to the degree of longitude 100 those claims, a commission, to consist of west from London and 23 from Washington; three Commissioners, citizens of the United then, crossing the said Red River, andrunning States, shall be appointed by the President, thence, by a line due north, to the river Ar- by and with the advice and consent of the

kansas, thence, following the course of the Senate... . southern bank of the Arkansas, to its source, Art, XV. Spanish vessels, laden only in latitude 42 north; and thence, by that with productions of Spanish growth or manuparallel of latitude, to the South Sea. The facture, coming directly from Spain, or her whole being as laid down in Melish’s map of _ colonies, “‘shall be admitted, for the term of the United States, published at Philadelphia, twelve years, to the ports of Pensacola and improved to the first of January, 1818. But St. Augustine, without paying other or higher

roman ate Sine eee mot const sid Red and Arkansas Rivers thoughout if the source of the Arkansas River shall be duties on their cargoes, or of tonnage, than found to fall north or south of latitude 42, will be paid by the vessels of the United then the line shall run from the said source States. During the said term no other nation due north or south, as the case may be, till shall enjoy the same privileges within the it meets the said parallel of latitude 42, and ceded territories. . . .

121. THE MISSOURI COMPROMISE 1819-1821

The Territory of Missouri was part of the guaranteed in their liberty, property, and reLouisiana Purchase; by the terms of this pur- ligion. When in 1818 Missouri petitioned for ad-

chase the inhabitants of the Territory were mission to the Union as a State, the question

THE MrssouRI COMPROMISE 225 arose whether this guaranty covered property thereof into the Union, shall be free but may in slaves of whom there were some two or three be held to service until the age of twentythousand in the Territory. In the course of the five years. discussion of the enabling act, Representative Tallmadge of New York offered an amendment

excluding slavery from the State. This amendment 2. THe Tayvtor AMENDMENT

passed the House but failed in the Senate. That January 26, 1820 summer and fall the Missouri question was the ) . chief political issue before the country; Congress (Annals of the Congress of the United States, was bombarded with petitions from State legisla- 16th Cong. Ist. Sess. Vol. I, p. 947) tures and other bodies on the slavery issue. In The reading of the bill proceeded as far as the new Congress the positions of the House and the fourth section; when

the Senate are indicated by the passage in the Mr. Taytor, of New York, proposed to House of the Taylor Amendment, in the Senate amend the bill by incorporating in that sec-

of the Thomas Amendment. The application of ; , oe

Maine for admission as a State offered Congress tion the following provision. ; a way out of the difficulty. A conference com- Section 4, line 25, insert the following mittee reported bills to admit Maine to State- after the word “States”; “And shall ordain hood, and to admit Missouri with the Thomas and establish, that there shall be neither Amendment. An act authorizing Missouri to form slavery nor involuntary servitude in the said a state government was approved March 6, but State, otherwise than in the punishment of the constitution which the Missouri Convention crimes, whereof the party shall have been

drew up contained a clause obnoxious to the duly convicted: Provided, always, That any anti-slavery element, and probably unconstitu- person escaping into the same, from whom

tional, and Congress refused to admit the State lab ‘ce is lawfully claimed j

under this constitution. A conference committee ADOF OF SETVICE 15 awit y Claimed in any

worked out a solution to the problem which was ther State, such fugitive may be lawfully provided in the Resolutions for the admission of | reclaimed, and conveyed to the person claim-

Missouri of March 2. The conditions laid down ing his or her labor or service as aforesaid: were accepted by the legislature of Missouri in And provided, also, That the said provision June, and Missouri was admitted to Statehood shall not be construed to alter the condition

ompromise see F. J. Turner, Rise of the New ’

by proclamation er Ptr 10. Pv OF vissoun or civil rights of any person now held to West, ch. x; H. Von Holst, Constitutional and service or labor in the said Territory. Political History of the United States, Vol. I, . 324 ff.; J. B. Mc Master, History of the People

of the Untied States, Vol. IV, ch. voaiss FC 3. Tue THomas AMENDMENT

Shoemaker, Missouri’s Struggle for Statehood, February 17, 1820 1804-1821; J. A. Woodburn, “Historical Sig- (Ammnals of the Congress of the United States,

nificance of the Missouri Compromise,” Amer. 16th Cong. Ist Sess. Vol. I, p. 427) Hist. Assoc. Report, 1893; F. R. Hodder, “Side And be it further enacted, That, in all that Lights on the Missouri Compromises” Amer. Hist. territory ceded by France to the United Assoc. Report, 1909; H. A. Trexler, Slavery in States, under the name of Louisiana, which Missouri, 1804-1865; H. V. Ames, State Docu- . . . aw ments on Federal Relations, p. 193 ff.; C. R. lies north of thirty-six degrees and thirty King, Life and Correspondence of Rufus King, ™inutes north latitude, excepting only such

Vol. VI. part thereof as is included within the limits of the State contemplated by this act, slavery and involuntary servitude, otherwise than

1. Tue TALLMADGE AMENDMENT in the punishment of crimes whereof the

February 13, 1819 party shall have been duly convicted, shall be (Journal of the House of Representatives, 15th and is hereby forever prohibited: Provided

Congress, 2nd. Sess. p. 272) always, That any person escaping into the

And provided also, That the further intro- same, from whom labor or service is lawduction of slavery or involuntary servitude fully claimed in any State or Territory of be prohibited, except for the punishment of the United States, such fugitive may be lawcrimes, whereof the party shall be duly con- fully reclaimed, and conveyed to the person victed; and that all children of slaves, born claiming his or her labor or service, as aforewithin the said state, after the admission _ said.

226 DOCUMENTS OF AMERICAN History of the United States, who shall have arrived

4. Missouri ENasiinc Act at the age of twenty-one years, and have re-

March 6, 1820 sided in said territory three months previous

(U.S. Statutes at Large, Vol. III, p. 545 ff.) to the day of election, and all other persons An Act to authorize the people of the Mis- qualified to vote for representatives to the sourt territory to form a constitution and general assembly of the said territory, shall state government, and for the admission be qualified to be elected, and they are hereby of such state into the Union on an equal qualified and authorized to vote, and choose

footing with the original states, and to representatives to form a convention... . prohibit slavery in certain territories. SEC. 8. That in all that territory ceded by Be it enacted That the inhabitants of that France to the United States, under the name portion of the Missouri territory included of Louisiana, which lies north of thirty-six dewithin the boundaries hereinafter designated, grees and thirty minutes north latitude, not be, and they are hereby, authorized to form included within the limits of the state, confor themselves a constitution and state gov- templated by this act, slavery and involuntary ernment, and to assume such name as they _ servitude, otherwise than in the punishment shall deem proper; and the said state, when of crimes, whereof the parties shall have been formed, shall be admitted into the Union, duly convicted, shall be, and is hereby, forupon an equal footing with the original states, ever prohibited: Provided always, That any

in all respects whatsoever. person escaping into the same, from whom

SEc. 2. That the said state shall consist labour or service is lawfully claimed, in any of all the territory included within the fol- state or territory of the United States, such lowing boundaries, to wit: Beginning in the fugitive may be lawfully reclaimed and conmiddle of the Mississippi river, on the paral- veyed to the person claiming his or her lalel of thirty-six degrees of north latitude; bour or service as aforesaid. thence west, along that parallel of latitude, to the St. Francois river; thence up, and following the course of that river, in the middle 5. THE CONSTITUTION OF Missouri

of the main channel thereof, to the parallel July 19, 1820

of latitude of thirty-six degrees and thirty (Poore, ed., Federal and State Constitutions,

minutes; thence west, along the same, to a Vol. II, p. 1107-8)

point where the said parallel is intersected by SEC. 26. The general assembly shall not a meridian line passing through the middle have power to pass laws— of the mouth of the Kansas river, where the 1. For the emancipation of slaves without same empties into the Missouri river, thence, the consent of their owners; or without from the point aforesaid north, along the said paying them, before such emancipation, a full meridian line, to the intersection of the paral- equivalent for such slaves so emancipated; lel of latitude which passes through the rap- and, ids of the river Des Moines, making the said 2. To prevent bona-fide immigrants to this line to correspond with the Indian boundary State, or actual settlers therein, from bringline; thence east, from the point of intersec- ing from any of the United States, or from tion last aforesaid, along the said parallel of any of their Territories, such persons as may latitude, to the middle of the channel of the there be deemed to be slaves, so long as any main fork of the said river Des Moines; persons of the same description are allowed thence down and along the middle of the to be held as slaves by the laws of this State. main channel of the said river Des Moines, They shall have power to pass laws— to the mouth of the same, where it empties 1. To prevent bona-fide immigrants to this into the Mississippi river; thence, due east, State of any slaves who may have committed to the middle of the main channel of the Mis- any high crime in any other State or Terri-

sissippi river; thence down, and following tory; the course of the Mississippi river, in the 2. To prohibit the introduction of any slave middle of the main channel thereof, to the for the purpose of speculation, or as an ar-

place of beginning: .. . ticle of trade or merchandise;

Sec, 3. That all free white male citizens 3. To prohibit the introduction of any

Lanp Law oF 1820 227 slave, or the offspring of any slave, who here- Resolved, That Missouri shall be admitted tofore may have been, or who hereafter may into this union on an equal footing with the be, imported from any foreign country into original states, in all respects whatever, upon the United States, or any Territory thereof, the fundamental condition, that the fourth in contravention of any existing statute of clause of the twenty-sixth section of the third

the United States; and, article of the constitution submitted on the

4. To permit the owners of slaves to eman- __ part of said state to Congress, shall never be

cipate them, saving the right of creditors, construed to authorize the passage of any where the person so emancipating will give law, and that no law shall be passed in consecurity that the slave so emancipated shall formity thereto, by which any citizen, of

not become a public charge. either of the states in this Union, shall be

It shall be their duty, as soon as may be, excluded from the enjoyment of any of the to pass such laws as may be necessary— privileges and immunities to which such citi1. To prevent free negroes end [and] mu- zen is entitled under the constitution of the lattoes from coming to and settling in this United States: Provided, That the legislature State, under any pretext whatsoever; and, of the said state, by a solemn public act, shall 2. To oblige the owners of slaves to treat declare the assent of the said state to the them with humanity, and to abstain from all said fundamental condition, and shall transinjuries to them extending to life or limb. mit to the President of the United States, on or before the fourth Monday in November 6. RESOLUTION FOR THE ADMISSION OF next, an authentic copy of the said act:

Missour! upon the receipt whereof, the President, by

March 2, 1821 proclamation, shall announce the fact; where-

(U. S. Statutes at Large, Vol. III, p. 645) upon, and without any further proceeding on Resolution providing for the admission of the the part of Congress, the admission of the State of Missourt into the Union, on a _ said state into this Union shall be considered

certain condition. as complete.

122. LAND LAW OF 1820 April 24, 1820

(U.S. Statutes at Large, Vol. III, p. 566-7) This law reduced the price of public land and the day of purchase, make complete payment put an end to the credit system established by therefor; ... the Act of 1800. See, P. J. Treat, National Land Sec. 3. That from and after the first day

*y stem, learn fT. ponadson, The Public of July next, the price at which the public

OEE OS IES Oe: lands shall be offered for sale, shall be one

An act making further provision for the sale dollar and twenty-five cents an acre; and at

of the public lands. every public sale, the highest bidder, who

Be tt enacted, That from and after the first shall make payment as aforesaid, shall be the

day of July next, all the public lands of the purchaser; but no land shall be sold, either United States, the sale of which is, or may be at public or private sale, for a less price than authorized by law, shall, when offered at pub- one dollar and twenty-five cents an acre; and

lic sale, to the highest bidder, be offered in ll the public lands which shall have been half quarter sections; and when offered at offered at public sale before the first day of private sale, may be purchased, at the option July next, and which shall then remain unof the purchaser, either in entire sections, sold, as well as the lands that shall thereafter half sections, quarter sections, or half quarter be offered at public sale, according to law,

sections; .. . and remain unsold at the close of such public Sec. 2. That credit shall not be allowed sales, shall be subject to be sold at private

for the purchase money on the sale of any of _ sale, by entry at the land office, at one dollar the public lands which shall be sold after the and twenty-five cents an acre, to be paid at

first day of July next, but every purchaser of the time of making such entry as aforeJand sold at public sale thereafter, shall, on said: . . .

228 DOCUMENTS OF AMERICAN HistorRy 123. COHENS v. VIRGINIA 6 Wheaton, 264 1821

Error to the Quarterly Session Court of Norfolk, lution depends on the construction of Virginia. P. J. and M. J. Cohen were prosecuted either... . for selling lottery tickets in violation of a Vir- The jurisdiction of the Court, then, being Peet statute. ‘The defendants claimed the pro- extended by the letter of the constitution to

ection of an act of Congress of 1802 establishing il _ der j F he |

a lottery, but they were convicted and fined in the a Cases arising uncer ut or under the laws Virginia Court. The defendants sued out a writ of the United States, it follows that those

of error to the Supreme Court under Sec. 28 Who would withdraw any case of this deof the Judiciary Act of 1789. This case involved scription from that jurisdiction must sustain the constitutionality of that Section, and the in- the exemption they claim on the spirit and terpretation of the 11th Amendment to the Con- true meaning of the constitution, which spirit

stitution. See, Beveridge, Marshall, Vol. IV, and true meaning must be so apparent as to p. 344 ff.; Warren, Supreme Court, ch. xiii. overrule the words which its framers have employed.

MarsHatt, C. J... . 1st. The first ques- The counsel for the defendant in error tion to be considered is, whether the jurisdic- have undertaken to do this; and have laid ~ tion of this Court is excluded by the charac- down the general proposition, that a sovter of the parties, one of them being a State, ereign independent State is not suable, except

and the other a citizen of that State. by its own consent. The second section of the third article This general proposition will not be con- | of the constitution defines the extent of the troverted. But its consent is not requisite in judicial power of the United States. Jurisdic- each particular case. It may be given in a tion is given to the Courts of the Union, general law. And if a State has surrendered in two classes of cases. In the first, their any portion of its sovereignty, the question,

jurisdiction depends on the character of the whether a liability to suit be a part of this : cause, whoever may be the parties. This class portion, depends on the instrument by which comprehends “‘all cases in law and equity aris- the surrender is made. If, upon a just con-

ing under this constitution, the laws of the struction of that instrument it shall appear : United States, and treaties made, or which that the State has submitted to be sued, then

shall be made, under their authority.” This it has parted with this sovereign right of , clause extends the jurisdiction of the Court judging in every case on the justice of its . to all the cases described, without making in Own pretensions, and has intrusted that : its terms any exception whatever, and with- power to a tribunal in whose impartiality it out any regard to the condition of the party. confides. If there be any exception, it is to be implied The American States, as well as the Ameri-

against the express words of the article. can people, have believed a close and firm In the second class, the jurisdiction de- union to be essential to their liberty and to pends entirely on the character of the parties, their happiness. They have been taught by In this are comprehended “controversies be- experience that this union cannot exist withtween two or more States, between a State out a government for the whole; and they and citizens of another State,” and “between have been taught by the same experience that a State and foreign States, citizens or sub- this government would be a mere shadow, jects.” If these be the parties, it is entirely that must disappoint all their hopes, unless unimportant what may be the subject of con- invested with large portions of that sovtroversy. Be it what it may, these parties ereignty which belongs to independent States. have a constitutional right to come into the Under the influence of this opinion, and thus

courts of the Union... . instructed by experience, the American peo-

A case in law or equity ... may truly be ple, in the conventions of their respective

said to arise under the constitution or a law States, adopted the present constitution. of the United States whenever its correct so- If it could be doubted, whether, from its

CoHENS V. VIRGINIA 229 nature, it were not supreme in all cases where ‘tion or laws of the United States. From this it is empowered to act, that doubt would be general grant of jurisdiction no exception Is removed by the declaration, that “this con- made of those cases in which a State may be

stitution, and the laws of the United States a party. When we consider the situation of which shall be made in pursuance thereof, the government of the Union and of a State and all treaties made, or which shall be made, _in relation to each other, the nature of our under the authority of the United States, constitution, the subordination of the state shall be the supreme law of the land; and the governments to that constitution, the great judges in every State shall be bound thereby, purpose for which jurisdiction over all cases

anything in the constitution or laws of any arising under the constitution and laws of State to the contrary notwithstanding.” This the United States is confided to the judicial is the authoritative language of the American department, are we at liberty to insert in this

people; and, if gentlemen please, of the general grant, an exception of those cases in American States. It marks, with lines too which a State may be a party? Will the spirit strong to be mistaken, the characteristic dis- of the constitution justify this attempt to tinction between the government of the control its words? We think it will not. We Union, and those of the States. The general think a case arising under the constitution or government, though limited as to its objects, laws of the United States is cognizable in is supreme with respect to those objects. the Courts of the Union, whoever may be This principle is a part of the constitution; the parties to that case. and if there be any who deny its necessity, Had any doubt existed with respect to the

none can deny its authority. just construction of this part of the section, To this supreme government ample powers that doubt would have been removed by the are confided; and if it were possible to doubt enumeration of those cases to which the juris-

the great purposes for which they were so diction of the federal Courts is extended, in confided, the people of the United States consequence of the character of the parties. have declared, that they are given “in order In that enumeration, we find “controversies to form a more perfect union, establish jus- | between two or more States, between a State tice, insure domestic tranquillity, provide for and citizens of another State, and between the common defense, promote the general a State and foreign States, citizens or subwelfare, and secure the blessings of liberty jects.” to themselves and their posterity.” With the One of the express objects, then, for which ample powers confided to this supreme gov- the judicial department was established, 1s ernment for these interesting purposes are the decision of controversies between States, connected many express and important lim- and between a State and individuals. The

itations on the sovereignty of the States, mere circumstance, that a State is a party, which are made for the same purposes. The gives jurisdiction to the Court. How, then, powers of the Union, on the great subjects of can it be contended, that the very same inwar, peace and commerce, and on many strument, in the very same section, should others, are in themselves limitations of the be so construed, as that this same circumsovereignty of the States; but in addition to stance should withdraw a case from the Juristhese, the sovereignty of the States is sur- diction of the court, where the constitution rendered in many instances where the sur- or laws of the United States are supposed to render can only operate to the benefit of the have been violated? ... The mischievous people, and where, perhaps, no other power consequences of the construction contended is conferred on Congress than a conservative for on the part of Virginia, are also entitled to power to maintain the principles established great consideration. It would prostrate, it in the constitution. The maintenance of these has been said, the government and its laws principles in their purity is certainly among at the feet of every State in the Union. And the great duties of the government. One of would not this be its effect? What power of the instruments by which this duty may be the government could be executed by its own peaceably performed is the judicial depart- means, in any State disposed to resist its ment. It is authorized to decide all cases, of execution by a course of legislation? The laws every description, arising under the constitu- must be executed by individuals acting

230 DocUMENTS OF AMERICAN History within the several States. If these individuals part of the clause was inserted. It may be

may be exposed to penalties, and if the true, that the partiality of the State tribuCourts of the Union cannot correct the nals, in ordinary controversies between a State judgments by which these penalties may be and its citizens, was not apprehended, and enforced, the course of the government may thercfore the judicial power of the Union be, at any time, arrested by the will of one was not extended to such cases; but this was of its members. Each member will possess a not the sole nor the greatest object for which

veto on the will of the whole... . this department was created. A more im-

Different States may entertain different portant, a much more interesting object, was opinions on the true construction of the con- the preservation of the constitution and laws

stitutional powers of Congress... . of the United States, so far as they can be But a constitution is framed for ages to preserved by judicial authority; and therecome, and is designed to approach immortal- fore the jurisdiction of the Courts of the ity as nearly as human institutions can ap- Union was expressly extended to all cases proach it. Its course cannot always be tran- arising under that constitution and those quil. It is exposed to storms and tempests, laws. If the constitution or laws may be vioand its framers must be unwise statesmen lated by proceedings instituted by a State indeed, if they have not provided it, so far against its own citizens, and if that violation as its nature will permit, with the means of | may be such as essentially to affect the conself-preservation from the perils it may be _ stitution and the laws, such as to arrest the destined to encounter. No government ought progress of government in its constitutional to be so defective in its organization as not course, why should these cases be excepted to contain within itself the means of securing from that provision which expressly extends the execution of its own laws against other the judicial power of the Union to all cases dangers than those which occur every day. arising under the constitution and laws? Courts of justice are the means most usually After bestowing on this subject the most employed; and it is reasonable to expect that attentive consideration, the Court can pera government should repose on its own ceive no reason founded on the character of Courts, rather than on others. There is cer- the parties for introducing an exception tainly nothing in the circumstances under which the constitution has not made; and we which our constitution was formed, nothing think that the judicial power, as originally in the history of the times, which would jus- given, extends to all cases arising under the tify the opinion that the confidence reposed constitution or a law of the United States, in the States was so implicit as to leave in whoever may be the parties. .. . them and their tribunals the power of resist- This leads to the consideration of the 11th ing or defeating, in the form of law, the legiti- Amendment... . :

mate measures of the Union. .. . It is, then, the opinion of the Court, that

It has been also urged, as an additional ob- the defendant who removes a judgment renjection to the jurisdiction of the Court, that dered against him by a State Court into this cases between a State and one of its own Court, for the purpose of re-examining the citizens, do not come within the general question, whether that judgment be in vioscope of the constitution; and were obviously lation of the constitution or laws of the never intended to be made cognizable in the United States, does not commence or prose-

federal Courts. .. . cute a suit against the State, whatever may

If jurisdiction depended entirely on the be its opinion where the effect of the writ character of the parties, and was not given may bé to restore the party to the possession where the parties have not an original right of a thing which he demands. to come into Court, that part of the 2d sec- But should we in this be mistaken the error tion of the 3d article, which extends the ju- does not affect the case now before the Court. dicial power to all cases arising under the If this writ of error be a suit in the sense of constitution and laws of the United States, the llth amendment, it is not a suit comwould be mere surplusage. It is to give juris- menced or prosecuted “by a citizen of andiction where the character of the parties other State or by a citizen or subject of any

would not give it, that this very important foreign State.” It is not then within the

CoHENS V. VIRGINIA 231 amendment, but is governed by the consti- dividuals or governments within the Ameritution as originally framed, and we have al- can territory. The constitution and laws of a

ready seen, that in its origin, the judicial State, so far as they are repugnant to the power was extended to all cases arising under constitution and laws of the United States, the constitution or laws of the United States, are absolutely void. These States are con-

without respect to parties. stituent parts of the United States. They are ad. The second objection to the jurisdic- members of one great empire—for some purtion of the Court is that its appellate power poses sovereign, for some purposes subordi-

cannot be exercised, in any case, over the nate. judgment of a State Court. This objection is In a government so constituted is it unsustained chiefly by arguments drawn from reasonable that the judicial power should the supposed total separation of the judiciary be competent to give efficacy to the constituof a State from that of the Union, and theiren- tional laws of the legislature? That departtire independence of each other. The argument ment can decide on the validity of the conconsiders the federal judiciary as completely stitution or law of a State, if it be repugnant

foreign to that of a State; and as being no to the constitution or to a law of the United more connected with it, in any respect what- States. Is it unreasonable that it should also ever, than the Court of a foreign State. It be empowered to decide on the judgment of this hypothesis be just, the argument founded a State tribunal enforcing such unconstituon it is equally so; but if the hypothesis be tional law? Is it so very unreasonable as to not supported by the constitution, the argu- furnish a justification for controlling the

ment fails with it. words of the constitution? We think it is not.

This hypothesis is not founded on any We think that, in a government acknowl-

words in the constitution which might seem edgedly supreme with respect to objects of to countenance it, but on the unreasonable- vital interest to the nation, there is nothing ness of giving a contrary construction to inconsistent with sound reason, nothing inwords which seem to require it, and on the compatible with the nature of government, incompatibility of the application of the ap- in making all its departments supreme, so far pellate jurisdiction to the judgments of state as respects those objects, and so far as is

courts with that constitutional relation necessary to their attainment. The exercise which subsists between the government of of the appellate power over those judgments the Union and the governments of those of the state tribunals which may contravene

States which compose it. the constitution or laws of the United States, Let this unreasonableness, this total in- is, we believe, essential to the attainment of

compatibility, be examined. those objects.

That the United States form, for many and The propriety of intrusting the construcfor most important purposes, a single nation, tion of the constitution, and laws made in has not yet been denied. In war we are one pursuance thereof, to the judiciary of the people. In making peace we are one people. Union, has not, we believe, as yet been drawn In all commercial regulations we are one and__in question. It seems to be a corollary from the same people. In many other respects the this political axiom that the federal Courts American people are one, and the govern- should either possess exclusive jurisdiction in ment which is alone capable of controlling such cases, or a power to revise the judgment and managing their interests in all these re- rendered in them by State tribunals... . spects, is the government of the Union. It is We are not restrained, then, by the potheir government, and in that character they _ litical relations between the general and State

have no other. America has chosen to be, in governments from construing the words of | many respects, and to many purposes, a na- the constitution defining the judicial power in tion; and for all these purposes her govern- their true sense. We are not bound to con-

ment is complete; to all these objects it is strue them more restrictively than they natcompetent. The people have declared that in urally import. the exercise of all the powers given for these They give to the Supreme Court appellate objects it is supreme. It can, then, in effect- jurisdiction in all cases arising under the con-

ing these objects, legitimately control all in- stitution, laws, and treaties of the United

232 DOCUMENTS OF AMERICAN HistToRyY States. The words are broad enough to com- established the case was then heard and deprehend all cases of this description, in what- cided on its merits. The court held that the

ever court they may be decided. .. . act of Congress authorizing the lottery was After having bestowed upon this question confined in its operation to the city of Washthe most deliberate consideration of which ington and gave the defendants no right to we are capable, the Court is unanimously of _ sell lottery tickets in Virginia, and that the opinion that the objections to its jurisdiction Norfolk court therefore had the right to conare not sustained, and that the motion ought vict the defendants for violating a law of

to be overruled. Virginia, and its judgment was therefore

Motion denied. affirmed.

After the jurisdiction of the court was thus

124. CHANCELLOR KENT ON UNIVERSAL SUFFRAGE Remarks of Chancellor Kent to the New York Constitutional Convention of 1821

(Reports of the Proceedings and Debates of the Convention of 1821, ed. by H. N. Carter, W. L. Stone, and M. T. C. Gould, sec. 219 ff.) The second decade of the nineteenth century $250 in freehold estate, over and above all witnessed a liberalizing of the constitutions of the debts charged thereon. The governor has seaboard states, resulting in part from the demo- heen chosen by the same electors, and we cratic influence of the new western states. The oye hitherto elected citizens of elevated proposal to abolish the property qualification rank ind character. Our assembly has been opposition from the conservatives, which was chosen by freeholders, possessing a freehold eloquently voiced by Chief Justice Ambrose Of the value of $50, or by persons renting a

for suffrage in New York State aroused intense

Spencer and Chancellor James Kent. Despite this tenement of the yearly value of $5, and who opposition the liberals carried the day. See, D.S. have been rated and actually paid taxes to Alexander, Political History of the State of New the state. By the report before us, we propose York, Vol. II, ch. xxvii; J. B. Mc Master, Acquisi- to annihilate, at one stroke, all those proption of Political, Social and Industrial Rights of erty distinctions and to bow before the idol

Man in America; E. H. Roberts, New York, of universal suffrage. That extreme demoVol. II; J. D. Hammond, Political History of the cratic principle, when applied to the legislaState of New Vork, Vol. II. On Kent, see W. J. tive and executive departments of the gov-

curtis, James Kent; W. Kent, Memoirs and Let-

ters of James Kent; J. Horton, James Kent. ernment, has been regarded with terror, by

the wise men of every age, because in every

Chancellor Kent. . .. These are some of European republic, ancient and modern, in the fruits of our present government; and which it has been tried, it has terminated disyet we seem to be dissatisfied with our pres- astrously, and been productive of corruption, ent condition, and we are engaged in the bold _ injustice, violence, and tyranny. And dare we anu hazardous experiment of remodelling flatter ourselves that we are a peculiar people, the constitution. Is it not fit and discreet: I who can run the career of history, exempted speak as to wise men; is 1t not fit and proper from the passions which have disturbed and that we should pause in our career, and re- corrupted the rest of mankind? If we are like flect well on the immensity of the innovation other races of men, with similar follies and in contemplation? Discontent in the midst of — vices, then I greatly fear that our posterity so much prosperity, and with such abundant _ will have reason to deplore in sackcloth and

means of happiness, looks like ingratitude, ashes, the delusion of the day... . and as if we were disposed to arraign the Now, sir, I wish to preserve our senate as goodness of Providence. Do we not expose’ the representative of the landed interest. I ourselves to the danger of being deprived of | wish those who have an interest in the soil, to

the blessings we have enjoyed? ... retain the exclusive possession of a branch The senate has hitherto been elected by in the legislature, as a strong hold in which the farmers of the state—by the free and they may find safety through all the vicissiindependent lords of the soil, worth at least tudes which the state may be destined, in the

MonrROE’S VETO OF CUMBERLAND ROAD BILL 233 course of Providence, to experience. I wish tendency. Thou shalt not covet; thou shalt them to be always enabled to say that their not steal; are divine injunctions induced by freeholds cannot be taxed without their con- this miserable depravity of our nature. Who sent. The men of no property, together with can undertake to calculate with any prethe crowds of dependents connected with cision, how many millions of people, this great manufacturing and commercial estab- great state will contain in the course of this lishments, and the motley and undefinable and the next century, and who can estimate population of crowded ports, may, perhaps, the future extent and magnitude of our comat some future day, under skilful manage- mercial ports? The disproportion between ment predominate in the assembly, and yet the men of property, and the men of no we should be perfectly safe if no laws could property, will be in every society in a ratio pass without the free consent of the owners to its commerce, wealth, and population. of the soil. That security we at present en- We are no longer to remain plain and simple joy; and it is that security which I wish to republics of farmers, like the New-England

retain. colonists, or the Dutch settlements on the The apprehended danger from the ex- Hudson. We are fast becoming a great naperiment of universal suffrage applied to tion, with great commerce, manufactures,

the whole legislative department, is no dream population, wealth, luxuries, and with the of the imagination. It is too mighty an ex- vices and miseries that they engender. One citement for the moral constitution of men to seventh of the population of the city of Paris endure. The tendency of universal suffrage, at this day subsists on charity, and one third

is to jeopardize the rights of property, and of the inhabitants of that city die in the the principles of liberty. There is a constant hospitals; what would become of such a city | tendency in human society, and the history with universal suffrage? France has upwards of every age proves it; there is a tendency in of four, and England upwards of five millions

the poor to covet a share in the plunder of manufacturing and commercial labourers of the rich; in the debtor to relax or avoid without property. Could these Kingdoms susthe obligation of contracts; in the majority tain the weight of universal suffrage? The to tyrannize over the minority, and trample radicals in England, with the force of that down their rights; in the indolent and profli- mighty engine, would at once sweep away the

gate, to cast the whole burthens of society property, the laws, and the liberties of that upon the industrious and the virtuous; and island like a deluge. there is a tendency in ambitious and wicked The growth of the city of New-York is men, to inflame these combustible materials. enough to startle and awaken those who are It requires a vigilant government, and a firm pursuing the JGN/JS FATUUS of universal administration of justice, to counteract that suffrage... .

125. MONROE’S VETO OF CUMBERLAND ROAD BILL May 4, 1822 (Richardson, ed. Messages and Papers, Vol. II, p. 142 ff.) A detailed and comprehensive exposition of Presi- approving as I do the policy, that I am com-

dent Monroe’s constitutional objections to the pelled to object to its passage and to return cccompanying this message, Richardson, Vol TL, TC, bill to the House of Representatives, in

p. 144-183. See, J. S. Young, Cumberland Road; a it originated, under a conviction that P. J. Treat, The National Land System; F. J. onere ss do not possess the power under the Turner, Rise of the New West, p. 230 ff. Constitution to pass such a law. A power to establish turnpikes with gates WASHINGTON, May 4, 1822. and tolls, and to enforce the collection of

To the House of Representatives: . tolls by penalties, implies a power to adopt ; Having duly considered the bill entitled and execute a complete system of internal An act for the preservation and repair of improvement. A right to impose duties to be the Cumberland road,” it is with deep regret, paid by all persons passing a certain road,

234 DocUMENTS oF AMERICAN History and on horses and carriages, as is done by power which has been specifically granted. this bill, involves the right to take the land If we examine the specific grants of power from the proprietor on a valuation and to we do not find it among them, nor is it incipass laws for the protection of the road from dental to any power which has been specifinjuries, and if it exist as to one road it ex- ically granted.

ists as to any other, and to as many roads as It has never been contended that the Congress may think proper to establish. A power was specifically granted. It is claimed right to legislate for one of these purposes is only as being incidental to some one or more a right to legislate for the others. It isa com- of the powers which are specifically granted. plete right of jurisdiction and sovereignty for The following are the powers from which it

all the purposes of internal improvement, is said to be derived: and not merely the right of applying money First, from the right to establish postunder the power vested in Congress to make offices and post-roads; second, from the right appropriations, under which power, with the to declare war; third, to regulate commerce;

consent of the States through which this fourth, to pay the debts and provide for the road passes, the work was originally com- common defense and general welfare; fifth, merced, and has been so far executed. Iam from the power to make all laws necessary of opinisn. that Congress do not possess this and proper for carrying into execution all the

power; that che States individually can not powers vested by the Constitution in the grant it, for although they may assent to the Government of the United States or in any appropriation of money within their limits department or officer thereof; sixth and for such purposes, they can grant no power lastly, from the power to dispose of and make of jurisdiction or sovereignty by special com- all needful rules and regulations respecting

pacts with the United States. This power can the territory and other property of the be granted only by an amendment to the United States. Constitution and in the mode prescribed by it. According to my judgment it can not be If the power exist, it must be either be- derived from either of those powers, nor cause it has been specifically granted to the from all of them united, and in consequence United States or that it is incidental to some it does not exist. .

126. THE ENGLISH BACKGROUND OF THE MONROE DOCTRINE Letter from George Canning to Richard Rush August 20, 1823 (R. Rush, Memoranda of a Residence at the Court of London, p. 412) George Canning, who was contemptuous of the the United States did not respond to Canning’s Holy Alliance and its activities, became prime proposals. Meantime Canning had secured from minister of Great Britain in September 1822. Prince Polignac assurance that France would not The following month the powers of Europe met under any circumstances act against the former at the Congress of Verona to consider the feasi- Spanish colonies by force of arms. Canning was bility of the restoration of the Spanish monarchy _ satisfied with this understanding, and did not in the countries of South America. Great Britain press his original idea of a joint declaration with withdrew from this Congress and in March 1823 _ the United States. See references to Doc. No. 127 Canning instructed the English minister to Paris and H. W. V. Temperley, The Life of Canning; that England could not permit France to acquire A. G. Stapleton, Political Life of George Canning, any of the former Spanish colonies in America. 3 Vols; H. W. V. Temperley, The Foreign Policy August 16 Canning made informal overtures to of Canning. the American minister, Rush, looking to joint ac-

tion on Latin-American affairs. The letter of Foreign Office, Aug. 20, 1823 August 20 contains a suceanct Statement of Can- Private and Confidential tion of the Latin American Republics. For this My dear Sir: —Before leaving Town Tam

ing’s position, but it did not embrace recogni- - ;

reason, and because Secretary Adams felt that desirous of bringing before you im a more it would be better not “to come in as a cock- distinct, but still in an unofficial and confiboat in the wake of the British man-of-war’” dential shape, the question which we shortly

Tur MonroeE DOCTRINE 235 discussed the last time that I had the pleas- by conquest; such a declaration on the part

ure of seeing you. of your government and ours would be at Is not the moment come when our Gov- once the most effectual and the least offenernments might understand each other as to sive mode of intimating our joint misapprothe Spanish American Colonies? And if we bation of such projects.

can arrive at such an understanding, would It would at the same time put an end to it not be expedient for ourselves, and bene- all the jealousies of Spain with respect to ficial for all the world, that the principles of her remaining Colonies, and to agitation it should be clearly settled and plainly which prevails in those Colonies, an’ agita-

avowed? tion which it would be but humane to allay; For ourselves we have no disguise. being determined (as we are) not to profit by 1. We conceive the recovery of the Col- encouraging it.

onies by Spain to be hopeless. Do you conceive that under the power

2. We conceive the question of the recog- which you have recently received, you are nition of them, as Independent States, to be authorized to enter into negotiation and to

one of time and circumstances. sign any Convention upon this subject? Do 3. We are, however, by no means disposed you conceive, if that be not within your to throw any impediment in the way of an competence, you could exchange with me arrangement between them and the mother ministerial notes upon itr

country by amicable negotiations. Nothing could be more gratifying to me 4. We aim not at the possession of any than to join with you in such a work, and,

portion of them ourselves. I am persuaded, there has seldom, in the his-

5. We could not see any portion of them tory of the world, occurred an opportunity transferred to any other Power, with indif- when so small an effort of two friendly Gov-

ference. ernments might produce so unequivocal a

If these opinions and feelings are, as I good and prevent such extensive calamities. firmly believe them to be, common to your I shall be absent from London but three Government with ours, why should we hesi- weeks at the utmost; but never so far distate mutually to confide them to each other; tant but that I can receive and reply to and to declare them in the face of the world? any communication within three or four If there be any European Power which days. cherishes other projects, which looks to a I have the honor to be forcible enterprise for reducing the colonies My Dear Sir, with great respect and esteem

to subjugation, on the behalf or in the name Your obedient and faithful servant

of Spain; or which meditates the acquisition George Canning of any part of them to itself, by cession or R. Rush, Esar.

127. THE MONROE DOCTRINE Extracts from President Monroe’s Seventh Annual Message to Congress December 2, 1823 (Richardson, ed. Messages and Papers, Vol. II, p. 207 ff.) The literature on the Monroe Doctrine is too Monroe Doctrine, especially the annexes. On the voluminous to detail here. See the bibliographies authorship of the Doctrine, W. C. Ford, “John in F. J. Turner, Rise of the New West, p. 351; Quincy Adams: His Connection with the Monroe Channing, Hart and Turner, Guide to the Study Doctrine’ in Massachusetts Hist. Soc. Proceedand Reading of American History, Sec. 198; ings, 2d Ser. Vol. XV, p. 373 ff. has not yet been H. B. Meyer, List of References on the Mon- superseded. On recognition of the Latin-American roe Doctrine. For more recent literature, see, Republics, F. L. Paxson, The Independence of D. Perkins, The Monroe Doctrine, 1823-1826; the South American Republics is still the standard S. Bemis, ed. American Secretaries of State and treatise. The diplomatic correspondence has been Their Diplomacy, Vol. IV, p. 36 ff. and bibli- collected in three volumes, W. R. Manning, ed. ography, p. 347 ff.; H. W. V. Temperley, The Diplomatic Correspondence of the United States Foreign Policy of Canning; A. Alvarez, The Concerning the Independence of the Latin Amer-

236 DOCUMENTS OF AMERICAN HISTORY ican Nations. A quasi-official statement of the cessity more immediately connected, and by doctrine is J. R. Clark, Memorandum on the causes which must be obvious to all enlight-

Monroe Doctrine. ened and impartial observers. The political

. . . At the proposal of the Russian Im- system of the allied powers is essentially difperial Government, made through the minis- ferent in this respect from that of America. ter of the Emperor residing here, a full This difference proceeds from that which expower and instructions have been transmitted ists in their respective Governments; and to

to the minister of the United States at St. the defense of our own, which has been Petersburg to arrange by amicable negotia- achieved by the loss of so much blood and tion the respective rights and interests of the treasure, and matured by the wisdom of their two nations on the northwest coast of this most enlightened citizens, and under which continent. A similar proposal had been made we have enjoyed unexampled felicity, this by His Imperial Majesty to the Government whole nation is devoted. We owe it, thereof Great Britain, which has likewise been ac- fore, to candor and to the amicable relations ceded to. The Government of the United existing between the United States and those States has been desirous by this friendly pro- powers to declare that we should consider ceeding of manifesting the great value which any attempt on their part to extend their they have invariably attached to the friend- system to any portion of this hemisphere as ship of the Emperor and their solicitude to dangerous to our peace and safety. With the cultivate the best understanding with his Gov- existing colonies or dependencies of any ernment. In the discussions to which this in- European power we have not interfered and terest has given rise and in the arrangements shall not interfere. But with the Governby which they may terminate the occasion ments who have declared their independence has been judged proper for asserting, as a and maintained it, and whose independence principle in which the rights and interests of | we have, on great consideration and on just the United States are involved, that the principles, acknowledged, we could not view American continents, by the free and inde- any interposition for the purpose of oppresspendent condition which they have assumed ing them, or controlling in any other manner and maintain, are henceforth not to be con- their destiny, by any European power in any sidered as subjects for future colonization by other light than as the manifestation of an

any European powers... . unfriendly disposition toward the United

It was stated at the commencement of the States. In the war between those new Govlast session that a great effort was then mak- ernments and Spain we declared our neutral-

ing in Spain and Portugal to improve the ity at the time of their recognition, and to condition of the people of those countries, this we have adhered, and shall continue to and that it appeared to be conducted with adhere, provided no change shall occur which, extraordinary moderation. It need scarcely in the judgment of the competent authorities be remarked that the result has been so far of this Government, shall make a correspondvery different from what was then anticipated. ing change on the part of the United States Of events in that quarter of the globe, with indispensable to their security. which we have so much intercourse and The late events in Spain and Portugal shew from which we derive our origin, we have that Europe is still unsettled. Of this imporalways been anxious and interested specta- tant fact no stronger proof can be adduced

tors. The citizens of the United States cher- than that the allied powers should have

ish sentiments the most friendly in favor of thought it proper, on any principle satisfacthe liberty and happiness of their fellow-men tory to themselves, to have interposed by on that side of the Atlantic. In the wars of force in the internal concerns of Spain. To the European powers in matters relating to what extent such interposition may be carthemselves we have never taken any part, ried, on the same principle, is a question in nor does it comport with our policy so to do. which all independent powers whose governIt is only when our rights are invaded or ments differ from theirs are interested, even seriously menaced that we resent injuries or those most remote, and surely none more so make preparation for our defense. With the than the United States. Our policy in regard movements in this hemisphere we are of ne- to Europe, which was adopted at an early

PROTEST AGAINST Caucus BY TENNESSEE 237 stage of the wars which have so long agitated any portion of cither continent without enthat quarter of the globe, nevertheless re- dangering our peace and happiness; nor can mains the same, which is, not to interfere anyone believe that our southern brethren, if in the internal concerns of any of its powers; left to themselves, would adopt it of their to consider the government de facto as the own accord. It is equaily impossible, therelegitimate government for us; to cultivate fore, that we should behold such interposition friendly relations with it, and to preserve in any form with indifference. If we look to those relations by a frank, firm, and manly the comparative strength and resources of policy, meeting in all instances the just claims Spain and those new Governments, and their of every power, submitting to injuries from distance from each other, it must be obvious none. But in regard to those continents cir- that she can never subdue them. It is still the cumstances are eminently and conspicuously — true policy of the United States to leave the different. It is impossible that the allied pow- parties to themselves, in the hope that other

ers should extend their political system to powers will pursue the same course... .

128. PROTEST AGAINST THE CAUCUS BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE 1823

(Niles Register, Vol. XXV, p. 137-138) With the breakdown of the machinery provided over another; and such solicitude was felt on by the Constitution for the election of the Presi- this subject, that, in the second section of the dent, there arose the practice of nominations by second article, it is expressly declared, “That party caucus. The growth of the caucus system ng senator or representative, or person holdaroused widespread discontent, and the defeat of ing an office of trust. or srofit under the Crawford, the choice of the rump caucus of the United S h p 7 ; ° Republican Party in 1824, marked the death of nited states, s! all be appointed an elector. “King Caucus”. The caucus system of nomina- From this provision, it 18 apparent that the tions was supplanted by nominations by State Convention intended that the members of legislatures and eventually by national conven- Congress should not be the principal and tions. For the origin of the caucus, see A.C. Mc- primary agents or actors in electing the presiLaughlin and A. B. Hart, Cyclopaedia of Ameri- dent and vice-president of the United States can Government, ‘caucus’; F. W. Dallinger, —so far from it, they are expressly disqualSe ominations for Elective Office im the United ifted fron being placed in a situation to vote

for these high officers. Is there not more

The general assembly of the State of Ten- danger of undue influence to be apprehended, nessee has taken into consideration the prac- when the members of Congress mect in caucus tice which, on former occasions, has prevailed and mutually and solemnly pledge themselves at the City of Washington, of members of the to support the individuals who may have the

Congress of the United States meeting in highest number of votes in such meeting, caucus, and nominating persons to be voted than there would be in permitting them to be

for as president and vice-president of the eligible to the appointment of electors? In United States: and, upon the best view of the — the latter case, a few characters, rendered insubject which this general assembly has been eligible by the Constitution. might succeed: able to take, it is believed that the practice of | but in the former, a powerful combination of congressional nominations is a violation of influential men is formed, who may fix upon

the spirit of the Constitution of the United the American people their highest officers

States. against the consent of a clear majority of the That instrument provides that there shall people themselves; and this may be done by

be three separate and distinct departments the very men whom the Constitution inof the government, and great care and cau- tended to prohibit from acting on the subtion seems to have been exercised by its ject. Upon an examination of the Constituframers to prevent any one department from tion of the United States, there is but one exercising the smallest degree of influence case in which the members of Congress are

238 DOCUMENTS OF AMERICAN History permitted to act, which is in the event of a clusively relied on, to prove the impolicy and

failure to make an election by the electoral unconstitutionality of the Congressional college; and then the members of the House nominations of candidates for the presidency of Representatives vote by States. With what and vice-presidency of the United States: propriety the same men, who, in the year 1st. A caucus nomination is against the spirit 1325, may be called on to discharge a con- of the Constitution. 2nd. It is both inexpestitutional duty, can, in the year 1824, go into . dient and impolitic, 3rd. Members of Con-

a caucus and pledge themselves to support gress may become the final electors, and the men then nominated, cannot be dis- therefore ought not to prejudge the case by cerned, especially when it might so happen pledging themselves previously to support that the persons thus nominated, could [not] particular candidates. 4th. It violates the under any circumstances, obtain a single vote equality intended to be secured by the Confrom the State whose members stand pledged _ stitution to the weaker States. Sth. Caucus

to support them... . nominations may, in time (by the interfer-

Upon a review of the whole question, the ence of the States), acquire the force of following reasons which admit of much am- precedents and become authoritative, and plification and enlargement, more than has thereby endanger the liberties of the Amerbeen urged in the foregoing, might be con- ican people. 129. GIBBONS v. OGDEN 9 Wheaton, 1 1824

Error to the New York Court for the Trial of | sovereigns converted their league into a gOvImpceachments and Correction of Errors. The ernment, when they converted their congress

legislature of New York granted to Robert of ambassadors, deputed to deliberate on Livingston and Robert Fulton the exclusive right their common concerns, and to recommend to navigate the waters of New York State by measures of general utility, into a legislature,

steamboats. This right passed to one Ogden, who .

sued to restrain Gibbons from operating steam- empowered to enact laws on the most interboats on the Hudson River between New Jersey Sting subjects, the whole character in which and New York. This is the most notable of all the states appear underwent a change, the cases involving the interpretation of the com- extent of which must be determined by a merce clause of the Constitution. See Beveridge, fair consideration of the instrument by which Marshall, Vol. IV, ch. viii; Warren, Supreme that change was effected.

Court, ch. xv. This instrument contains an enumeration

MarsHaLt, C. J. The appellant contends of powers expressly granted by the people to that this decree is erroneous because the laws _ their government. It has been said that these

which purport to give the exclusive privilege powers ought to be construed strictly. But it sustains are repugnant to the constitution why ought they to be so construed? Is there and laws of the United States. They are said one sentence in the constitution which gives to be repugnant—lIst. To that clause in the countenance to this rule? In the last of the constitution which authorizes congress to enumerated powers, that which grants, exregulate commerce. 2d. To that which au- _ pressly, the means for carrying all others into thorizes congress to promote the progress of execution, congress is authorized “to make all

science and useful arts. ... laws which shall be necessary and proper”

As preliminary to the very able discussions for the purpose. But this limitation on the of the constitution which we have heard from means which may be used, is not extended to the bar,.and as having some influence on its the powers which are conferred; nor is there construction, reference has been made to the one sentence in the constitution, which has

political situation of these states, anterior to been pointed out by the gentlemen of the its formation. It has been said that they were bar, or which we have been able to discern, sovereign, were completely independent, and that prescribes this rule. We do not, therewere connected with each other only by a _ fore, think ourselves justified in adopting it. league. This is true. But, when these allied What do gentlemen mean by a strict con-

GIBBONS V. OGDEN 239 struction? If they contend only against that into the ports of the other, and be confined enlarged construction which would extend to prescribing rules for the conduct of indiwords beyond their natural and obvious im- _ viduals, in the actual employment of buying

port, we might question the application of and selling, or of barter. If commerce does the term, but should not controvert the prin- not include navigation, the government of ciple. If they contend for that narrow con- the Union has no direct power over that substruction which, in support of some theory ject, and can make no law prescribing what not to be found in the constitution, would shall constitute American vessels, or requirdeny to the government those powers which ing that they shall be navigated by American

the words of the grant, as usually under- seamen. Yet this power has been exercised stood, import, and which are consistent with from the commencement of the government, the general views and objects of the instru- has been exercised with the consent of all, ment for that narrow construction, which and has been understood by all to be a comwould cripple the government, and render it mercial regulation. All America understands, unequal to the objects for which it is declared and has uniformly understood, the word to be instituted, and to which the powers ‘“‘commerce” to comprehend navigation. It

given, as fairly understood, render it com- was so understood, and must have been -petent; then we cannot perceive the pro- so understood, when the constitution was priety of this strict contruction, nor adopt it framed. The power over commerce, including as the rule by which the constitution is to be navigation, was one of the primary objects expounded. As men whose intentions require for which the people of America adopted no concealment, generally employ the words their government, and must have been conwhich most directly and aptly express the templated in forming it. The convention must ideas they intend to convey, the enlightened have used the word in that sense, because all

patriots who framed our constitution, and have understood it in that sense; and the the people who adopted it, must be under- attempt to restrict it comes too late. stood to have employed words in their nat- If the opinion that “‘commerce,” as the ural sense, and to have intended what they word is used in the constitution, compre-

have said. hends navigation also, requires any additional The words are: “congress shall have power confirmation, that additional confirmation is, to regulate commerce with foreign nations, we think, furnished by the words of the in-

and among the several States, and with the strument itself... . Indian tribes.” The subject to be regulated The word used in the constitution, then, is commerce; and our constitution being, as comprehends, and has been always understood was aptly said at the bar, one of enumera- to comprehend, navigation within its meantion, and not of definition, to ascertain the ing; and a power to regulate navigation is as extent of the power, it becomes necessary to expressly granted as if that term had been

settle the meaning of the word. The counsel added to the word “commerce.” To what for the appellee would limit it to traffic, to commerce does this power extend? The conbuying and selling, or the interchange of com- stitution informs us, to commerce “with modities, and do not admit that it compre- foreign nations, and among the several hends navigation. This would restrict a gen- states, and with the Indian tribes.” It has, we eral term, applicable to many objects, to one believe, been universally admitted that these of its significations. Commerce, undoubtedly, words comprehend every species of commer-

is traffic, but it is something more,—it is cial intercourse between the United States intercourse. It describes the commercial in- and foreign nations. No sort of trade can be tercourse between nations, and parts of na- carried on between this country and any tions, in all its branches, and is regulated by _ other to which this power does not extend. It

prescribing rules for carrying on that inter- has been truly said that commerce, as the course. The mind can scarcely conceive a word is used in the constitution, is a unit, system for regulating commerce between’ every part of which is indicated by the term. nations which shall exclude all laws concern- If this be the admitted meaning of the ing navigation, which shall be silent on the word, in its application to foreign nations, it admission of the vessels of the one nation must carry the same meaning throughout the

240 DOCUMENTS OF AMERICAN HisTorRy sentence, and remain a unit, unless there be _ tion pass through the interior of almost every some plain intelligible cause which alters it. state in the Union, and furnish the means of

The subject to which the power is next ap- exercising this right. If congress has the plied is to commerce “among the several power to regulate it, that power must be exerstates.” The word “among” means inter- cised whenever the subject exists. If it exists mingled with. A thing which is among others within the states, if a foreign voyage may is intermingled with them. Commerce among commence or terminate at a port within a

the states cannot stop at the external state, then the power of congress may be

boundary-line of each state, but may be in- exercised within a state... . troduced into the interior. It is not intended The power of congress, then, whatever it to say that these words comprehend that may be, must be exercised within the terricommerce which is completely internal, which torial jurisdiction of the several States. The

iS carried on between man and man ina state, sense of the nation on this subject is unor between different parts of the same state, equivocally manifested by the provisions and which does not extend to or affect other made in the laws for transporting goods by States. Such a power would be inconvenient land between Baltimore and Providence, beand is certainly unnecessary. Comprehensive tween New York and Philadelphia, and beas the word “among” is, it may very properly tween Philadelphia and Baltimore.

be restricted to that commerce which con- We are now arrived at the inquiry, What cerns more States than one. The phrase is is this power? It is the power to regulate; not one which would probably have been se- that is, to prescribe the rule by which comlected to indicate the completely interior merce is to be governed. This power, like all

traffic of a state, because it is not an apt others vested in congress, is complete in itphrase for that purpose; and the enumera- self, may be exercised to its utmost extent, tion of the particular classes of commerce to and acknowledges no limitations other than which the power was to be extended would are prescribed in the constitution. These are not have been made had the intention been to expressed in plain terms, and do not affect extend the power to every description. The the questions which arise in this case, or enumeration presupposes something not enu- which have been discussed at the bar. If, as merated; and that something, if we regard has always been understood, the sovereignty the language or the subject of the sentence, of congress, though limited to specified obmust be the exclusively internal commerce _ jects, is plenary as to those objects, the power

of a state. The genius and character of the over commerce with foreign nations, and whole government seem to be, that its action among the several states, is vested in conis to be applied to all the external concerns gress as absolutely as it would be in a single of the nation, and to those internal concerns government, having in its constitution the

which affect the states generally; but not to same restrictions on the exercise of the those which are completely within a partic- power as are found in the constitution of the ular state, which do not affect other states, United States. .. . The power of congress, and with which it is not necessary to interfere then, comprehends navigation within the limfor the purpose of executing some of the its of every state in the Union, so far as that general powers of the government. The com- navigation may be, in any manner, connected

pletely internal commerce of a state then, with “commerce with foreign nations, or may be considered as reserved for the state among the several States, or with the Indian

itself, tribes.” It may, of consequence, pass the But, in regulating commerce with foreign jurisdiction line of New York, and act upon

nations, the power of congress does not stop __ the very waters to which the prohibition now at the jurisdictional lines of the several states. under consideration applies.

It would be a very useless power if it could But it has been urged with great earnestnot pass those lines. The commerce of the _ ness that, although the power of congress to United States with foreign nations is that of | regulate commerce with foreign nations, and the whole United States. Every district has a among the several states, be coextensive with right to participate in it. The deep streams the subject itself, and have no other limits which penetrate our country in every direc- than are prescribed in the constitution, yet

GIBBONS V. OGDEN 241 the states may severally exercise the same _ the action of all others that would perform power within their respective jurisdictions. the same operation on the same thing. That In support of this argument, it is said that regulation is designed for the entire result, they possessed it as an inseparable attribute applying to those parts which remain as of sovereignty before the formation of the they were, as well as to those which are alconstitution, and still retain it, except so far as tered. It produces a uniform whole, which is they have surrendered it by that instrument; as much disturbed and deranged by changing that this principle results from the nature of what the regulating power designs to leave the government, and is secured by the tenth untouched as that on which it has operated.

amendment; that an affirmative grant of There is great force in this argument, and power is not exclusive, unless in its own na- the court is not satisfied that it has been ture it be such that the continued exercise — refuted. of it by the former possessor is inconsistent Since, however, in exercising the power of with the grant, and that this is not of that regulating their own purely internal affairs,

description. ... whether of trading or police, the states may

In discussing the question, whether this sometimes enact laws the validity of which power is still in the states, in the case under depends on their interfering with, and being

consideration, we may dismiss from it the contrary to, an act of congress passed in inquiry, whether it is surrendered by the pursuance of the constitution, the court will mere grant to congress, or is retained until enter upon the inquiry, whether the laws of congress shall exercise the power. We may New York, as expounded by the highest tridismiss that inquiry, because it has been ex- bunal of that state, have, in their application ercised, and the regulations which congress to this case, come into collision with an act deemed it proper to make, are now in full of congress, and deprived a citizen of a right operation. The sole question is, Can a State to which that act entitles him. Should this regulate commerce with foreign nations and collision exist, it will be immaterial whether among the States while Congress is regulat- those laws were passed in virtue of a con-

ing it? ... current power “to regulate commerce with [Here the Chief Justice examined the acts foreign nations and among the several states,”

of Congress of 1796 and 1799 directing fed- or in virtue of a power to regulate their eral officers to assist in the execution of the domestic trade and police. In one case and quarantine and health laws of a State, the the other the acts of New York must yield to act of 1803 prohibiting the importation of | the law of congress: and the decision sustainslaves into any State which shall itself pro- ing the privilege they confer against a right hibit their importation, and the act of 1789 given by a law of the Union, must be erroacknowledging a concurrent power in the neous. This opinion has been frequently exStates to regulate the conduct of pilots. ] pressed in this court, and is founded as well These acts were cited at the bar for the on the nature of the government as on the purpose of showing an opinion in congress, words of the constitution. In argument, howthat the states possess, concurrently with the ever, it has been contended that, if a law legislature of the Union, the power to regu- passed by a state in the exercise of its aclate commerce with foreign nations and knowledged sovereignty, comes into conflict among the states. Upon reviewing them, we with a law passed by congress in pursuance think, they do not establish the proposition of the constitution, they affect the subject, they were intended to prove. They show the and each other, like equal opposing powers. opinion that the states retain powers enabl- But the framers of the constitution foresaw ing them to pass the laws to which allusion this state of things, and provided for it by has been made, not that those laws proceed declaring the supremacy not only of itself from the particular power which has been but of the laws made in pursuance of it. The

delegated to congress. nullity of any act inconsistent with the conIt has been contended by the counsel for stitution is produced by the declaration that

the appellant that, as the word “to regulate” the constitution is supreme law. ... In implies in its nature full power over the every such case the act of congress, or thing to be regulated, it excludes, necessarily, treaty, is supreme; and the law of the state,

242 DOCUMENTS OF AMERICAN HIsToORY though enacted in the exercise of powers not and metaphysical reasoning, founded on these

controverted, must yield to it... . premises, explain away the constitution of The court is aware that in stating the train our country and leave it a magnificent struc-

of reasoning by which we have been con- ture indeed, to look at, but totally unfit for ducted to this result, much time has been use. They may so entangle and perplex the consumed in the attempt to demonstrate understanding as to obscure principles which propositions which may have been thought were before thought quite plain, and induce axioms. .. . But it was unavoidable. ... doubts where, if the mind were to pursue its Powerful and ingenious minds, taking as own course none would be perceived. In such postulates that the powers expressly granted a case, it is peculiarly necessary to recur to

to the government of the Union are to be safe and fundamental principles, to sustain contracted, by construction, into the nar- those principles, and, when sustained, to make rowest possible compass, and that the orig- them the tests of the arguments to be exinal powers of the states are to be retained, amined. if any possible construction will retain them, Decree of Court of New York reversed and may, by a course of well-digested, but refined annulled and bill of Aaron Ogden dismissed.

130. THE NATIONALISM OF PRESIDENT J. Q. ADAMS Extract from First Annual Message to Congress December 6, 1825 (Richardson, ed. Messages and Papers, Vol. II, p. 311 ff.) President Adams was firmly committed to a portion as it improves the condition of those policy of internal improvements, and the devel- over whom it is established. Roads and caopment of education and the sciences at govern- nals, by multiplying and facilitating the comment expense. He proposed to finance such munications and intercourse between distant projects by carefully conserving the public lands. regions and multitudes of men, are among pared a monumental Report on Weights and © Most Mnportant means of improvement. Measures, and one of his last public acts was the But moral, pohtical, intellectual Improvement dedication of an astronomical observatory. For are duties assigned by the Author of Our the philosophical principles underlying this doc- Existence to social no less than to individual trine, see Brooks Adams, ed. The Degradation of | man. For the fulfillment of those duties govthe Democratic Dogma, introduction; B. C. ernments are invested with power, and to the Clark, John Quincy Adams, p. 235 ft.; F.J.Tur- attainment of the end—the progressive im-

Adams himself, while Secretary of State, pre- th - rant t t

ate nine of rover et heidtion is. pistory ° provement of the condition of the governed

internal Nn "the exercise of delegated powers is a duty Wheeler, History of Congress, Vol. Il, p. 109 It. as sacred and indispensable as the usurpation

.. . Upon this first occasion of address- of powers not granted is criminal and odious. ing the Legislature of the Union, with which Among the first, perhaps the very first, inI have been honored, in presenting to their strument for the improvement of the condiview the execution so far as it has been ef- tion of men is knowledge, and to the acquisifected of the measures sanctioned by them tion of much of the knowledge adapted to for promoting the internal improvement of the wants, the comforts, and enjoyments of our country, I can not close the communica- human life public institutions and seminaries tion without recommending to their calm _ of learning are essential. So convinced of this and persevering consideration the general was the first of my predecessors in this office, principle in a more enlarged extent. The now first in the memory, as, living, he was

great object of the institution of civil first in the hearts, of our countrymen, that government is the improvement of the once and again in his addresses to the Concondition of those who are parties to gresses with whom he cooperated in the pubthe social compact, and no government, in lic service he earnestly recommended the whatever form constituted, can accomplish establishment of seminaries of learning, to the lawful ends of its institution but in pro- prepare for all the emergencies of peace and

THE NATIONALISM OF PRESIDENT J. Q. ADAMS 243 war—a national university and a military enterprises be estimated, and what compenacademy. With respect to the latter, had he sation can be made to them or to their counlived to the present day, in turning his eyes tries for them? Is it not by bearing them in to the institution at West Point he would affectionate remembrance? Is it not still more have enjoyed the gratification of his most by imitating their example—by enabling earnest wishes; but in surveying the city countrymen of our own to pursue the same which has been honored with his name he career and to hazard their lives in the same would have seen the spot of earth which he cause? had destined and bequeathed to the use and In inviting the attention of Congress to benefit of his country as the site for an unl- the subject of internal improvements upon a

versity still bare and barren. view thus enlarged it is not my design to

In assuming her station among the civil- recommend the equipment of an expedition ized nations of the earth it would seem that for circumnavigating the globe for purposes our country had contracted the engagement of scientific research and inquiry. We have to contribute her share of mind, of labor, objects of useful investigation nearer home, and of expense to the improvement of those and to which our cares may be more beneparts of knowledge which lie beyond the ficially applied. The interior of our own terreach of individual acquisition, and partic- ritories has yet been very imperfectly exularly to geographical and astronomical sci- plored. Our coasts along many degrees of ence. Looking back to the history only of the latitude upon the shores of the Pacific Ocean, half century since the declaration of our though much frequented by our spirited comindependence, and observing the generous mercial navigators. have been barely visited emulation with which the Governments of | by our public ships. The River of the West, France, Great Britain, and Russia have de- first fully discovered and navigated by a voted the genius, the intelligence, the treas- countryman of our own, still bears the name ures of their respective nations to the com- of the ship in which he ascended its waters, mon improvement of the species in these and claims the protection of our armed na-

branches of science, is it not incumbent tional flag at its mouth. With the establishupon us to inquire whether we are not bound ment of a military post there or at some other

by obligations of a high and honorable char- point of that coast, recommended by my acter to contribute our portion of energy and predecessor and already matured in the deexertion to the common stock? The voyages liberations of the last Congress, I would of discovery prosecuted in the course of that suggest the expediency of connecting the time at the expense of those nations have equipment of a public ship for the exploranot only redounded to their glory, but to the tion of the whole northwest coast of this improvement of human knowledge. We have continent. been partakers of that improvement and owe The establishment of an uniform standard

for it a sacred debt, not only of gratitude, of weights and measures was one of the but of equal or proportional exertion in the — specific objects contemplated in the forma-

same common cause. Of the cost of these tion of our Constitution, and to fix that undertakings, 1f the mere expenditures of standard was one of the powers delegated by outfit, equipment, and completion of the ex- express terms in that instrument to Congress.

peditions were to be considered the only The Governments of Great Britain and

charges, it would be unworthy of a great and France have scarcely ceased to be occupied generous nation to take a second thought. with inquiries and speculations on the same One hundred expeditions of circumnaviga- subject since the existence of our Constitu] tion like those of Cook and La Pérouse would _ tion, and with them it has expanded into pronot burden the exchequer of the nation fit- found, laborious, and expensive researches ting them out so much as the ways and means into the figure of the earth and the comparaof defraying a single campaign in war. But if _ tive length of the pendulum vibrating seconds

we take into the account the lives of those in various latitudes from the equator to the benefactors of mankind of which their serv- pole. These researches have resulted in the ices in the cause of their species were the composition and publication of several works purchase, how shall the cost of those heroic highly interesting to the cause of science.

244 DOCUMENTS OF AMERICAN HISTORY The experiments are yet in the process of torial surface of Europe there are existing performance. Some of them have recently upward of 130 of these light-houses of the been made on our own shores, within the skies, while throughout the whole American walls of one of our own colleges, and partly hemisphere there is not one. If we reflect a by one of our own fellow-citizens. It would moment upon the discoveries which in the be honorable to our country if the sequel of last four centuries have been made in the the same experiments should be countenanced physical constitution of the universe by the by the patronage of our Government, as they means of these buildings and of observers have hitherto been by those of France and _ stationed in them, shall we doubt of their

Britain. usefulness to every nation? And _ while

Connected with the establishment of an scarcely a year passes over our heads without university, or separate from it, might be un- bringing some new astronomical discovery to dertaken the erection of an astronomical ob- light, which we must fain receive at second servatory, with provision for the support of hand from Europe, are we not cutting ouran astronomer, to be in constant attendance — selves off from the means of returning light of observation upon the phenomena of the for light while we have neither observatory heavens, and for the periodical publication nor observer upon our half of the globe and of his observations. It is with no feeling of the earth revolves in perpetual darkness to pride as an American that the remark may be our unsearching eyes? .. . made that on the comparatively small terri-

131. THE PANAMA CONGRESS

Message of President Adams on the Participation of the United States in the Panama Congress December 26, 1825 (Richardson, ed. Messages and Papers, Vol. II, p. 318 ff.) A Congress of the American nations was called by Secretaries of State, Vol. IV, p. 137 ff.; C. Schurz,

Bolivar to meet in Panama in the summer of Henry Clay, Vol. I. On Bolivar see T. R. Ybarra, 1826. Though Bolivar did not originally invite Bolivar; H. Augell, Bolivar; F. L. Petre, Bolivar. the United States, invitations were extended by To the Senate of the United States:

Colombia and Mexico. President Adams adverted In th to both H fC

to the Congress in his message of December 6, n the message to bot Ouses OF LOngress 1825. The message of December 26 presents ®t the commencement of the session it was his definite acceptance of the invitation and the mentioned that the Governments of the nominations for delegates. A subsequent message Republics of Colombia, of Mexico, and of of March 15, 1826 contains a lengthy argument Central America had severally invited the for American participation in the Congress. The Government of the United States to be repreproposal to send delegates to the Congress aroused _cented at the Congress of American nations bitter opposition in Congress, Party of @ Factiona’ to be assembled at Panama to deliberate

and partisan character, partly because It was . . . believed that the objects ‘Ot the Congress were upon objects of Pear euaeeriatie to tos

inimical to slavery. Though the Foreign Affairs hemisphere, and that this invitation ha Committee of the Senate reported adversely on been accepted. the mission, both Houses finally voted for par- Although this measure was deemed to be ticipation. This action, however, came too late: within the constitutional competency of the Mr. Anderson died on the way to Panama, and Executive, I have not thought proper to take Mr. Sergeant arrived after the Congress had ad- any step in it before ascertaining that my journed. Scc. Clay’s instructions to the American opinion of its expediency will concur with delegates can be found in Department of State, that of both branches of the Legislature, first, Instructions, Vol. XI; President Adams’s mes- by the decision of the Senate upon the nomisage of March 15 in Richardson, Vol. II, p. 329 ff. nations to be laid before them, and. secConference, Vol. IV: The Congress of 1826 at ondly, by the sanction of both Houses to the Panama. Sce also, I. B. Lockey, Pax-American- appropriations, without which it can not be ism: Its Beginnings; S, F. Bemis, ed. American carried into effect. ...

Other documents are in International American ) ?

THe PANAMA CONGRESS 245 It will be seen that the United States establishment of any future European colony neither intend nor are expected to take part within its borders may be found advisable. in any deliberations of a belligerent charac- This was more than two years since anter; that the motive of their attendance is nounced by my predecessor to the world as a neither to contract alliances nor to engage in principle resulting from the emancipation of any undertaking or project importing hos- both the American continents. It may be so

tility to any other nation. developed to the new southern nations that But the Southern American nations, in the they will all feel it as an essential appendage

infancy of their independence, often find to their independence. .

themselves in positions with reference to There is yet another subject upon which, other countries with the principles applicable without entering into any treaty, the moral to which, derivable from the state of inde- influence of the United States may perhaps pendence itself, they have not been familiar- be exerted with beneficial consequences at ized by experience. The result of this has such a mecting—the advancement of religious been that sometimes in their intercourse with liberty. Some of the southern nations are even the United States they have manifested dis- yet so far under the dominion of prejudice positions to reserve a right of granting spe- that they have incorporated with their politicial favors and privileges to the Spanish na- cal constitutions an exclusive church, without

tion as the price of their recognition. At toleration of any other than the dominant others they have actually established duties sect. The abandonment of this last badge of and impositions operating unfavorably to the religious bigotry and oppression may be United States to the advantage of other pressed more effectually by the united exerEuropean powers, and sometimes they have _ tions of those who concur in the principles of

appeared to consider that they might inter- freedom of conscience upon those who are change among themselves mutual concessions yet to be convinced of their justice and wisof exclusive favor, to which neither Euro- dom than by the solitary efforts of a minister pean powers nor the United States should be to any one of the separate Governments. . . . admitted. In most of these cases their regu- In fine, a decisive inducement with me for

lations unfavorable to us have yielded to acceding to the measure is to show by this friendly expostulation and remonstrance. But token of respect to the southern Republics it is believed to be of infinite moment that the interest that we take in their welfare and the principles of a liberal commercial inter- our disposition to comply with their wishes. course should be exhibited to them, and urged Having been the first to recognize their indewith disinterested and friendly persuasion pendence, and sympathized with them so far upon them when all assembled for the avowed as was compatible with our neutral duties in purpose of consulting together upon the es- all their struggles and sufferings to acquire it, tablishment of such principles as may have an we have laid the foundation of our future important bearing upon their future welfare. intercourse with them in the broadest princiThe consentaneous adoption of principles ples of reciprocity and the most cordial feelof maritime neutrality, and favorable to the ings of fraternal friendship. To extend those navigation of peace, and commerce in time principles to all our commercial relations with of war, will also form a subject of considera- them and to hand down that friendship to tion to this Congress. The doctrine that free future ages is congenial to the highest policy ships make free goods and the restrictions of | of the Union, as it will be to that of all those reason upon the extent of blockades may be nations and their posterity. In the confidence established by general agreement with far that these sentiments will meet the approbamore ease, and perhaps with less danger, by tion of the Senate, I nominate Richard C. the general engagement to adhere to them Anderson, of Kentucky, and John Sergeant, concerted at such a meeting, than by partial of Pennsylvania, to be envoys extraordinary treaties or conventions with each of the na- and ministers plenipotentiary to the assembly tions separately. An agreement between all of American nations at Panama, and William the parties represented at the meeting that 3B. Rochester, of New York, to be secretary each will guard by its own means against the to the mission.

246 DocUMENTS OF AMERICAN History 132. MARTIN v. MOTT 12 Wheaton, 19 1827

The War of 1812 was violently opposed in New not been denied here that the act of 1795 is England and parts of New York State. In some within the constitutional authority of Constances this opposition took the form of denying gress, or that Congress may not lawfully prothe right of the President to call out the militia vide for cases of imminent danger of invaChief Justice of the Supreme Court advised the sion, as well as for cases where an IVaStOn Governor that he, and not the President, had has actually taken place. In our opinion there the right to decide when the Constitutional ex- 18 no ground for a doubt on this point, even igency existed which required the calling of the lf 1t had been relied on, for the power to proState militia. It was this question which came _ vide for repelling invasions includes the power before the Supreme Court in the following case. to provide against the attempt and danger of For the background of opposition to the War of invasion, as the necessary and proper means

of a State. In Massachusetts, for example, the , : .,

1812 Sce, 5. ki. Morison, Life of Harrison Gray to effectuate the object. ,

Otis, ch, xx1 ; H. Adams, History of the United . . . The power thus confided by Congress ; States During Adininistration of JamesGouverneur Madi- to the President is doubtless of a very high son, Vol. VI,thech. xvi; T. Roosevelt,

Morris. and delicate nature. A few people are natu- |

rally jealous of the exercise of military STorY, J. This is a writ of error to the power; and the power to call the militia into judgment of the court for the trial of im- actual service was certainly felt to be one of peachments and the correction of errors of no ordinary magnitude. But it is not a power the State of New York, heing the highest which can be executed without a correspondcourt of that state, and is brought here in ent responsiblity. It is, in its terms, a limited virtue of the 25th section of the judiciary power, confined to cases of actual invasion,

act of 1789, ch. 20.... The avowry, in or of imminent danger of invasion. If it be substance, asserts a justification of ...a a limited power, the question arises, by whom | fine and forfeiture imposed upon the original 1s the exigency to be judged of and decided? plaintiff by a court-martial, for a failure to Is the President the sole and exclusive judge

enter the service of the United States as a whether the exigency has arisen, or is it to militia-man, when thereto required by the be considered as an open question, upon

President of the United States in pursuance which every officer to whom the orders of the of the act of the 28th of February, 1795... . President are addressed may decide for himThe constitution declares that Congress — self, and equally open to be contested by every

shall have power “to provide for calling militia-man who shall refuse to obey the orforth the militia, to execute the laws of the ders of the President? We are all of the opinUnion, suppress insurrections, and repel in- ion that the authority to decide whether the vasions” and also “to provide for organizing, exigency has arisen, belongs exclusively to the

arming and disciplining the militia, and for President, and that his decision is conclusive governing such part of them as may be em-_ upon all other persons. We think that this ployed in the service of the United States”. construction necessarily results from the naIn pursuance of this authority, the act of ture of the power itself, and from the mani1795 has provided “that whenever the United fest object contemplated by the act of Con-

States shall be invaded, or be in imminent - gress... . danger of invasion from any foreign nation If we look at the language of the act of or Indian tribe, it shall be lawful for the 1795, every conclusion drawn from the nature President of the United States to call for such of the power itself is strongly fortified. . . . number of the militia of the state or states The power itself is confined to the executive most convenient to the place of danger, or of the Union, to him who is, by the constituscene of action, as he may judge necessary to _ tion, “the Commander-in-chief of the militia,

repel such invasion, and to issue his order for when called into the actual service of the that purpose, to such officer or officers of the United States,” whose duty it is to ‘“‘take care

militia as he shall think proper.” ... It has’ that the laws be faithfully executed,” and

MASSACHUSETTS HiGH SCHOOL Law 247 whose responsibility for an honest discharge power to any person, to be exercised by him, of his official obligations is secured by the upon his own opinion of certain facts, it is a

highest sanctions. He is necessarily consti- sound rule of construction that the statute tuted the judge of the existence of the ex- constitutes him the sole and exclusive judge igency in the first instance, and is bound to of the existence of those facts. And, in the act according to his belief of the facts. If he present case, we are all of opinion that such does so act, and decides to call forth the mili- is the true construction of the act of 1795. tia, his orders for this purpose are in strict It is no answer that such a power may be conformity with the provisions of the law; abused, for there is no power which is not and it would seem to follow as a necessary susceptible of abuse. The remedy for this, as consequence, that every act done by a sub- well as for all other official misconduct, if it ordinate officer, in obedience to such orders, should occur, is to be found in the constitution is equally justifiable. The law contemplates, itself. In a free government the danger must under such circumstances, orders shall be be remote, since in addition to the high qualgiven to carry the power into effect; and it ities which the Executive must be presumed to cannot therefore be a correct inference that possess, of public virtue and honest devotion

any other person has a just right to disobey to the public interests, the frequency of them. The law does not provide for any ap- elections, and the watchfulness of the reprepeal from the judgement of the President, sentatives of the nation, carry with them all or for any right in subordinate officers to re- the checks which can be useful to guard view his decision, and in effect defeat it. against usurpation or wanton tyranny.

Wherever a statute gives a discretionary Judgement reversed. 133. MASSACHUSETTS HIGH SCHOOL LAW 1827

(Laws of Massachusetts, January session, 1827, ch. cxliil) This is the first American law providing for the one school in each year. In every city, town, establishment of high schools. Note that its pro- or district, containing five hundred families, visions are mandatory rather than merely per- or householders shall be provided with such missive. The law was not adequately enforced, teacher or teachers for such term of time as however, until Horace Mann assumed control shall be equivalent to twenty-f

of the Massachusetts Board of Education, in ~ quivalent to -wenty-1our mont AS,

1837. Even in 1840 there were only 18 high shall also be provided with a master of good schools in the State: by 1860 the number had morals, competent to instruct, in addition to increased to over one hundred. See, G. H. Martin, the branches of learning aforesaid, in the his-

Evolution of the Massachusetts Public School tory of the United States, bookkeeping by

System. single entry, geometry, surveying, algebra;

and shall employ such master to instruct a Be it enacted, That each town or district school in such city, town, or district, for the within this Commonwealth, containing fifty benefit of all the inhabitants thereof, at least families, or householders, shall be provided ten months in each year, exclusive of vacawith a teacher or teachers, of good morals, to tions, in such convenient places, or alterinstruct children in orthography, reading, nately at such places in such city, town, or writing, English grammar, geography, arith- district, as said inhabitants, at their meeting

metic, and good behavior, for such term of — in March, or April, annually, shall determine; time as shall be equivalent to six months for and in every city, or town, and district, conone school in cach year; and every town or taining four thousand inhabitants, such mas-

district containing one hundred families or ter shall be competent in addition to all householders, shall be provided with such the foregoing branches, to instruct the Latin teacher or teachers, for such term of time and Greek languages, history, rhetoric, and as shall be equivalent to eighteen months, for _ logic.

248 DOCUMENTS OF AMERICAN HISTORY 134. AMERICAN INSURANCE COMPANY v. CANTER 1 Peters, 511 1828

Appeal from the United States circuit court for The course which the argument has taken, the district of South Carolina. This was a suit wyjj] require, that, in deciding this question, by the American Insurance Co. to recover a cargo the court should take into view the relation in of cotton which had been sold by order of the Which Florida stands to the United States.

territorial legislature of Florida. The plaintiffs The Constitution confers absolutely on the the sale was not a Icgally constituted court be- 80Vernment of the Union the powers of makcause the acquisition of Florida by the United 26 war and of making treaties; consequently, States was unconstitutional. This is the leading that government possesses the power of accase on the constitutionality of the acquisition of | quiring territory, either by conquest or by territory. Sec A. Beveridge, John Marshall, Vol. treaty. The usage of the world is, if a nation IV, p. 142 ff.; C. Warren, Supreme Court, (1928 be not entirely subdued, to consider the hold-

alleged that the territorial court which ordered , y

ed.) Vol. I, p. 700. ing of conquered territory as a mere military occupation, until its fate shall be determined

MarsHAtt, C. J. The plaintiffs filed their at the treaty of peace. If it be ceded by the libel in this cause in the District Court of treaty, the acquisition is confirmed, and the South Carolina to obtain restitution of 356 ceded territory becomes a part of the nation bales of cotton . . . which had been insured to which it is annexed; either on the terms by them on a voyage from New Orleans to stipulated in the treaty of cession, or on Havre de Grace, in France. The Point @ such as its new master shall impose. On such Petre was wrecked on the coast of Florida, the transfer of territory, it has never been held cargo saved by the inhabitants, and carried _ that the relations of the inhabitants with each

into Key West, where it was sold for the other undergo any change. Their relations purpose of satisfying the salvors; by virtue with their former sovereign are dissolved, and of a decree of a court, consisting of a notary new relations are created between them and and five jurors, which was erected by an act the government which has acquired their terof the territorial Legislature of Florida. The ritory. The same act which transfers their owners abandoned to the underwriters, who country transfers the allegiance of those who proceeded against the property; alleging that remain in it; and the law which may be dethe sale was not made by order of a court nominated political is necessarily changed, al-

competent to change the property. .. . though that which regulates the intercourse David Canter claimed the cotton as a and general conduct of individuals remains bona fide purchaser, under the decree of a in force, until altered by the newly created

competent court.... power of the state. | The district judge pronounced the decree On the 2d of February, 1819, Spain ceded

of the Territorial Court a nullity, and awarded Florida to the United States. The 6th article

restitution to the libelants.... of the treaty of cession contains the following The libelants and claimant both ap- provision: “The inhabitants of the territories

pealed.... which his Catholic Majesty cedes to the The cause depends mainly on the question United States by this treaty shall be incorwhether the property in the cargo saved, was _ porated in the Union of the United States, as

changed, by the sale at Key West. ... Its soon as may be consistent with the principles validity has been denied, on the ground, that of the federal Constitution ; and admitted to it was ordered by an incompetent tribunal. the enjoyment of the privileges, rights, and The tribunal was constituted by an act of the immunities of the citizens of the United

territorial legislature of Florida, passed on States.” .

the 4th July, 1823, which is inserted in the This treaty is the law of the land, and adrecord, That act purports to give the power mits the inhabitants of Florida to the enjoywhich has been exercised; consequently, the ment of the privileges, rights and immunities sale is valid, if the territorial legislature was of the citizens of the United States. It is un-

competent to enact the law. necessary to inquire whether this is not their

: THe S. C. Protest AGAINST TARIFF OF 1828 249 condition, independent of stipulation. They of the Constitution does not apply to it. The do not, however, participate in political next sentence declares, that “the judges both power; they do not share in the government of the supreme and inferior courts, shall hold till Florida shall become a State. Inthe mean- their offices during good behavior.” The time Florida continues to be a territory of judges of the superior courts of Florida hold the United States, governed by virtue of that _ their offices for four years. ‘These courts, then,

clause in the Constitution which empowers are not constitutional courts, in which the Congress “to make all needful rules and reg- judicial power conferred by the Constitution

ulations respecting the territory or other on the general government can be deposited. property belonging to the United States.” They are incapable of receiving it. They Perhaps the power of governing a territory are legislative courts, created in virtue of the belonging to the United States which has not general right of sovereignty which exists in by becoming a State acquired the means of the government, or in virtue of that clause self-government may result necessarily from which enables Congress to make all needful the facts that it is not within the jurisdiction rules and regulations, respecting the territory

of any particular State, and is within the belonging to the United States. The jurisdicpower and jurisdiction of the United States. tion with which they are invested, is not a The right to govern may be the inevitable part of that judicial power which 1s defined consequence of the right to acquire territory. in the third article of the Constitution, but Whichever may be the source whence the is conferred by Congress, in the execution of power is derived, the possession of it is un- those general powers which that body posquestioned. In execution of it Congress, in sesses over the territories of the United States. 1822, passed “An Act for the Establishment Although admiralty jurisdiction can be exof a Territorial Government in Florida;” and ercised in the States, in those courts only on the 3d of March, 1823, passed another act which are established in pursuance of the to amend the act of 1822. Under this act the third article of the Constitution; the same territorial legislature enacted the law now un-__ limitation does not extend to the territories.

der consideration. .. . In legislating for them, Congress exercises It has been contended that, by the Consti- the combined powers of the general, and of a tution, the judicial power of the United States state government.

extends to all cases of admiralty and mari- We think, then, that the act of the territime jurisdiction; and that the whole of this torial legislature erecting the court by whose

judicial power must be vested “in one su- decree the cargo of the Pomt a Petre was preme court, and in such inferior courts as_ sold, is not “inconsistent with the laws and Congress shall from time to time ordain and Constitution of the United States,” and is establish.” Hence, it has been argued that valid. Consequently, the sale made in pursuCongress cannot vest admiralty jurisdiction ance of it changed the property, and the dein courts created by the territorial legisla- cree of the circuit court, awarding restitu-

ture. tion of the property to the claimant, ought We have only to pursue this subject one to be affirmed, with costs. step further, to perceive that this provision Decree affirmed.

135. THE SOUTH CAROLINA PROTEST AGAINST THE TARIFF OF 1828 December 19, 1828 (Elliot’s Debates, 1861 ed. Vol. IV, p. 580) This protest against the “tariff of abominations” protests against the tariff and for protests from of May 20, 1828 was the concluding part of the other States, see, H. V. Ames, State Documents South Carolina Exposition, drafted by Calhoun, on Federal Relations. then Vice-President of the United States. The Exposition is in Calhoun’s Works, 1855 ed. Vol. The Senate and House of Representatives VI. See also, references in Doc. No. 143. On Cal- Of South Carolina, now met, and sitting in houn see H. Von Holst, Calhoun; G. Hunt, Cal- General Assembly, through the Hon. William houn; W. C. Meigs, Calhoun, 2 Vols. For earlier Smith and the Hon. Robert Y. Hayne, their

250 DOCUMENTS OF AMERICAN HISTORY representatives in the Senate of the United domestic industry implies an absolute conStates, do, in the name and on behalf of the _ trol over all the interests, resources, and purgood people of the said commonwealth, sol- suits of a people, and is consistent with the emnly PROTEST against the system of pro- idea of any other than a simple, consolidated tecting duties, lately adopted by the federal government.

government, for the following reasons:— Sth. Because, from the contemporaneous Ist. Because the good people of this com- exposition of the Constitution in the numbers monwealth believe that the powers of Con- of the Federalist, (which is cited only because gress were delegated to it in trust for the the Supreme Court has recognized its author-

accomplishment of certain specified objects ity), it is clear that the power to regulate which limit and control them, and that every commerce was considered by the Convention

exercise of them for any other purposes, is a as only incidentally connected with the violation of the Constitution as unwarrant- encouragement of agriculture and manufacable as the undisguised assumption of sub- tures; and because the power of laying imstantive, independent powers not granted or posts and duties on imports was not under-

expressly withheld. stood to justify in any case, a prohibition of

2d. Because the power to lay duties onim- foreign commodities, except as a means of ports is, and in its very nature can be, only a extending commerce, by coercing foreign nameans of effecting objects specified by the tions to a fair reciprocity in their intercourse Constitution; since no free government, and with us, or for some bona fide commercial least of all a government of enumerated pow- purpose.

ers, can of right impose any tax, any more 6th. Because, whilst the power to protect than a penalty, which is not at once justified manufactures is nowhere expressly granted to by public necessity, and clearly within the Congress, nor can be considered as necessary scope and purview of the social compact; and and proper to carry into effect any specified since the right of confining appropriations of power, it seems to be expressly reserved to the the public money to such legitimate and con- _ states, by the 10th section of the Ist article of stitutional objects is as essential to the liberty the Constitution.

of the people as their unquestionable privi- 7th. Because even admitting Congress to lege to be taxed only by their consent. have a constitutional right to protect manu3d. Because they believe that the tariff law factures by the imposition of duties, or by passed by Congress at its last session, and all regulations of commerce, designed principally

other acts of which the principal object is the for that purpose, yet a tariff of which the protection of manufactures, or any other operation is grossly unequal and oppressive, branch of domestic industry, if they be con- is such an abuse of power as is incompatible

sidered as the exercise of a power in Congress with the principles of a free government and

to tax the people at its own good will and the great ends of civil society, justice, and pleasure, and to apply the money raised to equality of rights and protection. objects not specified in the Constitution, is 8th. Finally, because South Carolina, from a violation of these fundamental principles, a her climate, situation, and peculiar institubreach of a well-defined trust, and a perver- tions, is, and must ever continue to be, sion of the high powers vested in the federal wholly dependent upon agriculture and com-

government for federal purposes only. merce, not only for her prosperity, but for 4th. Because such acts, considered in the her very existence as a state; because the light of a regulation of commerce, are equally valuable products of her soil—the blessings liable to objection; since, although the power by which Divine Providence seems to have

to regulate commerce may, like all other designed to compensate for the great disadpowers, be exercised so as to protect domes- vantages under which she suffers in other retic manufactures, yet it is clearly distinguish- spects—are among the very few that can be able from a power to do so €0 nomine, both in cultivated with any profit by slave labor; and the nature of the thing and in the common if, by the loss of her foreign commerce, these acception of the terms; and because the con- products should be confined to an inadequate founding of them would lead to the most ex- market, the fate of this fertile state would be travagant results, since the encouragement of poverty and utter desolation; her citizens, in

, THE CONSTITUTION OF A LYCEUM 251 despair, would emigrate to more fortunate of which it is the surest pledge, but feeling it regions, and the whole frame and constitution to be their bounden duty to expose and resist of her civil policy be impaired and deranged, all encroachments upon the true spirit of the

if not dissolved entirely. Constitution, lest an apparant acquiescence Deeply impressed with these considera- in the system of protecting duties should be tions, the representatives of the good people drawn into precedent—do, in the name of the of this commonwealth, anxiously desiring to commonwealth of South Carolina, claim to live in peace with their fellow-citizens, and to enter upon the Journal of the Senate their do all that in them lies to preserve and per- protest against it as unconstitutional, opprespetuate the union of the states, and liberties sive, and unjust.

136. THE CONSTITUTION OF A LYCEUM 1829

| (Old South Leaflets No. 139) The Lyceum movement was part of the general 5. The delegates will meet delegates from educational reform movement of the eighteen other branches of the Lyceum in this county thirties. It was organized in 1826 by Josiah Hol- semi-annually, to adopt regulations for their brook of Massachusetts, and the various lyceums general and mutual benefit, or to take measof New England were federated in 1831. In many ures to introduce uniformity and improverespects similar to the Chautauqua movement of . er the late nineteenth and early twentieth century, ments into common schools, and to diffuse the lyceums attracted to their platforms some of useful and practical knowledge generally the most eminent intellectual leaders of the day. through the community, particularly to form See, H. B. Adams, “Educational Extension in and aid a BOARD oF EDUCATION.

the United States,’ U. S. Commissioner of Ed- 6. To raise the standard of common educa- : ucation, Report, 1899-1900; J. S. Noffsinger, tion, and to benefit the juvenile members of Correspondence Schools, Lyceums, and Chau- the Lyceum, a portion of the books procured

Lauquas. shall be fitted to young minds; and teachers ae of schools may be permitted to use for the

Constitution benefit of their pupils who are members of Many Lyceums have adopted the following the Lyceum the apparatus and minerals unor similar articles for their Constitution:— der such restrictions as the association shall

1. The objects of the Lyceum are the im- prescribe. . . . provement of its members in useful knowledge and the advancement of Popular Edu-

cation. RECOMMENDATIONS

2. To effect these objects, they will hold The undersigned hereby express their opinmeetings for reading, conversation, discus- ion that popular education would be greatly sions, dissertations, illustrating the sciences, advanced by measures to concentrate the or other exercises which shall be thought ex- views and efforts of those disposed to act in pedient, and, as it is found convenient, will its behalf to different parts of the country. procure a cabinet consisting of books, appa- That the formation of a Society would be ratus for illustrating the sciences, plants, min- the most direct and efficient measure to conerals, and. other natural or artificial produc- centrate such views and efforts.

tions. That the institution denominated the 3. Any person may be Member of the Ly- AmerRicAN LyceuM embraces in its plan ceum by paying into the treasury annually the important objects of a National Society, Two Dollars; and Twenty Dollars paid at for the advancement of popular education. any one time will entitle a person, his or her That it 1s highly desirable that an auxheirs or assigns, to one membership forever. illary to this Society, or a branch Lyceum, Persons under eighteen years of age will be should be established in every town. entitled to all the privileges of the Society, That some simple articles of apparatus are except voting, for one-half the annual sum important to render Lyceums interesting,

above named... . useful, and permanent, and that the articles

252 DOCUMENTS OF AMERICAN HISTORY , proposed by Mr. Horsroox are fitted to ing apparatus, and other exercises in relation this object, and that a portion of them would to their schools, would have a tendency to be useful in district and other schools. raise their qualifications and to increase the That a weekly meeting of teachers for us- value of their services.

137. CRAIG er. av. v. THE STATE OF MISSOURI 4 Peters, 410 1830

Writ of error to the Supreme Court of the State to the amount of two hundred thousand dolof Missouri. This case concerned the constitu- lars, of denominations not exceeding ten doltionality of an act of the legislature of Missouri, lars nor less than fifty cents. The paper pur-

27 June, 1821, to establish loan offices which ports on its face to be receivable at the were empowered fo issue certificates to the treasury, or at any loan-office of the State of amount of two hundred thousand dollars, which Mi “in dischz f debts d certificates were to be receivable at the treasury 1ssourl, IM ISC arge of taxes or debts due of the State of Missouri in discharge of taxes the State. The law . . . also pledges the or debts due to the State and by all officers in faith and funds of the State for their redempthe State in discharge of salaries and fees of office. tion.

It seems impossible to doubt the intention

Marsuatt, C. J... . This brings us to of the Legislature in passing this act, or to the great question in the cause: Is the act of | mistake the character of these certificates, or the Legislature of Missouri repugnant to the the office they were to perform. The denom-

Constitution of the United States? inations of the bills—from ten dollars to

The counsel for the plaintiffs in error main- fifty cents—fitted them for the purpose of tain that it is repugnant to the Constitution, ordinary circulation and their reception in because its object is the emission of bills of payment of taxes and debts to the governcredit contrary to the express prohibition ment and to corporations, and of salaries and contained in the tenth section of the first ar- fees, would give them currency. They were to ticle. .. . The clause in the Constitution be put into circulation; that is, emitted by the

which this act is supposed to violate is in government... . these words: “No state shall emit bills of But it is contended that though these cer-

credit”. tificates should be deemed bills of credit, acWhat is a bill of credit? What did the Con- cording to the common acceptation of the

stitution mean to forbid? term, they are not so in the sense of the In its enlarged, and perhaps its literal sense, Constitution because they are not made legal

the term “bill of credit” may comprehend _ tender. any instrument by which a State engages to The Constitution itself furnishes no counpay money at a future day; thus including a tenance to this distinction. The prohibition is certificate given for money borrowed. But the general. It extends to all bills of credit, not language of the Constitution itself, and the to bills of a particular description. That trimischief to be prevented, which we know from bunal must be bold indeed, which, without the history of our country, equally limit the the aid of other explanatory words, could veninterpretation of the terms. ... To “emit ture on this construction. It is the less admisbills of credit” conveys to the mind the idea sible in this case, because the same clause of issuing paper intended to circulate through of the Constitution contains a substantive the community for its ordinary purposes, as prohibition to the enactment of tender laws. money, which paper is redeemable at a future The Constitution, therefore, considers the day. This is the sense in which the terms have emission of bills of credit and the enactment

always been understood... . of tender laws as distinct operations, indeWhat is the character of the certificates is- pendent of each other, which may be sepsued by authority of the act under considera- arately performed. Both are forbidden. To tion? What office are they to perform? Cer- sustain the one because it is not also the tificates signed by the auditor and treasurer other; to say that bills of credit may be of the State are to be issued by those officers emitted if they be not made a tender in pay-

Jackson’s VETO OF MAYSVILLE ROAD BILL 253 ment of debts, is, in effect, to expunge that have spoken their will in terms which we candistinct independent prohibition, and to read not misunderstand. the clause as if it had been entirely omitted. To these admonitions we can only answer,

We are not at liberty to do this... . that if the exercise of that jurisdiction which A majority of the court feels constrained has been imposed upon us by the Constituto say that the consideration on which the _ tion and laws of the United States shall be note in this case was given is against the calculated to bring on those dangers which highest law of the land, and that the note have been indicated, or if it shall be indisitself is utterly void. In rendering judgement pensable to the preservation of the Union, for the plaintiff the Court for the State of and consequently, of the independence and Missouri decided in favor of the validity of a liberty of these States, these are consideralaw which is repugnant to the Constitution tions which address themselves to those

of the United States. departments which may with perfect proIn the argument we have been reminded by priety be influenced by them. This departone side of the dignity of a sovereign State; ment can listen only to the mandates of law,

of the humiliation of her submitting herself and can thread only that path which is to this tribunal; of the dangers which may marked out by duty. result from inflicting a wound on that dig-

nity; by the other, of the still superior dig- The judgement of the Supreme Court of nity of the people of the United States, who Missouri is reversed.

138. JACKSON’S VETO OF MAYSVILLE ROAD BILL May 27, 1830 (Richardson, ed. Messages and Papers, Vol. II, p. 483 ff.) President J. Q. Adams had supported a policy rendering the claim of jurisdiction. In the of internal improvements at national expense, but first view the question of power is an open

Fa ran vow constuction of this ques- One? and can be decided without the embartion. On the veto, sec, W. MacDonald, Jacksonian The ened attending the other, arising from

Democracy, ch. viii; E. C. Mason, The Veto practice of the Government. Although

Power, sec. 83 ff. frequently and strenuously attempted, the power to this extent has never been exercised May 27, 1830. by the Government in a single instance. It

To the House of Representatives. does not, In my opinion, possess it; and no

Gentlemen: I have maturely considered bill, therefore, which admits it can receive the bill proposing to authorize ‘a subscrip- my official sanction. tion of stock in the Maysville, Washington, But in the other view of the power the Paris, and Lexington Turnpike Road Com- question is differently situated. The ground pany,” and now return the same to the House _ taken at an early period of the Government of Representatives, in which it originated, was “that whenever money has been raised

with my objections to its passage... . by the general authority and is to be ap-

The constitutional power of the Federal plied to a particular measure, a question Government to construct or promote works arises whether the particular measure be of internal improvement presents itself in within the enumerated authorities vested in two points of view—the first as bearing upon Congress. If it be, the money requisite for the sovereignty of the States within whose it may be applied to it; if not, no such aplimits their execution is contemplated, if plication can be made.” The document in jurisdiction of the territory which they may which this principle was first advanced is of occupy be claimed as necessary to their deservedly high authority, and should be held preservation and use; the second as asserting in grateful remembrance for its immediate the simple right to appropriate money from agency in rescuing the country from much the National Treasury in aid of such works existing abuse and for its conservative effect when undertaken by State authority, sur- upon some of the most valuable principles of

254 DOCUMENTS OF AMERICAN HISTORY the Constitution. The symmetry and purity denominated national. It has no connection

of the Government would doubtless have with any established system of improvebeen better preserved if this restriction of ments; is exclusively within the limits of a the power of appropriation could have been State, starting at a point on the Ohio River maintained without weakening its ability to and running out 60 miles to an interior town, fulfill the general objects of its institution, an and even as far as the State is interested effect so likely to attend its admission, not- conferring partial instead of general advanwithstanding its apparent fitness, that every tages. subsequent Administration of the Govern- Considering the magnitude and importance ment, embracing a period of thirty out of the of the power, and the embarrassments to forty-two years of its existence, has adopted which, from the very nature of the thing, its a more enlarged construction of the power. exercise must necessarily be subjected, the It is not my purpose to detain you by a mi-__ real friends of internal improvement ought nute recital of the acts which sustain this not to be willing to confide it to accident and

assertion, but it is proper that J should no- chance... . tice some of the most prominent in order In the other view of the subject, and the that the reflections which they suggest to my only remaining one which it is my intention

mind may be better understood... . to present at this time, is involved the exThe bill before me does not call fora more pediency of embarking in a system of interdefinite opinion upon the particular circum- nal improvement without a previous amendstances which will warrant appropriations of ment of the Constitution explaining and money by Congress to aid works of internal defining the precise powers of the Federal improvement, for although the extension of Government over it. Assuming the right to the power to apply money beyond that of appropriate money to aid in the construction carrying into effect the object for which it is of national works to be warranted by the appropriated has, as we have seen, been long contemporaneous and continued exposition of claimed and exercised by the Federal Gov- the Constitution, its insufficiency for the ernment, yet such grants have always been successful prosecution of them must be adprofessedly under the control of the general mitted by all candid minds. If we look to orinciple that the works which might be thus usage to define the extent of the right, that aided should be “of a general, not local, na- will be found so variant and embracing so tional, not State,” character. A disregard of | much that has been overruled as to involve this distinction would of necessity lead to the the whole subject in great uncertainty and to subversion of the federal system. That even render the execution of our respective duties this is an unsafe one, arbitrary in its nature, in relation to it replete with difficulty and and liable, consequently, to great abuses, is embarrassment. It is in regard to such works

too obvious to require the confirmation of and the acquisition of additional territory experience. It is, however, sufficiently definite that the practice obtained its first footing. In

and imperative to my mind to forbid my most, if not all, other disputed questions of approbation of any bill having the character appropriation the construction of the Conof the one under consideration. I have given stitution may be regarded as unsettled if the to its provisions all the reflection demanded _ right to apply money in the enumerated cases by a just regard for the interests of those of _ is placed on the ground of usage. . . .

our fellow-citizens who have desired its pas- If it be the wish of the people that the sage, and by the respect which is due to a_ construction of roads and canals should be coordinate branch of the Government, but I conducted by the Federal Government, it is am not able to view it in any other light not only highly expedient, but indispensably than as a measure of purely local character; necessary, that a previous amendment of the or, if it can be considered national, that no Constitution, delegating the necessary power further distinction between the appropriate and defining and restricting its exercise with duties of the General and State Governments’ reference to the sovereignty of the States, need be attempted, for there can be no local should be made. Without it nothing exteninterest that may not with equal propriety be sively useful can be effected. The right to

CHEROKEE NATION V. GEORGIA 255 exercise as much jurisdiction as is necessary the collection of tolls to keep them in repair to preserve the works and to raise funds by can not be dispensed with. . . .

139. THE SPOILS OF VICTORY Extract from a Speech by Mr. Marcy 1831

(Niles’ Register, Vol. XLIII, p. 8, September 1, 1832) In the course of the debate on Van Buren’s ap- United States from New York, in the course pointment as Minister to England, Clay referred of the debate on the nomination of Mr. Van to the spoils system in New York and alleged that Buren said—

Van Buren had introduced this political principle “Tt may be, sir, that the politicians of New into national politics. Mr. Marcy, in defending York are not so fastidious as some gentlemen van e uren, announced the notorvous doctrine are, as to disclosing the principles on which that ‘to the victor belong the spoils.” Though the spoils system has been traced back to the Fed- they act. They boldly preach what they praceralist machine in New York politics, this speech 4#ce. When they are contending for viclory, of Marcy’s, observes Dr. Alexander, ‘‘forever .. . they avow their intention of enjoying the confirmed the belief that Van Buren was an fruits of it. If they are defeated, they expect inveterate spoilsman.” For the origins of the to retire from office. If they are successful, spoils system, see H. L. McBain, De Witt Clin- they claim, as a matter of right, the advanton and the Origin of the Spoils System in New tages of success. They see nothing wrong in York; D. R. Fox, The Decline of Aristocracy im the rule that to the VICTOR belongs the

the Politics of New York. spoils of the ENEMY.” Mr. Marcy, one of the senators of the 140. CHEROKEE NATION v. GEORGIA 5 Peters, 1 1831

Suit for injunction to restrain the State of ecution of certain laws of that state, which, Georgia. In 1827 the Cherokee Indians, occupy- as is alleged, go directly to annihilate the ing extensive lands in northwestern Georgia, set Cherokee as a political society, and to seize up a government and declared themselves an im- for the use of Georgia, the lands of the na-

dependent nation. Thereupon the legislature of ti hich b b assured to them bv th Georgia passed resolutions alleging ownership of 101) wc ave Cen ass . y tne all Cherokee territory and extending the laws United States, Mm solemn treaties repeatedly of Georgia over the Cherokee Indians, and an- ™ade and still in force. nulling all laws, usages and customs of the In- If courts were permitted to indulge their dians. The Indians appealed to the Supreme sympathies, a case better calculated to excite Court for an injunction to prevent the execution them can scarcely be imagined. A people, once of these laws. The opinion of Marshall is notable numerous, powerful, and truly independent,

for its definition of the legal relations of the In- found by our ancestors in the quiet and ans with ne onite states government: the yncontrolled possession of an ample domain, ndians constituted not foreign nations but do- gradually sinking beneath our superior policy, mestic dependent nations in a state of pupilage. . f See, Beveridge, Marshall, Vol. IV, p. 539 ff.; A. our arts and our arms, have yielded their

Abel, “History of Events Resulting in Indian lands, by successive treaties, each of which Consolidation West of the Mississippi River,” in contains a solemn guarantee of the residue, Am. Hist. Assoc. Reports, 1906, Vol. I; and ref- until they retain no more of their formerly

erences in Docs. No. 141-142. extensive territory than is deemed necessary

to their comfortable subsistence. To preserve MarsHALL, C. J. This bill is brought by this remnant, the present application is made. the Cherokee nation, praying an injunction Before we can look into the merits of the to restrain the state of Georgia from the ex- case, a preliminary inquiry presents itself.

256 DOCUMENTS OF AMERICAN History Has this court jurisdiction of the cause? The foreign to each other. The term foreign nathird article of the constitution describes the tion is, with strict propriety, applicable by

extent of the judicial power. The second either to the other. But the relation of the section closes an enumeration of the cases to Indians to the United States is marked by which it is extended, with “controversies peculiar and cardinal distinctions which exist

between a state or citizens thereof, and nowhere else. The Indian territory is adforeign states, citizens or subjects.” A sub- mitted to compose a part of the United sequent clause of the same section gives the States. In all our maps, geographical treaties, Supreme court original Jurisdiction, in all histories and laws, it is so considered. In all cases in which a state shall be a party. The our intercourse with foreign nations, in our party defendant may then unquestionably be commercial regulations, in any attempt at

sued in this court. May the plaintiff sue in intercourse between Indians and foreign it? Is the Cherokee nation a foreign state, in nations, they are considered as within the the sense in which that term is used in the jurisdictional limits of the United States, constitution? The counsel for the plaintiffs subject to many of those restraints which have maintained the affirmative of this prop- are imposed upon our own citizens. They Osition with great earnestness and ability. So acknowledge themselves, in their treaties, to

much of the argument as was intended to be under the protection of the United States: prove the character of the Cherokees as a they admit, that the United States shall have state, as a distinct political society, separated the sole and exclusive right of regulating the from others, capable of managing its own af- trade with them, and managing all their affairs and governing itself, has in the opinion fairs as they think proper; and the Cherokees of a majority of the judges, been completely in particular were allowed by the treaty of successful. They have been uniformly treated Hopewell, which preceded the constitution, as a state, from the settlement of our coun- “to send a deputy of their choice, whenever try. The numerous treaties made with them they _ think fit, to congress.” Treaties were by the United States, recognise them as a made with some tribes, by the state of New people capable of maintaining the relations York, under a then unsettled construction of of peace and war, of being responsible in the confederation, by which they ceded all their political character for any violation of their lands to that state, taking back a limtheir engagements, or for any aggression com-__ited grant to themselves, in which they admit

mitted on the citizens of the United States, their dependence. Though the Indians are by any individual of their community. Laws acknowledged to have an unquestionable, and

have been enacted in the spirit of these heretofore unquestioned, right to the lands treaties. The acts of our government plainly they occupy, until that right shall be extinrecognise the Cherokee nation as a state, and guished by a voluntary cession to our gov-

the courts are bound by those acts. ernment; yet it may well be doubted, whether

A question of much more difficulty re- those tribes which reside within the acknowlmains. Do the Cherokees constitute a foreign edged boundaries of the United States can,

state in the sense of the constitution? The with accuracy, be denominated foreign nacounsel have shown conclusively, that they tions. They may, more correctly, perhaps, be

are not a state of the Union, and have in- denominated domestic dependent nations. sisted that, individually, they are aliens, not They occupy a territory to which we assert owing allegiance to the United States. An a title independent of their will, which must aggregate of aliens composing a state must, take effect in point of possession, when their they say, be a foreign state; each individual right of possession ceases. Meanwhile, they

being foreign, the whole must be foreign. are In a state of pupilage; their relation to This argument is imposing, but we must the United States resembles that of a ward

examine it more closely, before we yield to to his guardian. They look to our government it. The condition of the Indians in relation to for protection; rely upon its kindness and its the United States is, perhaps, unlike that of power; appeal to it for relief to their wants; any other two people in existence. In general, and address the president as their great fanations not owing a common allegiance, are_ ther. They and their country are considered

CHEROKEE NATION V. GEORGIA 257 by foreign nations, as well as by ourselves, entirely distinct. We cannot assume that the as being so completely under the sovereignty distinction was lost, in framing a subsequent and dominion of the United States, that any article, unless there be something in its lanattempt to acquire their lands, or to form a guage to authorize the assumption. political connection with them would be con- The counsel for the plaintiffs contend, that sidered by all as an invasion of our territory the words “Indian tribes” were introduced and an act of hostility. These considerations into the article, empowering congress to reggo far to support the opinion, that the fram- ulate commerce, for the purpose of removing

ers of our constitution had not the Indian those doubts in which the management of

tribes in view, when they opened the courts Indian affairs was involved by the language of the Union to controversies between a state of the ninth article of the confederation. Inor the citizens thereof and foreign states. tending to give the whole of managing those In considering this subject, the habits and affairs to the government about to be instiusages of the Indians, in their intercourse tuted, the convention conferred it explicitly; with their white neighbors, ought not to be and omitted those qualifications which ementirely disregarded. At the time the consti- barrassed the exercise of it, as granted in the tution was framed, the idea of appealing to confederation. This may be admitted, withan American court of justice for an assertion out weakening the construction which has of right or a redress of wrong, had perhaps been intimated. Had the Indian tribes been never entered the mind of an Indian or of his foreign nations, in the view of the conven-

tribe. Their appeal was to the tomahawk, or tion, this exclusive power of regulating to the government. This was well understood intercourse with them might have been, and, by the statesmen who framed the constitution most probably, would have been, specifically of the United States, and might furnish some _ given, in language indicating that idea, not in reason for omitting to enumerate them among language contradistinguishing them from the parties who might sue in the courts of the foreign nations. Congress might have been Union. Be this as it may, the peculiar rela- empowered “to regulate commerce with fortions between the United States and the In- eign nations, including the Indian tribes, and

dians occupying our territory are such, that among the several states.” This language we should feel much difficulty in considering would have suggested itself to statesmen who them as designated by the term foreign state, considered the Indian tribes as foreign na-

were there no other part of the constitution tions, and were yet desirous of mentioning which might shed light on the meaning of them particularly. these words. But we think that in construing It has been also said, that the same words them, considerable aid is furnished by that have not necessarily the same meaning atclause in the eighth section of the third ar- tached to them, when found in different parts ticle, which empowers congress to “regulate of the same instrument; their meaning is commerce with foreign nations, and among controlled by the context. This is undoubtedly the several states, and with the Indian tribes.” true. In common language, the same word has

In this clause, they are as clearly contradis- various meanings, and the peculiar sense in tinguished, by a name appropriate to them- which it is used in any sentence, is to be de-

selves, from foreign nations, as from the termined by the context. This may not be several states composing the Union. They equally true with respect to proper names. are designated by a distinct appellation; and ‘Foreign nations” is a general term, the apas this appellation can be applied to neither plication of which to Indian tribes, when of the others, neither can the application dis- used in the American constitution, 1s, at best,

tinguishing either of the others be, in fair extremely questionable. In one article, in construction, applied to them. The objects to which a power is given to be exercised in rewhich the power of regulating commerce gard to foreign nations generally, and to the might be directed, are divided into three dis- Indian tribes particularly, they are mentioned

tinct classes—foreign nations, the several as separate, in terms clearly contradistinstates, and Indian tribes. When forming this guishing them from each other. We perceive article, the convention considered them as_ plainly, that the constitution, in this article,

258 DOCUMENTS OF AMERICAN HIstToORY does not comprehend Indian tribes in the government in their own country, by the general term “foreign nations;” not, we Cherokee nation, this court cannot interpose; presume, because a tribe may not be anation, at least, in the form in which those matters but because it is not foreign to the United are presented.

States. When, afterwards, the term “foreign That part of the bill which respects the state” is introduced, we cannot impute to the land occupied by the Indians, and prays the convention, the intention to desert its former aid of the court to protect their possession, meaning, and to comprehend Indian tribes may be more doubtful. The mere question within it, unless the context force that con- of right might, perhaps, be decided by this struction on us. We find nothing in the con- court, in a proper case, with proper parties. text, and nothing in the subject of the article, But the court is asked to do more than de-

which leads to it. cide on the title. The bill requires us to conThe court has bestowed its best attention trol the legislature of Georgia, and to restrain on this question, and, after mature delibera- the exertion of its physical force. The protion, the majority is of opinion, that an In- priety of such an interposition by the court dian tribe or nation within the United States may be well questioned; it savors too much

is not a foreign state, in the sense of the of the exercise of political power, to be constitution, and cannot maintain an action within the proper province of the Judicial

in the courts of the United States. department. But the opinion on the point A serious additional objection exists to the respecting parties makes it unnecessary to jurisdiction of the court. Is the matter of the decide this question. bill the proper subject for judicial inquiry If it be true, that the Cherokee nation have and decision? It secks to restrain a state from rights, this is not the tribunal in which the forcible exercise of legislative power those rights are to be asserted. If it be true, over a neighboring people, asserting their in- that wrongs have been inflicted, and that still dependence; their right to which the state greater are to be apprehended, this is not the denics. On several of the matters alleged in tribunal which can redress the past or prevent the bill, for example, on the laws making it the future. The motion for an injunction is criminal to exercise the usual powers of self- denied.

141. WORCESTER v. GEORGIA 6 Peters, 515 1832

Error to the Superior Court for the County of | Urion, which has exercised the powers of Gwinnett, Georgia. The facts are stated in the government over a people who deny its opinion below. It is of this opinion that Presi- jurisdiction, and are under the protection of dent Jackson is reputed to have remarked: “John the United States.

Marshall has made his opinion, now let him phe plaintiff is a citizen of the State of

enforce it.” Georgia was so incensed at judicial Vv 4 d to hard labor for f interference with what she considered her sov- ermont, condemned FO Aard 1abor for tour

ereign affairs that she refused to appear before Years in the penitentiary of Georgia under the Court in this case, and refused likewise to Color of an act which he alleges to be repug-

obey the mandate of the Court. For the his- nant to the Constitution, laws, and treaties torical background of the case, see Beveridge, of the United States. Marshall, Vol. IV, p. 547 ff.; E. M. Coulter, The legislative power of a State, the conShort History of Georgia, ch. xvii; W. Lumpkin, trolling power of the Constitution and laws Removal of the Cherokee Indians from Georgia, of the United States, the rights, if they have 2 vols. ; U. B. Phillips, Georgia and State Rights, any, the political existence of a once nvu-

p. 66 ff.Doc. See No. also,140. Cherokee Nation v. State ofthe fulpersona le. th I Georgia, merous and powertul people,

liberty of a citizen, all are involved in the MarsHALL, C. J. This cause, in every point subject now to be considered... . of view in which it can be placed, is of the We must inquire and decide whether the

deepest interest. act of the Legislature of Georgia under The defendant is a State, a member of the which the plaintiff in error has been prose-

REMOVAL OF SOUTHERN INDIANS 259 cuted and condemned, be consistent with, or a right to all the lands within those bound-

repugnant to the Constitution, laws and aries, which is not only acknowledged, but

treaties of the United States. guaranteed by the United States. ...

It has been said at the bar that the acts The Cherokee Nation, then, is a distinct

of the Legislature of Georgia seize on the community, occupying its own territory, with whole Cherokee country, parcel it out among boundaries accurately described, in which the neighboring counties of the State, extend the laws of Georgia can have no force, and her code over the whole country, abolish its which the citizens of Georgia have no right institutions and its laws, and annihilate its to enter but with the assent of the Cherokees

political existence. themselves or in conformity with treaties and

If this be the general effect of the system, with the acts of Congress. The whole interlet us inquire into the effect of the particular course between the United States and this statute and section on which the indictment nation is, by our Constitution and laws, vested

is founded. in the government of the United States.

It enacts that “all white persons, residing The act of the State of Georgia under

within the limits of the Cherokee Nation on which the plaintiff in error was prosecuted is the Ist day of March next, or at any time consequently void, and the judgement a null-

thereafter, without a licence or permit from ity... . The Acts of Georgia are repugnant his excellency the governor... and who to the Constitution, laws, and treaties of the shall not have taken the oath hereinafter re- United States. quired, shall be guilty of a high misdemeanor, They interfere forcibly with the relations ind upon conviction thereof, shall be pun- established between the United States and ished by confinement to the penitentiary at the Cherokee Nation, the regulation of which

hard labor for a term not less than four according to the settled principles of our

years.” ... Constitution, are committed exclusively to The extraterritorial power of every Legis- the government of the Union.

lature being limited in its action to its own They are in direct hostility with treaties, citizens or subjects, the very passage of this repeated in a succession of years, which act is an assertion of jurisdiction over the mark out the boundary that separates the Cherokee Nation, and of the rights and pow- Cherokee country from Georgia; guarantee

ers consequent on jurisdiction. to them all the land within their boundary;

The first step, then, in the inquiry which solemnly pledge the faith of the United the Constitution and the laws impose on this States to restrain their citizens from tres-

court, is an examination of the rightfulness passing on it; and recognize the pre-

of this claim... . existing power of the nation to govern itFrom the commencement of our govern- _ self.

ment Congress has passed acts to regulate They are in equal hostility with the acts of trade and intercourse with the Indians; which Congress for regulating this intercourse, and treat them as nations, respect their rights, giving effect to the treaties.

and manifest a firm purpose to afford that The forcible seizure and abduction of the protection which treaties stipulate. All these plaintiff, who was residing in the nation with acts, and especially that of 1802, which is its permission, and by authority of the Presistill in force, manifestly consider the several dent of the United States, is also a violation Indian nations as distinct political commu- of the acts which authorize the chief magis-

nities, having territorial boundaries, within trate to exercise this authority... . which their authority is exclusive, and having Judgement reversed.

142. REMOVAL OF SOUTHERN INDIANS TO INDIAN TERRITORY Extract from Jackson’s Seventh Annual Message to Congress December 7, 1835 (Richardson, ed. Messages and Papers, Vol. IU], p. 171 ff.) Georgia’s Indian policy, and the refusal of Jack- _terpretation of the rights of the Indians, led to

son to sustain the Supreme Court in its in-- the plan of removing the remarning Creeks,

260 DOCUMENTS OF AMERICAN History Cherokees, and other Indian tribes of the South The plan for their removal and reéstablishto a reservation west of the Mississippi. This ment is founded upon the knowledge we have policy had been outlined by Jackson in his first gained of their character and habits, and has message to Congress, and in 1830 Congress had heen dictated by a spirit of enlarged liberality. appropriated half a million dollars for the re- A territory exceeding in extent that relingress created a special Indian Territory, and by quished has been granted to each tribe. Of its a treaty of December 29, 1835, the Indians sur- Climate, fertility, and capacity to support an rendered their lands east of the Mississippi in Indian population the representations are return for five million dollars, the expenses of highly favorable. To these districts the Inremoval, and land. See G. Foreman, Indian Re- dians are removed at the expense of the moval; G. Foreman, Indians and Pioneers, ch. United States, and with certain supplies of xx1; W. MacDonald, Jacksonian Democracy, clothing, arms, ammunition, and other indis-

moval of the Indians to the west. In 1834 Con- , ;

ch. x. pensable articles; they are also furnished gratuitously with provisions for the period of WASHINGTON, December 7, 1835. a year after their arrival at their new homes.

.. . The plan of removing the aboriginal In that time, from the nature of the counpeople who yet remain within the settled por- _ try and of the products raised by them, they

. tions of the United States to the country can subsist themselves by agricultural labor, west of the Mississippi River approaches its if they choose to resort to that mode of life; consummation. It was adopted on the most if they do not they are upon the skirts of the mature consideration of the condition of this great prairies, where countless herds of bufrace, and ought to be persisted in till the ob- falo roam, and a short time suffices to adapt ject is accomplished, and prosecuted with as their own habits to the changes which a much vigor as a just regard to their circum- change of the animals destined for their food stances will permit, and as fast as their con- may require. Ample arrangements have also sent can be obtained. All preceding experi- been made for the support of schools; in ments for the improvement of the Indians some instances council houses and churches have failed. It seems now to be an established are to be erected, dwellings constructed for fact that they can not live in contact with a the chiefs, and mills for common use. Funds civilized community and prosper. Ages of have been set apart for the maintenance of fruitless endeavors have at length brought us the poor; the most necessary mechanical to a knowledge of this principle of inter- arts have been introduced, and blacksmiths, communication with them. The past we can gunsmiths, wheelwrights, millwrights, etc., not recall, but the future we can provide for. are supported among them. Steel and iron, Independently of the treaty stipulations into and sometimes salt, are purchased for them,

which we have entered with the various and plows and other farming utensils, dotribes for the usufructuary rights they have mestic animals, looms, spinning wheels, ceded to us, no one can doubt the moral duty cards, etc., are presented to them. And beof the Government of the United States to sides these beneficial arrangements, annuities protect and if possible to preserve and per- are in all cases paid, amounting in some inpetuate the scattered remnants of this race stances to more than $30 for each individual which are left within our borders. In the dis- _ of the tribe, and in all cases sufficiently great, charge of this duty an extensive region in the if justly divided and prudently expended, to West has been assigned for their permanent enable them, in addition to their own exerresidence. It has been divided into districts tions, to live comfortably. And as a stimulus and allotted among them. Many have al- for exertion, it is now provided by law that

ready removed and others are preparing to ‘‘in all cases of the appointment of inter-

go, and with the exception of two small bands __preters or other persons employed for the

living in Ohio and Indiana, not exceeding benefit of the Indians a preference shall be 1,500 persons, and of the Cherokees, all the given to persons of Indian descent, if such tribes on the east side of the Mississippi, and can be found who are properly qualified for

extending from Lake Michigan to Florida, the discharge of the duties.” . have entered into engagements which will Such are the arrangements for the physical

lead to their transplantation. comfort and for the moral improvement of

SOUTH CAROLINA ORDINANCE OF NULLIFICATION 261 the Indians. The necessary measures for their citizens, and guarding the Indians as far as political advancement and for their separa- possible from those evils which have brought

tion from our citizens have not been neg- them to their present condition. Summary lected. The pledge of the United States has authority has been given by law to destroy been given by Congress that the country des- all ardent spirits found in their country, lined for the residence of this people shall be without waiting the doubtful result and slow forever ‘‘secured and guaranteed to them.” A process of a legal seizure. I consider the abcountry west of Missouri and Arkansas has solute and unconditional interdiction of this been assigned to them, into which the white article among these people as the first and settlements are not to be pushed. No political great step in their melioration. Halfway communities can be formed in that extensive measures will answer no purpose. These can region, except those which are established by not successfully contend against the cupidity

the Indians themselves or by the United of the seller and the overpowering appetite States for them and with their concurrence. of the buyer. And the destructive effects of A barrier has thus been raised for their pro- the traffic are marked in every page of the

tection against the encroachment of our history of our Indian intercourse... . 143. SOUTH CAROLINA ORDINANCE OF NULLIFICATION November 24, 1832 (Statutes at Large of South Carolina, Vol. I, p. 329 ff.)

The tariff of July 14, 1832 was only less un- duties on articles similar to those intended popular than the “tariff of abominations” of to be protected, hath exceeded its just pow1828. The legislature of South Carolina met in ers under the Constitution, which confers on special session in October, 1832 and provided for j4 no authority to afford such protection, and

ation convention consider the tariff: conven- bth the true ae meaning met into November andthe adopted theviolated Ordinance ; ; and intent of Nullification. For Jackson’s Proclamation, see of the Constitution, which provides for equal-

Doc. No. 144. See, D. F. Houston, Critical Study tY In imposing the burthens of taxation of Nullification in South Carolina; C.S. Boucher, upon the several States and portions of the Nullification Movement in South Carolina; J.G. Confederacy: And whereas the said Congress, Van Deusen, Economic Basis of Disunion in exceeding its just power to impose taxes and

South Carolina; H. Von Holst, Calhoun; G. collect revenue for the purpose of effecting Hunt, Calhoun; J. S. Bassett, Andrew Jackson, and accomplishing the specific objects and

Vol. II; J. Parton, Andrew Jackson, Vol. Il; purposes which the Constitution of the y Sowers, Party Batiles of the Jackson Period, United States authorizes it to effect and ac-

complish, hath raised and collected unneces-

An Ordinance to Nullify certain acts of the sary revenue for objects unauthorized by the Congress of the United States, purport- Constitution:— ing to be laws laying duties and imposts We, therefore, the people of the State of on the importation of foreign commodi- South Carolina in Convention assembled, do

tes. declare and ordain, ... That the several

Whereas the Congress of the United States, acts and parts of acts of the Congress of the by various acts, purporting to be acts lay- United States, purporting to be laws for the ing duties and imposts on foreign imports, imposing of duties and imposts on the imporbut in reality intended for the protection of _ tation of foreign commodities, . . . and, more

domestic manufactures, and the giving of especially, . . . [the tariff acts of 1828 and bounties to classes and individuals engaged 1832]... , are unauthorized by the Constiin particular employments, at the expense tution of the United States, and violate the and to the injury and oppression of other true meaning and intent thereof, and are null,

classes and individuals, and by wholly ex- void, and no law, nor binding upon this State, cmpting from taxation certain foreign com- its officers or citizens; and all promises, con. modities, such as are not produced or manu- tracts, and obligations, made or entered into, —

factured in the United States, to afford a or to be made or entered into, with purpose pretext for imposing higher and excessive to secure the duties imposed by the said acts,

262 DOCUMENTS OF AMERICAN HIsTORY and all judicial proceedings which shall be the same; and on the neglect or omission of hereafter had in affirmance thereof, are and any such person or persons so to do, his or

shall be held utterly null and void. their office or offices shall be forthwith va-

And it is further Ordained, That it shall cated, . . . and no person hereafter elected not be lawful for any of the constituted au- to any office of honor, profit, or trust, civil thorities, whether of this State or of the or military, (members of the Legislature ex-

United States, to enforce the payment of cepted), shall, until the Legislature shall duties imposed by the said acts within the otherwise provide and direct, enter on the limits of this State; but it shall be the duty execution of his office, . . . until he shall, of the Legislature to adopt such measures in like manner, have taken a similar oath; and pass such acts as may be necessary to and no juror shall be empannelled in any of give full effect to this Ordinance, and to pre- the courts of this State, in any cause in which

vent the enforcement and arrest the opera- shall be in question this Ordinance, or any tion of the said acts and parts of acts of the act of the Legislature passed in pursuance Congress of the United States within the thereof, unless he shall first, in addition to limits of this State, from and after the ist the usual oath, have taken an oath that he

day of February next, .. . will well and truly obey, execute, and enforce

And it is further Ordained, That in no case _ this Ordinance, and such act or acts of the of law or equity, decided in the courts of this Legislature as may be passed to carry the State, wherein shall be drawn in question the same into operation and effect, according to authority of this ordinance, or the validity of | the true intent and meaning thereof. such act or acts of the Legislature as may And we, the People of South Carolina, to be passed for the purpose of giving effect the end that it may be fully understood by thereto, or the validity of the aforesaid acts the Government of the United States, and of Congress, imposing duties, shall any ap- the people of the co-States, that we are depeal be taken or allowed to the Supreme termined to maintain this, our Ordinance and Court of the United States, nor shall any Declaration, at every hazard, Do further Decopy of the record be printed or allowed for clare that we will not submit to the applicathat purpose; and if any such appeal shall be _ tion of force, on the part of the Federal Gov-

attempted to be taken, the courts of this ernment, to reduce this State to obedience; State shall proceed to execute and enforce but that we will consider the passage, by their judgments, according to the laws and Congress, of any act... to coerce the usages of the State, without reference to such State, shut up her ports, destroy or harass attempted appeal, and the person or persons her commerce, or to enforce the acts hereby attempting to take such appeal may be dealt declared to be null and void, otherwise than

with as for a contempt of the court. through the civil tribunals of the country, as

And it 1s further Ordained, That all per- inconsistent with the longer continuance of sons now holding any office of honor, profit, South Carolina in the Union: and that the

or trust, civil or military, under this State, people of this State will thenceforth hold (members of the Legislature excepted), shall, themselves absolved from all further obliga-

within such time, and in such manner as the tion to maintain or preserve their political Legislature shall prescribe, take an oath well connexion with the people of the other States,

and truly to obey, execute, and enforce, this and will forthwith proceed to organize a Ordinance, and such act or acts of the Legis- separate Government, and do all other acts lature as may be passed in pursuance thereof, and things which sovereign and independent according to the true intent and meaning of States may of right to do.

144. JACKSON’S PROCLAMATION TO THE PEOPLE OF SOUTH CAROLINA December 10, 1832

(Richardson, ed. Messages and Papers, Vol. II, p. 640 ff.) Jackson’s Proclamation was primarily concerned January 16, 1833 Jackson reported to Congress with the constitutional issues of nullification. on nullification and presented concrete recom-

JACKSON’S PROCLAMATION TO PEOPLE OF S.C. 263 mendations for action. See, Richardson, Messages declaring the course which duty will require

and Papers, Vol. Il, p. 610 ff. For references, me to pursue, and, appealing to the under-

see Doc. No. 143. standing and patriotism of the people, warn Whereas a convention assembled in the them of the consequences that must inevitaState of South Carolina have passed an or- bly result from an observance of the dictates dinance by which they declare “that the sev- of the convention... .

eral acts and parts of acts of the Congress The ordinance is founded, not on the inof the United States purporting to be laws defeasible right of resisting acts which are for the imposing of duties and imposts on plainly unconstitutional and too oppressive the importation of foreign commodities, ... to be endured, but on the strange position are unauthorized by the Constitution of the that any one State may not only declare an United States, and violate the true meaning act of Congress void, but prohibit its execuand intent thereof, and are null and void and‘ tion; that they may do this consistently with no law,” nor binding on the citizens of that the Constitution; that the true construction State or its officers; and by the said ordi- of that instrument permits a State to retain nance it is further declared to be unlawful its place in the Union and yet be bound by for any of the constituted authorities of the no other of its laws than those it may choose State or of the United States to enforce the to consider as constitutional. It is true, they payment of the duties imposed by the said add, that to justify this abrogation of a law acts within the same State, and that it is the it must be palpably contrary to the Constituduty of the legislature to pass such laws as tion; but it is evident that to give the right may be necessary to give full effect to the of resisting laws of that description, coupled

said ordinance; and with the uncontrolled right to decide what Whereas by the said ordinance it is further laws deserve that character, is to give the

ordained that in no case of law or equity power of resisting all laws; for as by the decided in the courts of said State wherein theory there is no appeal, the reasons alleged shall be drawn in question the validity of the by the State, good or bad, must prevail. If it said ordinance, or of the acts of the legisla- should be said that public opinion is a sufture that may be passed to give it effect, or ficient check against the abuse of this power, of the said laws of the United States, no ap- it may be asked why it is not deemed a sufpeal shall be allowed to the Supreme Court fficient guard against the passage of an un-

of the United States, nor shall any copy of constitutional act by Congress? There is, the record be permitted or allowed for that however, a restraint in this last case which purpose, and that any person attempting to makes the assumed power of a State more take such appeal shall be punished as for indefensible, and which does not exist in the

contempt of court; and... other. There are two appeals from an un-

Whereas the said ordinance prescribes to constitutional act passed by Congress—one the people of South Carolina a course of to the judiciary, the other to the people and conduct in direct violation of their duty as the States. There is no appeal from the State citizens of the United States, contrary to the decision in theory, and the practical illustralaws of their country, subversive of its Con- tion shows that the courts are closed against stitution, and having for its object the de- an application to review it, both judges and

struction of the Union— jurors being sworn to decide in its favor. To preserve this bond of our political ex- But reasoning on this subject is superfluous istence from destruction, to maintain in- when our social compact, in express terms, violate this state of national honor and pros- declares that the laws of the United States, perity, and to justify the confidence my its Constitution, and treaties made under it fellow-citizens have reposed in me, I, Andrew are the supreme law of the land, and, for Jackson, President of the United States, have greater caution, adds “that the judges in thought proper to issue this my proclamation, every State shall be bound thereby, anything

stating my views of the Constitution and in the constitution or laws of any State to | laws applicable to the measures adopted by the contrary notwithstanding.” And it may the convention of South Carolina and to the’ be asserted without fear of refutation that reasons they have put forth to sustain them, no federative government could exist without

264 DOCUMENTS OF AMERICAN HisToRy a similar provision. Look for a moment to formed for important objects that are anthe consequence. If South Carolina considers nounced in the preamble, made in the name

the revenue laws unconstitutional and has a and by the authority of the people of the right to prevent their execution in the port United States, whose delegates framed and of Charleston, there would be a clear consti- whose conventions approved it. The most tutional objection to their collection in every important among these objects—that which other port; and no revenue could be col- is placed first in rank, on which all the others lected anywhere, for all imposts must be rest—is “to form a more perfect union.” equal. It is no answer to repeat that an un- Now, is it possible that even if there were no constitutional law is no law so long as the express provision giving supremacy to the question of its legality is to be decided by Constitution and laws of the United States the State itself, for every law operating in- over those of the States, can it be conceived juriously upon any local interest will be per- that an instrument made for the purpose of haps thought, and certainly represented, as “forming a more perfect union” than that of unconstitutional, and, as has been shown, the Confederation could be so constructed by

there is no appeal. the assembled wisdom of our country as to

If this doctrine had been established at an substitute for that Confederation a form of earlier day, the Union would have been dis- government dependent for its existence on solved in its infancy. The excise law in Penn- the local interest, the party spirit, of a State, sylvania, the embargo and nonintercourse or of a prevailing faction in a State? Every law in the Eastern States, the carriage tax in man of plain, unsophisticated understanding Virginia, were all deemed unconstitutional, who hears the question will give such an anand were more unequal in their operation swer as will preserve the Union. Metaphysical than any of the laws now complained of; subtlety, in pursuit of an impracticable thebut, fortunately, none of those States dis- ory, could alone have devised one that is covered that they had the right now claimed calculated to destroy it. by South Carolina. The war into which we I consider, then, the power to annul a law were forced to support the dignity of the of the United States, assumed by one State, nation and the rights of our citizens might «zmcompatible with the existence of the Union, have ended in defeat and disgrace, instead of contradicted expressly by the letter of the victory and honor, if the States who sup- Constitution, unauthorized by its spirit, inposed it a ruinous and unconstitutional meas- consistent with every principle on which it ure had thought they possessed the right of was founded, and destructive of the great nullifying the act by which it was declared object for which it was formed. and denying supplies for its prosecution. After this general view of the leading prinHardly and unequally as those measures bore ciple, we must examine the particular appliupon several members of the Union, to the cation of it which is made in the ordinance.

legislatures of none did this efficient and The preamble rests its justification on peaceable remedy, as it is called, suggest these grounds: It assumes as a fact that the itself. The discovery of this important fea- obnoxious laws, although they purport to be ture in our Constitution was reserved to the laws for raising revenue, were in reality inpresent day. To the statesmen of South Caro- tended for the protection of manufactures, lina belongs the invention, and upon the citi- which purpose it asserts to be unconstituzens of that State will unfortunately fall the tional; that the operation of these laws is un-

evils of reducing it to practice. equal; that the amount raised by them is

If the doctrine of a State veto upon the — greater than is required by the wants of the laws of the Union carries with it internal evi- Government; and, finally, that the proceeds dence of its impracticable absurdity, our are to be applied to objects unauthorized by constitutional history will also afford abun- the Constitution. These are the only causes

dant proof that it would have been repu- alleged to justify an open opposition to the

diated with indignation had it been proposed laws of the country and a threat of seceding

to form a feature in our Government. from the Union if any attempt should be Our present Constitution was formed... made to enforce them. The first virtually in vain if this fatal doctrine prevails. It was acknowledges that the law in question was

JACKSON’S PROCLAMATION TO PEOPLE OF S.C. 265 passed under a power expressly given by the sacrifices of local interest, of State prejuConstitution to lay and collect imposts; but dices, of personal animosities, that were made its constitutionality is drawn in question to bring it into existence, will again be pafrom the motives of those who passed it. triotically offered for its support. However apparent this purpose may be in The two remaining objections made by the the present case, nothing can be more dan- ordinance to these laws are that the sums gerous than to admit the position that an un- intended to be raised by them are greater constitutional purpose entertained by the than are required and that the proceeds will members who assent to a law enacted under be unconstitutionally employed... . 2 constitutional power shall make that law The ordinance, with the same knowledge void. For how is that purpose to be ascer- of the future that characterizes a former obtained? Who is to make the scrutiny? How _ jection, tells you that the proceeds of the tax often may bad purposes be falsely imputed, will be unconstitutionally applied. If this in how many cases are they concealed by could be ascertained with certainty, the obfalse professions, in how many is no declara- jection would with more propriety be retion of motive made? Admit this doctrine, served for the law so applying the proceeds, and you give to the States an uncontrolled but surely can not be urged against the laws right to decide, and every law may be an- levying the duty. nulled under this pretext. If, therefore, the These are the allegations contained in the absurd and dangerous doctrine should be ad- ordinance. Examine them seriously, my mitted that a State may annul an unconsti- fellow-citizens; judge for yourselves. I aptutional law, or one that it deems such, it peal to you to determine whether they are so

will not apply to the present case. clear, so convincing, as to leave no doubt of The next objection is that the laws in their correctness; and even if you should question operate unequally. This objection come to this conclusion, how far they justify may be made with truth to every law that the reckless, destructive course which you has been or can be passed. The wisdom of are directed to pursue. Review these objecman never yet contrived a system of taxation tions and the conclusions drawn from them that would operate with perfect equality. If once more. What are they? Every law, then, the unequal operation of a law makes it for raising revenue, according to the South unconstitutional, and if all laws of that de- Carolina ordinance, may be rightfully anscription may be abrogated by any State for nulled, unless it be so framed as no law ever that cause, then, indeed, is the Federal Con- will or can be framed. Congress have a right stitution unworthy of the slightest effort for to pass laws for raising revenue and each its preservation... . Nor did the States, State have a right to oppose their execution— when they severally ratified it, do so under two rights directly opposed to each other; the impression that a veto on the laws of the and yet is this absurdity supposed to be United States was reserved to them or that contained in an instrument drawn for the they could exercise it by implication. Search express purpose of avoiding collisions bethe debates in all their conventions, examine tween the States and the General Governthe speeches of the most zealous opposers of ment by an assembly of the most enlightened Federal authority, look at the amendments statesmen and purest patriots ever embodied that were proposed; they are all silent—not for a similar purpose. a syllable uttered, not a vote given, not a In vain have these sages declared that Conmotion made to correct the explicit suprem- gress shall have power to lay and collect acy given to the laws of the Union over those taxes, duties, Imposts, and excises; in vain of the States, or to show that implication, as have they provided that they shall have is now contended, could defeat it. No; we power to pass laws which shall be necessary have not erred. The Constitution is still the and proper to carry those powers into execu-

object of our reverence, the bond of our tion, that those laws and that Constitution Union, our defense in danger, the source of shall be the “supreme law of the land, and our prosperity in peace. It shall descend, as that the judges in every State shall be bound we have received it, uncorrupted by sophis- thereby, anything in the constitution or laws tical construction, to our posterity; and the of any State to the contrary notwithstand-

266 DOCUMENTS OF AMERICAN History ing;” ... if a bare majority of the voters the States or in any other manner, its charin any one State may, on a real or supposed acter is the same. It is a Government in knowledge of the intent with which a law has which all the people are represented, which been passed, declare themselves free from its operates directly on the people individually,

operation; .. . not upon the States; they retained all the The Constitution declares that the judicial power they did not grant. But each State, powers of the United States extend to cases having expressly parted with so many powers arising under the laws of the United States, as to constitute, jointly with the other States,

and that such laws, the Constitution, and a single nation, can not, from that period, treaties shall be paramount to the State con- possess any right to secede, because such stitutions and laws. The judiciary act pre- secession does not break a league, but describes the mode by which the case may be _ stroys the unity of a nation; and any injury

brought before a court of the United States to that unity Is not only a breach which by appeal when a State tribunal shall decide would result from the contravention of a against this provision of the Constitution. compact, but it is an offense against the whole The ordinance declares there shall be no ap- Union. To say that any State may at pleasure

peal—makes the State law paramount to the secede from the Union is to say that the ! Constitution and laws of the United States, United States are not a nation, because it | forces judges and jurors to swear that they would be a solecism to contend that any part

will disregard their provisions, and even of a nation might dissolve its connection makes it penal in a suitor to attempt relief with the other parts, to their injury or ruin, by appeal. It further declares that it shall without committing any offense. Secession, not be lawful for the authorities of the like any other revolutionary act, may be United States or of that State to enforce the morally justified by the extremity of oppayment of duties imposed by the revenue pression; but to call it a constitutional right

Jaws within its limits. is confounding the meaning of terms, and can

Here is a law of the United States, not only be done through gross error or to deeven pretended to be unconstitutional, re- ceive those who are willing to assert a right, pealed by the authority of a small majority but would pause before they made a revoluof the voters of a single State. Here is a pro- tion or incur the penalties consequent on a vision of the Constitution which is solemnly failure.

abrogated by the same authority. Because the Union was formed by a comOn such expositions and reasonings the or- pact, it is said the parties to that compact dinance grounds not only an assertion of the may, when they feel themselves aggrieved, right to annul the laws of which it complains, depart from it; but it is precisely because it but to enforce it by a threat of seceding is a compact that they can not. A compact is from the Union if any attempt is made to an agreement or binding obligation. It may

execute them. by its terms have a sanction or penalty for

This right to secede is deduced from the its breach, or it may not. If it contains no nature of the Constitution, which, they say, sanction, it may be broken with no other is a compact between sovereign States who consequence than moral guilt; if it have a have preserved their whole sovereignty and sanction, then the breach incurs the desigtherefore are subject to no superior; that nated or implied penalty. A league between because they made the compact they can independent nations generally has no sanction break it when in their opinion it has been other than a moral one; or if it should condeparted from by the other States. Fallacious tain a penalty, as there is no common suas this course of reasoning is, it enlists State perior it can not be enforced. A government,

pride and finds advocates in the honest on the contrary, always has a sanction, exprejudices of those who have not studied the press or implied; and in our case it is both nature of our Government sufficiently to see necessarily implied and expressly given. An

the radical error on which it rests... . attempt, by force of arms, to destroy a govThe Constitution of the United States, ernment is an offense, by whatever means the then, forms a government, not a league; and constitutional compact may have _ been whether it be formed by compact between formed; and such government has the right

JACcCKSON’S PROCLAMATION TO PEOPLE OF S.C. 267 by the law of self-defense to pass acts for gates toa State convention; that convention punishing the offender, unless that right is has ordained that all the revenue laws of modified, restrained, or resumed by the con- the United States must be repealed, or that stitutional act. In our system, although it is they are no longer a member of the Union. modified in the case of treason, yet authority The governor of that State has recommended is expressly given to pass all laws necessary to the legislature the raising of an army to to carry its powers into effect, and under this carry the secession into effect, and that he grant provision has been made for punishing may be empowered to give clearances to vesacts which obstruct the due administration sels in the name of the State. No act of vio-

of the laws. lent opposition to the laws has yet been

It would seem superfluous to add anything committed, but such a state of things 1s to show the nature of that union which con- hourly apprehended. And it is the intent of nects us, but as erroneous opinions on this this instrument to proclaim, not only that the subject are the foundation of doctrines the duty imposed on me by the Constitution “to

most destructive to our peace, I must give take care that the laws be faithfully exesome further development to my views on cuted” shall be performed to the extent of

this subject... . the powers already vested in me by law, The States severally have not retained their or of such others as the wisdom of Congress entire sovereignty. It has been shown that in shall devise and intrust to me for that purbecoming parts of a nation, not members of pose, but to warn the citizens of South Caroa league, they surrendered many of their lina who have been deluded into an opposiessential parts of sovereignty. The right to tion to the laws of the danger they will incur make treaties, declare war, levy taxes, exer- by obedience to the illegal and disorganizing cise exclusive judicial and legislative powers, ordinance of the convention; to exhort those were all of them functions of sovereign who have refused to support it to persevere power. The States, then, for all these impor- in their determination to uphold the Contant purposes were no longer sovereign... . stitution and laws of their country; and to How, then, with all these proofs that under point out to all the perilous situation into all changes of our position we had, for des- which the good people of that State have ignated purposes and with defined powers, been led, and that the course they are urged created national governments, how is it that to pursue is one of ruin and disgrace to the the most perfect of those several modes of very State whose rights they affect to sup-

union should now be considered as a mere- port.... league that may be dissolved at pleasure? It If your leaders could succeed in estabis from an abuse of terms. Compact is used lishing a separation, what would be your as synonymous with league, although the situation? Are you united at home? Are you true term is not employed, because it would free from the apprehension of civil discord, at once show the fallacy of the reasoning. It with all its fearful consequences? Do our

would not do to say that our Constitution neighboring republics, every day suffering was only a league, but it is labored to prove some new revolution or contending with some it a compact (which in one sense it is) and new insurrection, do they excite your envy?

then to argue that as a league is a compact But the dictates of a high duty oblige me every compact between nations must of solemnly to announce that you can not succourse be a league, and that from such an ceed. The laws of the United States must be engagement every sovereign power has a_ executed. I have no discretionary power on right to recede. But it has been shown that the subject; my duty is emphatically proin this sense the States are not sovereign, nounced in the Constitution. Those who told and that even if they were, and the national you that you might peaceably prevent their Constitution had been formed by compact, execution deceived you; they could not have there would be no right in any one State to been deceived themselves. They know that a

exonerate itself from its obligations. forcible opposition could alone prevent the This, then, is the position in which we execution of the laws, and they know that stand: A small majority of the citizens of | such opposition must be repelled. Their ob-

one State in the Union have elected dele- ject is disunion. But be not deceived by

268 DOCUMENTS OF AMERICAN HISTORY names. Disunion by armed force is treason. Having the fullest confidence in the justness Are you really ready to incur its guilt? If of the legal and constitutional opinion of my you are, on the heads of the instigators of | duties which has been expressed, I rely with the act be the dreadful consequences; on their equal confidence on your undivided support heads be the dishonor, but on yours may fall in my determination to execute the laws, to the punishment. On your unhappy State will preserve the Union by all constitutional inevitably fall all the evils of the conflict you means, to arrest, if possible, by moderate and force upon the Government of your country. firm measures the necessity of a recourse to It can not accede to the mad project of dis- force; and if it be the will of Heaven that union, of which you would be the first vic- the recurrence of its primeval curse on man

tims. Its [First Magistrate can not, if he for the shedding of a brother’s blood should would, avoid the performance of his duty. fall upon our land, that it be not called down

The consequence must be fearful for you, by any offensive act on the part of the distressing to your fellow-citizens here and United States. to the friends of good government through- Fellow-citizens, the momentous case is beout the world. Its enemies have beheld our fore you.'On your undivided support of your prosperity with a vexation they could not Government depends the decision of the great conceal; it was a standing refutation of their question it involves—whether your sacred slavish doctrines, and they will point to our Union will be preserved and the blessing it discord with the triumph of malignant joy. secures to us as one people shall be perpetu-

It is yet in your power to disappoint ated. No one can doubt that the unanimity

them... . with which that decision will be expressed Fellow-citizens of the United States, the will be such as to inspire new confidence in threat of unhallowed disunion, the names of republican institutions, and that the prudence, those once respected by whom it is uttered, the wisdom, and the courage which it will the array of military force to support it, de- bring to their defense will transmit them unnote the approach of a crisis in our affairs on impaired and invigorated to our children.

which the continuance of our unexampled May the Great Ruler of Nations grant that prosperity, our political existence, and per- the signal blessings with which He has fahaps that of all free governments may de- vored ours may not, by the madness of party pend. The conjuncture. demanded a free, a or personal ambition, be disregarded and full, and explicit enunciation, not only of my lost; and may His wise providence bring intentions, but of my principles of action; those who have produced this crisis to see and as the claim was asserted of a right by a___ the folly before they feel the misery of civil

State to annul the laws of the Union, and _ strife, and inspire a returning veneration for even to secede from it at pleasure, a frank that Union which, if we may dare to peneexposition of my opinions in relation to the trate His designs, He has chosen as the only origin and form of our Government and the means of attaining the high destinies to construction I give to the instrument by which we may reasonably aspire.

which it was created seemed to be proper. ANDREW JACKSON.

145. SOUTH CAROLINA’S REPLY TO JACKSON’S PROCLAMATION December 20, 1832 (Statutes at Large of South Carolina Vol. I, p. 356-7) The Committee on federal relations, to not authorize him in that mode, to interfere which was referred the proclamation of the whenever he may think fit, in the affairs of President of the United States, has had it the respective states, or that he should use under consideration, and recommends the _ it as a means of promulgating executive exadoption of the following resolutions: positions of the Constitution, with the sancResolved, That the power vested by the’ tion of force thus superseding the action of Constitution and laws in the President of the other departments of the general government. United States, to issue his proclamation, does Resolved, That it is not competent to the

NULLIFICATION OF THE FORCE BILL 269 President of the United States, to order by proclamation, of his personal feelings and proclamation the constituted authorities of a relations towards the State of South Carostate to repeal their legislation, and that the _ lina, is rather an appeal to the loyalty of late attempt of the President to do so is un- subjects, than to the patriotism of citizens, constitutional, and manifests a disposition to and is a blending of official and individual arrogate and exercise a power utterly destruc- character, heretofore unknown in our state

tive of liberty. papers, and revolting to our conception of

Resolved, That the opinions of the Presi- political propriety. dent, in regard to the rights of the States, are Resolved, That the undisguised indulgence erroncous and dangerous, leading not only to of personal hostility in the said proclamation the establishment of a consolidated govern- would be unworthy of the animadversion of ment in the stead of our free confederacy, this legislature, but for the seldom and ofbut to the concentration of all powers in the ficial form of the instrument which is made

chief executive. its vehicle.

Resolved, That the proclamation of the Resolved, That the principles, doctrines

President is the more extraordinary, that he and purposes, contained in the said proclamahad silently, and as it is supposed, with en- tion are inconsistent with any just idea of a

tire approbation, witnessed our sister state limited government, and subversive of the of Georgia avow, act upon, and carry into rights of the states and liberties of the peoeffect, even to the taking of life, principles ple, and if submitted to in silence would lay identical with those now denounced by him a broad foundation for the establishment of

in South Carolina. monarchy.

Resolved, That each state of the Union Resolved, That while this legislature has

has the right, whenever it may deem such a witnessed with sorrow such a relaxation of course necessary for the preservation of its the spirit of our institutions, that a Presiliberties or vital interests, to secede peaceably dent of the United States dare venture upon from the Union, and that there is no con- this high handed measure, it regards with stitutional power in the general government, indignation the menaces which are directed much less in the executive department, of against it, and the concentration of a standthat government, to retain by force such ing army on our borders—that the state will

state in the Union. repel force by force, and relying upon the Resolved, That the primary and para- blessings of God, will maintain its liberty at

mount allegiance of the citizens of this state, all hazards.

native or adopted, is of right due to this Resolved, That copies of these resolutions

state. be sent to our members in Congress, to be Resolved, That the declaration of the laid before that body. President of the United States in his said

146. NULLIFICATION OF THE FORCE BILL March 18, 1833 (Statutes at Large of South Carolina, Vol. I, p. 400-401)

AN ORDINANCE ports,” approved the second day of March, To Nullify an Act of the Congress of the 1833, is unauthorized by the Constitution of United States, entitled “An Act further to the United States, subversive of that Conprovide for the Collection of Duties on stitution, and destructive of public liberty; Imports,’ commonly called the Force Bill. and that the same is, and shall be deemed, null and void, within the limits of this State; We, the People of the State of South Caro- and it shall be the duty of the Legislature, lina in Convention assembled, do Declare and at such time as they may deem expedient, to Ordain, that the Act of the Congress of the adopt such measures and pass such acts as United States, entitled “An Act further to may be necessary to prevent the enforcement provide for the collection of duties on im- thereof, and to inflict proper penalties on

270 DOCUMENTS OF AMERICAN HISTORY any person who shall do any act in execution is hereby empowered, from time to time, or enforcement of the same within the limits when they may deem it proper, to provide

of this State. for the administration to the citizens and We do further Declare and Ordain, That officers of the State, or such of the said ofthe allegiance of the citizens of this State, ficers as they may think fit, of suitable oaths while they continue such, is due to the said or affirmations, binding them to the observ-

State; and that obedience only, and not al- ance of such allegiance: and abjuring all legiance, is due by them to any other power other allegiance; and, also, to define what or authority, to whom a control over them _ shall amount to a violation of their allegiance,

has been, or may be delegated by the State; and to provide the proper punishment for and the General Assembly of the said State such violation.

147. JACKSON’S VETO OF THE BANK BILL July 10, 1832 (Richardson, ed. Messages and Papers, Vol. II, p. 576 ff.) The Bill for the recharter of the Second Bank advantages and obviating these objections. I passed the Senate, June 11, and the House, July sincerely regret that in the act before me I 3, 1832, with amendments in which the Senate can perceive none of those modifications of concurred. The attempt to pass the bill over the bank charter which are necessary, in my Jackson’s veto failed. The veto of the recharter opinion, to make it compatible with justice, presidential campaign. Particularly interesting is with sound policy, or with the Constitution Jackson’s rejection of the finality or binding Of our country.

of the bank became the principal issue of the . : ,

character of the opinion of the Supreme Court The present corporate body .. . enjoys on a question of constitutionality. For back- an exclusive privilege of banking under the ground see, R. C. H. Catterall, The Second Bank authority of the General Government, a moof the United States; W. MacDonald, Jacksonian nopoly of its favor and support, and, as a Democracy, ch. vii; W. L. Royall, Andrew Jack- necessary consequence, almost a monopoly son and the Bank; J. S. Bassett, Andrew Jack- of the foreign and domestic exchange. The

sO”, Vol. Hy, ae Lie D. R. Dewey, powers, privileges, and favors bestowed upon

Financial History, ch. 1x. it in the original charter, by increasing the WASHINGTON, July 10, 1832. value of the stock far above its par value,

To the Senate: operated as a gratuity of many millions to The bill ‘to modify and continue” the act the stockholders... .

entitled ‘An act to incorporate the sub- The act before me proposes another scribers to the Bank of the United States” gratuity to the holders of the same stock, was presented to me on the 4th July instant. .. . On all hands it is conceded that its pasHaving .. . come to the conclusion that it sage will increase at least 20 or 30 per cent ought not to become a law, I herewith re- more the market price of the stock, subject turn it to the Senate, in which it originated, to the payment of the annuity of $200,000

with my objections. | per year secured by the act, thus adding in a

A bank of the United States is in many moment one-fourth to its par value. It is not respects convenient for the Government and our own citizens only who are to receive the useful to the people. Entertaining this opin- bounty of our Government. More than eight ion, and deeply impressed with the belief millions of the stock of this bank are held by that some of the powers and privileges pos- foreigners. By this act the American Repubsessed by the existing bank are unauthorized lic proposes virtually to make them a present by the Constitution, subversive of the rights of some millions of dollars. For these gratuof the States, and dangerous to the liberties ities to foreigners and to some of our own of the people, I felt it my duty at an early opulent citizens the act secures no equivalent

period of my Administration to call the at- whatever... . tention of Congress to the practicability of Every monopoly and all exclusive priviorganizing an institution combining all its leges are granted at the expense of the pub-

JacKson’s VETO OF THE BANK BILL 271 lic, which ought to receive a fair equivalent. interests are identified with those of the forThe many millions which this act proposes eign stockholders, will there not be cause to to bestow on the stockholders of the existing tremble for the purity of our elections in bank must come directly or indirectly out of | peace and for the independence of our counthe earnings of the American people. It is try in war? Their power would be great whendue to them, therefore, if their Government ever they might choose to exert it; but if sell monopolies and exclusive privileges, that this monopoly were regularly renewed every they should at least exact for them as much fifteen or twenty years on terms proposed by as they are worth in open market. The value themselves, they might seldom in peace put of the monopoly in this case may be correctly forth their strength to influence electicns or ascertained. The twenty-eight millions of control the affairs of the nation. But if any stock would probably be at an advance of private citizen or public functionary should 50 per cent, and command in market at Iecast interpose to curtail its powers or prevent a

$42,000,000, subject to the payment of the renewal of its privileges, it can not be present bonus. The present value of the mo- doubted that he would be made to feel its nopoly, therefore, is $17,000,000, and this influence... . the act proposes to sell for three millions, If we must have a bank with private stockpayable in fifteen annual installments of holders, every consideration of sound policy

$200,000 each. and every impulse of American feeling adIt is not conceivable how the present stock- monishes that it should be purely American.

liclders can have any claim to the special Its stockholders should be composed exclufavor of the Government. The present cor- sively of our own citizens, who at least ought poration has enjoyed its monopoly during the — to be friendly to our Government and willing

period stipulated in the original contract. If to support it in times of difficulty and danwe must have such a corporation, why should” ger. . . . To a bank exclusively of American not the Government sell out the whole stock stockholders, possessing the powers and privand thus secure to the people the full market ileges granted by this act, subscriptions for value of the privileges granted? Why should $200,000,000 could be readily obtained. .. .

not Congress create and sell twenty-eight It is maintained by the advocates of the millions of stock, incorporating the pur- bank that its constitutionality in all its feachasers with all the powers and privileges se- tures ought to be considered as settled by cured in this act and putting the premium precedent and by the decision of the Supreme

upon the sales into the Treasury? ... Court. To this conclusion I can not assent. The modifications of the existing charter Mere precedent is a dangerous source of au-

proposed by this act are not such, in my thority, and should not be regarded as deview, as make it consistent with the rights of ciding questions of constitutional power exthe States or the liberties of the people. The cept where the acquiescence of the people and qualification of the right of the bank to hold the States can be considered as well settled. real estate, the limitation of its power to es- So far from this being the case on this subtablish branches, and the power reserved to ject, an argument against the bank might be Congress to forbid the circulation of small based on precedent. One Congress, in 1791, notes are restrictions comparatively of little decided in favor of a bank; another, in 1811, value or importance. All the objectionable decided against it. One Congress, in 1815, principles of the existing corporation, and decided against a bank; another, in 1816, demost of its odious features, are retained with- cided in its favor. Prior to the present Con-

out alleviation. ... gress, therefore, the precedents drawn from Is there no danger to our liberty and inde- that source were equal. If we resort to the pendence in a bank that in its nature has so States, the expressions of legislative, judicial, little to bind it to our country? The president and executive opinions against the bank have

of the bank has told us that most of the State been probably to those in its favor as 4

banks exist by its forbearance. Should its tol....

influence become concentered, as it may un- If the opinion of the Supreme Court covder the operation of such an act as this, in ered the whole ground of this act, it ought the hands of a self-elected directory whose not to control the codrdinate authorities of

272 DocUMENTS OF AMERICAN HISTORY this Government. The Congress, the Execu- ment, to undertake here to inquire into the tive, and the Court must cach for itself be degree of its necessity would be to pass the guided by its own opinion of the Constitu- line which circumscribes the judicial departtion, Each public officer who takes an oath ment and to tread on legislative ground.” to support the Constitution swears that he The principle here affirmed is that the ‘‘dewill support it as he understands it, and not — gree of its necessity,” involving all the details

as it is understood by others. It is as much of a banking institution, is a question exthe duty of the House of Representatives, of clusively for legislative consideration. A bank

the Senate, and of the President to decide is constitutional, but it is the province of the upon the constitutionality of any bill or Legislature to determine whether this or that resolution which may be presented to them particular power, privilege, or exemption is for passage or approval as it is of the su- ‘“‘necessary and proper” to enable the bank to preme judges when it may be brought before discharge its duties to the Government, and them for judicial decision. The opinion of from their decision there is no appeal to the the judges has no more authority over Con- courts of justice. Under the decision of the gress than the opinion of Congress has over Supreme Court, therefore, it is the exclusive the judges, and on that point the President is province of Congress and the President to independent of both. The authority of the decide whether the particular features of this Supreme Court must not, therefore, be per- act are necessary and proper in order to enmitted to control the Congress or the Ex- able the bank to perform conveniently and ecutive when acting in their legislative ca- efficiently the public duties assigned to it as a pacities, but to have only such influence as fiscal agent, and therefore constitutional, or the force of their reasoning may deserve. unnecessary and zmproper, and therefore unBut in the case relied upon the Supreme constitutional. Court have not decided that all the features Without commenting on the general prinof this corporation are compatible with the ciple affirmed by the Supreme Court, let us Constitution. It is true that the court have examine the details of this act in accordance said that the law incorporating the bank is a __ with the rule of legislative action which they constitutional exercise of power by Congress; have laid down. It will be found that many

but taking into view the whole opinion of of the powers and privileges conferred on it the court and the reasoning by which they can not be supposed necessary for the purpose have come to that conclusion, I understand for which it is proposed to be created, and are them to have decided that inasmuch as a_ not, therefore, means necessary to attain the bank is an appropriate means for carrying end in view, and consequently not justified

into effect the enumerated powers of the by the Constitution. .. . General Government, therefore the law in- The Constitution declares that “the Con-

corporating it is in accordance with that pro- gress shall have power to exercise exclusive vision of the Constitution which declares legislation in all cases whatsoever” over the that Congress shall have power “to make all District of Columbia. Its constitutional laws which shall be necessary and proper for power, therefore, to establish banks in the carrying those powers into execution.” Hav- district of Columbia and increase their capiing satisfied themselves that the word “wec- tal at will is unlimited and uncontrollable by essary” in the Constitution means “needful,” any other power than that which gave au“requisite,” “essential,” “conducive to,’ and thority to the Constitution. Yet this act dethat “a bank” is a convenient, a useful, and clares that Congress shall mot increase the essential instrument in the prosecution of the capital of existing banks, nor create other Government’s “fiscal operations,” they con- banks with capitals exceeding in the whole clude that to “use one must be within the $6,000,000. The Constitution declares that discretion of Congress” and that “the act to Congress sall have power to exercise excluincorporate the Bank of the United States is sive legislation over this District “in all cases a law made in pursuance of the Constitu- whatsoever,” and this act declares they shall tion;” ‘‘but,” say they, “where the lawis not not. Which is the supreme law of the land? prohibited and is really calculated to effect This provision can not be “necessary” or any of the objects intrusted to the Govern- “proper” or constitutional unless the absurd-

JACKSON’S VETO OF THE BANK BILL 273 ity be admitted that whenever it be “neces- tion ever imagined that any portion of the sary and proper” in the opinion of Congress taxing power of the States not prohibited to they have a right to barter away one portion them nor delegated to Congress was to be of the powers vested in them by the Consti- swept away and annihilated as a means ot tution as a means of executing the rest... . executing certain powers delegated to Con-

The Government is the only “proper” gress. judge where its agents should reside and If our power over means is so absolute that keep their offices, because it best knows where the Supreme Court will not call in question their presence will be “necessary.” It can not, the constitutionality of an act of Congress therefore, be “necessary” or “proper” to au- the subject of which “is not prohibited, and thorize the bank to locate branches where it is realiy calculated to effect any of the ob-

pleases to perform the public service, with- jects intrusted to the Government,” alout consulting the Government, and contrary though, as in the case before me, it takes to its will. The principle laid down by the away powers expressly granted to Congress Supreme Court concedes that Congress can and rights scrupulously reserved to the States,

not establish a bank for purposes of private it becomes us to proceed in our legislation speculation and gain, but only as a means’ with the utmost caution. Though not directly, of executing the delegated powers of the our own powers and the rights of the States General Government. By the same principle may be indirectly legislated away in the use a branch bank can not constitutionally be of means to execute substantive powers. We established for other than public purposes. may not enact that Congress shall not have The power which this act gives to establish the power of exclusive legislation over the two branches in any State, without the in- District of Columbia, but we may pledge the junction or request of the Government and faith of the United States that as a means of for other than public purposes, is not “neces- executing other powers it shall not be exer-

sary” to the due execution of the powers cised for twenty years or forever. We may

delegated to Congress. .. . not pass an act prohibiting the States to tax The principle is conceded that the States the banking business carried on within their can not rightfully tax the operations of the limits, but we may, as a means of executing General Government. They can not tax the our powers over other objects, place that money of the Government deposited in the business in the hands of our agents and then State banks, nor the agency of those banks in declare it exempt from State taxation in remitting it; but will any man maintain that their hands. Thus may our own powers and their mere selection to perform this public the rights of the States, which we can not service for the General Government would ex- directly curtail or invade, be frittered away empt the State banks and their ordinary busi- and extinguished in the use of means emness from State taxation? Had the United ployed by us to execute other powers. That

States, instead of establishing a bank at a bank of the United States, competent to Philadelphia, employed a private banker to all the duties which may be required by the keep and transmit their funds, would it have Government, might be so organized as not to deprived Pennsylvania of the right to tax his infringe on our own delegated powers or the bank and his usual banking operations? ... reserved rights of the States I do not enter-

It can not be ecessary to the character of tain a doubt... . the bank as a fiscal agent of the Government Under such circumstances the bank comes that its private business should be exempted forward and asks a renewal of its charter

from that taxation to which all the State for a term of fifteen years upon conditions banks are liable, nor can I conceive it which not only operate as a gratuity to the “proper” that the substantive and most es- stockholders of many millions of dollars, but sential powers reserved by the States shall will sanction any abuses and legalize any be thus attacked and annihilated as a means encroachments... .

of executing the powers delegated to the The bank is professedly established as an General Government. It may be safely as- agent of the executive branch of the Govsumed that none of those sages who had an’ ernment, and its constitutionality is mainagency in forming or adopting our Constitu- tained on that ground. Neither upon the

274 DOCUMENTS OF AMERICAN History propriety of present action nor upon the Experience should teach us wisdom. Most provisions of this act was the Executive con- of the difficulties our Government now ensulted. It has had no opportunity to say that counters and most of the dangers which imit neither needs nor wants an agent clothed pend over our Union have sprung from an

with such powers and favored by such ex- abandonment of the legitimate objects of emptions. There is nothing in its legitimate Government by our national legislation, and functions which makes it necessary or proper. _ the adoption of such principles as are emWhatever interest or influence, whether pub- bodied in this act. Many of our rich men lic or private, has given birth to this act, it have not been content with equal protection

can not be found either in the wishes or and equal benefits, but have besought us to necessities of the executive department, by make them richer by act of Congress. By atwhich present action is deemed premature, tempting to gratify their desires we have in and the powers conferred.upon its agent not the results of our legislation arrayed section only unnecessary, but dangerous to the Gov- against section, interest against interest, and

ernment and country... . man against man, in a fearful commotion There are no necessary evils in govern- which threatens to shake the foundations of ment. Its evils exist only in its abuses. If it our Union. It is time to pause in our career would confine itself to equal protection, and, to review our principles, and if possible reas Heaven does its rains, shower its favors vive that devoted patriotism and spirit of alike on the high and the low, the rich and compromise which distinguished the sages of the poor, it would be an unqualified blessing. the Revolution and the fathers of our UnIn the act before me there seems to be a __ ion.

wide and unnecessary departure from these ANDREW JACKSON. just principles. ...

148. THE REMOVAL OF THE PUBLIC DEPOSITS Jackson’s Paper read to the Cabinet September 18, 1833 (Richardson, ed. Messages and Papers, Vol. Ill, p. 5 ff.) The veto of the bill to recharter the Bank was States, the President deems it his duty to the principal issue of the campaign of 1832. communicate in this manner to his Cabinet Jackson looked upon his re-election as a public the final conclusions of his own mind and endorsement of his policy, and proceeded to the the reasons on which they are founded, in next step of his war on the Bank by withdraw- order to put them in durable form and to

ing the public deposits from it. Secretary Duane . ,

refused to issue the order removing the deposits, prevent misconceptions. not

and was forced to give up his office to R. B. Of all the substitutes for the present bank Taney, who, on September 26, issued the order which have been suggested, none seems to for removal and designated the Girard Bank of have united any considerable portion of the Philadelphia as a place of deposit. Jackson’s public in its favor. Most of them are liable paper read to the Cabinet and drafted by Taney, to the same constitutional objections for is, according to Professor MacDonald, “the most which the present bank has been condemned, explicit statement we have of Jackson's theory and perhaps to all there are strong objections regarding the status and function of a cabinet on the score of expediency. . . .

officer in our constitutional system.” See, W. ; ;

MacDonald, Jacksonian Democracy, ch. xii; On the whole, the President considers it J. S. Bassett, Andrew Jackson. Vol. I, ch. xxix; 45 conclusively settled that the charter of S. Tyler, R. B. Taney, p. 191 ff.; D. R. Dewey, the Bank of the United States will not be

Financial History, p. 203 ff. renewed, and he has no reasonable ground to believe that any substitute will be es-

Having carefully and anxiously considered tablished. Being bound to regulate his course all the facts and arguments which have been _ by the laws as they exist, and not to anticipate submitted to him relative to a removal of the _ the interference of the legislative power for

public deposits from the Bank of the United the purpose of framing new systems, it is

Tuer REMOVAL OF THE PUBLIC DEPOSITS 275 proper for him seasonably to consider the When shall it be commenced? Shall no step means by which the services rendered by the be taken in this essential concern until the Bank of the United States are to be per- charter expires and the Treasury finds itself

formed after its charter shall expire. without an agent, its accounts in confusion,

The existing laws declare that— with no depository for its funds, and the

The deposits of the money of the United whole business of the Government deranged, _ States in places in which the said bank and or shall it be delayed until six months, or a branches thereof may be established shall be year, or two years before the expiration of made in said bank or branches thereof unless the charter? It is obvious that any new the Secretary of the Treasury shall at any system which may be substituted in the place time otherwise order and direct, in which case of the Bank of the United States could not the Secretary of the Treasury shall immedi- be suddenly carried into effect on the terminaately lay before Congress, if in session, and, tion of its existence without serious inconif not, immediately after the commencement venience to the Government and the people. of the next session, the reasons of such order Its vast amount of notes are then to be

or direction. redeemed and withdrawn from circulation and The power of the Secretary of the Treasury its immense debt collected. These operations over the deposits is uqualified. The provision must be gradual, otherwise much suffering that he shall report his reasons to Congress is and distress will be brought upon the com-

no limitation. Had it not been inserted he munity. would have been responsible to Congress had It ought to be not a work of months only, he made a removal for any other than good _ but of years, and the President thinks it can reasons, and his responsibility now ceases not, with due attention to the interests of the upon the rendition of sufficient ones to Con- people, be longer postponed. It is safer to

gress. The only object of the provision is to begin it too soon than to delay it too make his reasons accessible to Congress and long... . enable that body the more readily to judge As the President presumes that the charter of their soundness and purity, and thereupon to the bank is to be considered as a contract to make such further provision by law as the on the part of the Government, it is not now legislative power may think proper in rela~ in the power of Congress to disregard its tion to the deposit of the public money. ... stipulations; and by the terms of that conIt is a matter of surprise that a power tract the public money is to be deposited in which in the infancy of the bank was freely the bank during the continuance of its charter asserted as one of the ordinary and familiar unless the Secretary of the Treasury shall duties of the Secretary of the Treasury should otherwise direct. Unless, therefore, the Secre-

now be gravely questioned, and attempts tary of the Treasury first acts, Congress have made to excite and alarm the public mind as__ no power over the subject, for they can not if some new and unheard-of power was about add a new clause to the charter or strike one

to be usurped by the executive branch of out of it without the consent of the bank,

the Government. and consequently the public money must re-

It is but a little more than two and a half main in that institution to the last hour of its years to the termination of the charter of existence unless the Secretary of the Treasury the present bank. It is considered as the de- shall remove it at an earlier day. The recision of the country that it shall then cease sponsibility is thus thrown upon the executo exist, and no man, the President believes, tive branch of the Government of deciding has reasonable ground for expectation that how long before the expiration of the charter any other Bank of the United States will be the public interest will require the deposits

created by Congress. to be placed elsewhere; ... it being the

To the Treasury Department is intrusted duty of one of the Executive Departments to the safe-keeping and faithful application of decide in the first instance, . . . whether the the public moneys. A plan of collection dif- public deposits shall remain in the Bank of

ferent from the present must therefore be the United States until the end of its exintroduced and put in complete operation istence or be withdrawn some time before, before the dissolution of the present bank. the President has felt himself bound to

276 DOCUMENTS OF AMERICAN HIsTorRy examine the question carefully ... and in motive may lead to the expenditure of hunhis opinion the near approach of the termina- dreds of thousands, and even millions, more? tion of the charter and the public considera- And can we justify ourselves to the people tions heretofore mentioned are of themselves _ by longer lending to it the money and power amply sufficient to justify the removal of the of the Government to be employed for such deposits, without reference to the conduct of purposes?

the bank or their safety in its keeping. It has been alleged by some as an objection But in the conduct of the bank may be to the removal of the deposits that the bank found other reasons, very imperative in their has the power, and in that event will have the character, and which require prompt action. disposition, to destroy the State banks emDevelopments have been made from time to _ ployed by the Government, and bring distress

time of its faithlessness as a public agent, upon the country. It has been the fortune of its misapplication of public funds, its inter- the President to encounter dangers which were ference in elections, its efforts by the ma- represented as equally alarming, and he has chinery of committees to deprive the Govern- seen them vanish before resolution and

ment directors of a full knowledge of its energy. ... But if the President believed concerns, and, above all, its flagrant miscon- the bank possessed all the power which has duct as recently and unexpectedly disclosed been attributed to it, his determination would in placing all the funds of the bank, includ- _ only be rendered the more inflexible. If, indeed,

ing the money of the Government, at the this corporation now holds in its hands the disposition of the president of the bank as happiness and prosperity of the American means of operating upon public opinion and people, it is high time to take the alarm. If procuring a new charter, without requiring the despotism be already upon us and our him to render a voucher for their disburse- only safety is in the mercy of the despot, rement. A brief recapitulation of the facts cent developments in relation to his designs which justify these charges, and which have and the means he employs show how necescome to the knowledge of the public and _ sary it is to shake it off. The struggle can the President, will, he thinks, remove every never come with less distress to the people or reasonable doubt as to the course which it is under more favorable auspices than at the now the duty of the President to pursue. ... present moment. With these facts before him in an official All doubt as to the willingness of the State report from the Government directors, the banks to undertake the service of the Govern-

President would feel that he was not only ment to the same extent and on the same responsible for all the abuses and corruptions terms as it is now performed by the Bank the bank has committed or may commit, but of the United States is put to rest by the almost an accomplice in a conspiracy against report of the agent recently employed to that Government which he has sworn honestly _ collect information, and from that willingness

to administer, if he did not take every step their own safety in the operation may be within his constitutional and legal power confidently inferred. Knowing their own relikely to be efficient in putting an end to these sources better than they can be known by enormities. If it be possible within the scope others, it is not to be supposed that they of human affairs to find a reason for remov- would be willing to place themselves in a ing the Government deposits and leaving the situation which they can not occupy without bank to its own resource for the means of danger of annihilation or embarrassment. .. . effecting its criminal designs, we have it here. From all these considerations the Presi-

Was it expected when the moneys of the dent thinks that the State banks ought imUnited States were directed to be placed in’ mediately to be employed in the collection that bank that they would be put under the and disbursement of the public revenue, and control of one man empowered to spend mil- the funds now in the Bank of the United lions without rendering a voucher or specify- States drawn out with all convenient dis-

ing the object? Can they be considered safe patch... . |

with the evidence before us that tens of thou- As one of the most serious objections to sands have been spent for highly improper, the Bank of the United States is the power if not corrupt, purposes, and that the same which it concentrates, care must be taken in

Tue LIBERATOR 277 finding other agents for the service of the tions which impel to immediate action. .. .

Treasury not to raise up another power In the remarks he has made on this all-

equally formidable. .. . important question he trusts the Secretary It is the desire of the President that the of the Treasury will see only the frank and

control of the banks and the currency shall, respectful declarations of the opinions which as far as possible, be entirely separated from the President has formed on a measure of the political power of the country as well as great national interest deeply affecting the wrested from an institution which has already character and usefulness of his Administraattempted to subject the Government to its tion, and not a spirit of dictation, which the will. In his opinion the action of the General President would be as careful to avoid as Government on this subject ought not to ready to resist. Happy will he be if the facts extend beyond the grant in the Constitution, now disclosed produce uniformity of opinion

which only authorizes Congress “to coin and unity of action among the members of money and regulate the value thereof;” all the Administration. else belongs to the States and the people, and The President again repeats that he begs must be regulated by public opinion and the his Cabinet to consider the proposed measure

interests of trade. as his own, in the support of which he shall In conclusion, the President must be per- require no one of them to make a sacrifice mitted to remark that he looks upon the of opinion or principle. Its responsibility has pending question as of higher consideration been assumed after the most mature deliberathan the mere transfer of a sum of money _ tion and reflection as necessary to preserve the from one bank to another. Its decision may morals of the people, the freedom of the press, affect the character of our Government for and the purity of the elective franchise, with-

ages to come. Should the bank be suffered out which all will unite in saying that the longer to use the public moneys in the ac- blood and treasure expended by our forecomplishment of its purposes, with the proofs fathers in the establishment of our happy of its faithlessness and corruption before system of government will have been vain our eyes, the patriotic among our citizens will and fruitless. Under these convictions he feels

despair of success in struggling against its that a measure so important to the American power, and we shall be responsible for entail- people can not be commenced too soon, and

ing it upon our country forever. Viewing it he therefore names the Ist day of October as a question of transcendent importance, next as a period proper for the change of both in the principles and consequences it the deposits, or sooner, provided the necesinvolves, the President could not, in justice sary arrangements with the State banks can to the responsibility which he owes to the be made.

country, refrain from pressing upon the Secre- ANDREW JACKSON.

tary of the Treasury his view of the considera-

149. THE LIBERATOR, Vol. I., No. 1. January 1, 1831 (William Lloyd Garrison, 1805-1879: the Story of his Life Told by his Children, Vol. I, p. 224 ff.) About 1828 Garrison met Benjamin Lundy, and biography by his children, above, and L. Swift, the following year joined with him in editing the Wulliam Lloyd Garrison. A severely critical estiGenius for Universal Emancipation. Jailed for mate is in G. H. Barnes, The Antislavery Imlibel, he was bailed out by the philanthropist pulse, 1830-1844. See also bibliography in A. B. Arthur Tappan, and shortly betook himself to Hart, Slavery and Abolition. Boston where, with Isaac Knapp, he issued the

Liberator. The entrance of Garrison into the To the Public. anti-slavery agitation gave that movement a par-

ticularly violent and fanatical character, and he In the month of August, I issued proposals came eventually to be regarded as the leading for publishing “The Liberator” in Washington abolitionist in the country. On Garrison see the City; but the enterprise, though hailed in

278 DOCUMENTS OF AMERICAN History different sections of the country, was palsied strenuously contend for the immediate enby public indifference. Since that time, the franchisement of our slave population. In removal of the Genius of Universal Emanci- Park-Street Church, on the Fourth of July, pation to the Seat of Government has ren- 1829, in an address on slavery, I unreflectdered less imperious the establishment of a ingly assented to the popular but pernicious

similar periodical in that quarter. doctrine of gradual abolition. I seize this

During my recent tour for the purpose of opportunity to make a full and unequivocal exciting the minds of the people by a series recantation, and thus publicly to ask pardon

of discourses on the subject of slavery, every of my God, of my country, and of my place that I visited gave fresh evidence of brethren the poor slaves, for having uttered the fact, that a greater revolution in public a sentiment so full of timidity, injustice and sentiment was to be effected in the free states absurdity. A similar recantation, from my —and particularly in New England—than at pen, was published in the Genius of Universal

the south. I found contempt more bitter, op- Emancipation at Baltimore, in September, position more active, detraction more relent- 1829. My conscience is now satisfied.

less, prejudice more stubborn, and apathy I am aware, that many object to the severmore frozen, than among slave owners them- ity of my language; but is there not cause selves. Of course, there were individual ex- for severity? I will be as harsh as truth, and ceptions to the contrary. This state of things as uncompromising as justice. On this subject, afflicted, but did not dishearten me. I deter- I do not wish to think, or speak, or write, with mined, at every hazard, to lift up the standard moderation. No! No! Tell a man whose house of emancipation in the eyes of the nation, is on fire, to give a moderate alarm; tell him within sight of Bunker Hill and in the birth to moderately rescue his wife from the hands place of liberty. That standard is now un-_ of the ravisher; tell the mother to gradually furled; and long may it float, unhurt by the extricate her babe from the fire into which spoliations of time or the missiles of a des- it has fallen;—but urge me not to use moderaperate foe—yea, till every chain be broken, tion in a cause like the present. I am in earnest and every bondman set free! Let Southern —I will not equivocate—I will not excuse— oppressors tremble—let their secret abettors I will not retreat a single inch—AND I WILL

tremble—let their Northern apologists BE HEARD. The apathy of the people is tremble—let all the enemies of the persecuted enough to make every statue leap from its

blacks tremble. pedestal, and to hasten the resurrection of

I deem the publication of my original the dead. Prospectus unnecessary, as it has obtained a It is pretended, that I am retarding the wide circulation. The principles therein in- cause of emancipation by the coarseness of culcated will be steadily pursued in this paper, my invective, and the precipitancy of my

excepting that I shall not array myself as measures. The charge is not true. On this the political partisan of any man. In defend- question my influence,—humble as it is,—is ing the great cause of human rights, I wish felt at this moment to a considerable extent, to derive the assistance of all religions and and shall be felt in coming years—not per-

of all parties. niciously, but beneficially—not as a curse, but

Assenting to the “self evident truth” main- as a blessing; and posterity will bear testitained in the American Declaration of In- mony that I was right. I desire to thank God, dependence, “that all men are created equal, that he enables me to disregard “the fear of and endowed by their Creator with certain man which bringeth a snare,” and to speak inalienable rights—among which are life, his truth in its simplicity and power. .. .

liberty and the pursuit of happiness,” I shall William Lloyd Garrison. 150. THE AMERICAN ANTI-SLAVERY SOCIETY: CONSTITUTION AND DECLARATION OF SENTIMENTS December 4, 1833

The enactment of the West Indian Emancipation ganization of abolitionist sentiment in the United bill by Parliament in 1833 precipitated the or- States in an Anti-Slavery Society. Though there

Ture AMERICAN ANTI-SLAVERY SOCIETY 279 was considerable opposition to such organiza~ lawfully in our power to bring about the extion at the time, the insistence of Garrison car- tinction of Slavery, we do hereby agree, with ried the day, and a convention was called to 4 prayerful reliance on the Divine aid, to form mect in Philadelphia, December 4, 1833. Only 4 gurselyes into a society, to be governed by handful of delegates met, and these were dom- the following Constitution :—

inated by Garrison, who drew up the Declara- A 1—This Soci h ll b led tl

tion of Sentiments. See, William Lloyd Garrison: RT. i. Is Society sha e caire ve The Story of His Life Told by His Children, AMERICAN ANTI-SLAVERY SOCIETY.

Vol. 1; A. B. Hart, Slavery and Abolition, ch. xii; Art. II.—The object of this Society is the

L. Tappan, Arthur Tappan; S. T. Pickard, Life entire abolition of Slavery in the United and Works of J. G. Whittier; G. H. Barnes, The States. While it admits that each State, in

Antislavery Impulse, 1830-1844. which Slavery exists, has, by the Constitution

of the United States, the exclusive right to 1. CONSTITUTION OF THE AMERICAN legislate in regard to its abolition in said State,

ANTI-SLAVERY SOCIETY it shall aim to convince all our fellow-citizens, (Platform of the American Anti-Slavery Society by arguments addressed to their understandand its Auxiliaries, New York, 1860, p. 3-4) ings and consciences, that Slaveholding is a

Whereas the Most High God “hath made of heinous crime in the sight of God, and that one blood all nations of men to dwell on all the duty, safety, and best interests of all conthe face of the earth,” and hath commanded cerned, require its immediate abandonment, them to love their neighbors as themselves; without expatriation. The Society will also and whereas, our National Existence is based endeavor, in a constitutional way to influence upon this principle, as recognized in the Dec- Congress to put an end to the domestic Slave laration of Independence, “that all mankind trade, and to abolish Slavery in all those porare created equal, and that they are endowed tions of our common country which come

by their Creator with certain inalienable nder its control, especially in the District rights, among which are life, liberty, and the of Columbia,—and likewise to prevent the pursuit of happiness”; and whereas, after the extension of it to any State that may be lapse of nearly sixty years, since the faith hereafter admitted to the Union. and honor of the American people were Art. III.—This Society shall aim to elevate pledged to this avowal, before Almighty God the character and condition of the people of and the World, nearly one-sixth part of the color, by encouraging their intellectual, moral. nation are held in bondage by their fellow- and religious improvement, and by removing citizens; and whereas, Slavery is contrary to public prejudice, that thus they may, accord-

the principles of natural justice, of our re- jing to their intellectual and moral worth, publican form of government, and of the share an equality with the whites, of civil and Christian religion, and is destructive of the religious privileges; but this Society will prosperity of the country, while itisendanger- never, in any way, countenance the oppressed

ing the peace, union, and liberties of the jn vindicating their rights by resorting to States; and whereas, we believe it the duty physical force. and interest of the masters immediately to Art. IV.—Any person who consents to the emancipate their slaves, and that no scheme principles of this Constitution, who contribof expatriation, either voluntary or by com- ytes to the funds of this Society, and is not pulsion, can remove this great and increasing a Slaveholder, may be a member of this So-

evil; and whereas, we believe that it is prac- ciety, and shall be entitled to vote at the ticable, by appeals to the consciences, hearts, meetings. . . . and interests of the people, to awaken a public sentiment throughout the nation that 2. DECLARATION OF SENTIMENTS OF THE will be opposed to the continuance of Slavery AMERICAN ANTI-SLAVERY CONVENTION in any part of the Republic, and by effecting (William Lloyd Garrison: The Story of His Life

the speedy abolition of Slavery, prevent a Told by His Children, Vol. I, p. 408 ff.) general convulsion; and whereas, we believe The convention assembled in the city of we owe it to the oppressed, to our fellow- Philadelphia, to organize a National Anticitizens who hold slaves, to our whole country, Slavery Society, promptly seize the opportu-

to posterity, and to God, to do all that is nity to promulgate the following Declaration

280 DOCUMENTS OF AMERICAN History of Sentiments, as cherished by them in rela- is as great to enslave an American as an tion to the enslavement of one-sixth portion African.

of the American people. .. . Therefore we believe and affirm—that

We have met together for the achievement there is no difference, in principle, between of an enterprise, without which that of our — the African slave trade and American slavery: fathers is incomplete; and which, for its mag- That every American citizen, who detains nitude, solemnity, and probable results upon a human being in involuntary bondage as his the destiny of the world, as far transcends property, is, according to Scripture, (Ex. xxi,

theirs as moral truth does physical force. 16,) a man-stealer. In purity of motive, in earnestness of zeal, That the slaves ought instantly to be set

in decision of purpose, in intrepidity of action, free, and brought under the protection of in steadfastness of faith, in sincerity of spirit, law:

we would not be inferior to them... . That if they had lived from the time of Their grievances, great as they were, were Pharaoh down to the present period, and had trifling in comparison with the wrongs and _ been entailed through successive generations, sufferings of those for whom we plead. Our _ their right to be free could never have been fathers were never slaves—never bought and alienated, but their claims would have consold like cattle—never shut out from the — stantly risen in solemnity: hight of knowledge and religion—never sub- That all those laws which are now in force,

jected to the lash of brutal taskmasters. admitting the right of slavery, are there-

But those, for whose emancipation we are fore, before God, utterly null and void; being striving—constituting at the present time at an audacious usurpation of the Divine preleast one-sixth part of our countrymen—are rogative, a daring infringement on the law

recognized by law, and treated by their of nature, a base overthrow of the very fellow-beings, as brute beasts; are plundered foundations of the social compact, a comdaily of the fruits of their toil without redress; plete extinction of all the relations, endear-

really enjoy no constitutional nor legal pro- ments and obligations of mankind, and a tection from licentious and murderous out- presumptuous transgression of all the holy rages upon their persons; and are ruthlessly commandments; and that therefore they torn asunder—the tender babe from the arms ought instantly to be abrogated. of its frantic mother—the heartbroken wife We further believe and affirm—that all perfrom her weeping husband—at the caprice sons of color, who possess the qualifications or pleasure of irresponsible tyrants. For the which are demanded of others, ought to be crime of having a dark complexion, they admitted forwith to the enjoyment of the suffer the pangs of hunger, the infliction of | same privileges, and the exercise of the same stripes, the ignominy of brutal servitude. They prerogatives, as others; and that the paths are kept in heathenish darkness by laws ex- of preferment, of wealth and of intelligence, pressly enacted to make their instruction a should be opened as widely to them as to

criminal offence. persons of a white complexion.

These are the prominent circumstances in We maintain that no compensation should the condition of more than two million people, be given to the planters emancipating their the proof of which may be found in thousands _ slaves:

of indisputable facts, and in the laws of the Because it would be a surrender of the

slave-holding States. great fundamental principle, that man cannot

Hence we maintain—that, in view of the hold property in man: civil and religious privileges of this nation, Because slavery is a crime, and therefore the guilt of its oppression is unequalled by is not an article to be sold: any other on the face of the earth; and, there- Because the holders of slaves are not the fore, that it is bound to repent instantly, to just proprietors of what they claim; freeing undo the heavy burdens, and to let the op- the slave is not depriving them of property,

pressed go free. .. . but restoring it to its rightful owner; it is It is piracy to buy or steal an native African, not wronging the master, but righting the and subject him to servitude. Surely, the sin slave—restoring him to himself:

S. C. RESOLUTIONS ON PROPAGANDA 281 Because immediate and general emancipa- our territory which the Constitution has tion would only destroy nominal, not real placed under its exclusive jurisdiction.

property; it would not amputate a limb or We also maintain that there are, at the break a bone of the slaves, but by infusing present time, the highest obligations resting motives into their breasts, would make them upon the people of the free States to remove

doubly valuable to the masters as free labor- slavery by moral and political action, as

ers; and prescribed in the Constitution of the United

Because, if compensation is to be given at States. They are now living under a pledge all, it should be given to the outraged and of their tremendous physical force, to fasten guiltless slaves, and not to those who have _ the galling fetters of tyranny upon the limbs

plundered and abused them. of millions in the Southern States; they are

We regard as delusive, cruel and dangerous, _ liable to be called at any moment to suppress

any scheme of expatriation which pretends to a general insurrection of the slaves; they aid, either directly or indirectly, in the eman- authorize the slave owner to vote for threecipation of the slaves, or to be a substitute fifths of his slaves as property, and thus enfor the immediate and total abolition of able him to perpetuate his oppression; they

slavery. support a standing army at the South for

We fully and unanimously recognise the its protection; and they seize the slave, who sovereignty of each State, to legislate ex- has escaped into their territories, and send clusively on the subject of the slavery which him back to be tortured by an enraged master is tolerated within its limits; we concede that or a brutal driver. This relation to slavery iS Congress, under the present national com- criminal, and full of danger: IT MUST BE pact, has no right to interfere with any of the BROKEN UP. slave States, in relation to this momentous These are our views and principles—these

subject: our designs and measures. With entire con-

But we maintain that Congress has a right, fidence in the overruling justice of God, we and is solemnly bound, to suppress the do- plant ourselves upon the Declaration of our mestic slave trade between the several States, Independence and the truths of Divine Reve-

and to abolish slavery in those portions of lation, as upon the Everlasting Rock. ...

151. SOUTH CAROLINA RESOLUTIONS ON ABOLITIONIST PROPAGANDA December 16, 1835

(Acts and Resolutions of South Carolina, 1835, p. 26 ff.) The Southern States met abolitionist propaganda 2. Resolved, That no state having a just rewith regulatory or prohibitory legislation; most gard for her own peace and security can of the states south of Virginia provided severe acquiesce in a state of things by which such penalties for printing or speaking anything that concniracies are engendered within the limits

might incite insurrection among the slaves, or fa friendlv stat ‘ted to her by the bond even for arguing against the institution of of a Iriendly state, unite oO er yt c on S

slavery. Several states demanded that the Fed- of a common league of political association, eral government close the mails to abolitionist | Without either surrendering or compromising literature: the resolutions of South Carolina are her most essential rights. given as an example of these demands. See, A. B. 3. Resolved, That the Legislature of South

Hart, Slavery and Abolition, ch. xvi. Carolina, having every confidence in the 1. Resolved, That the formation of the aboli- Justice and friendship of the non-slaveholding

tion societies, and the acts and doings of states, announces to her co-states her concertain fanatics, calling themselves abolition- fident expectation, and she earnestly requests

ists, in the non-slaveholding states of this that the governments of these states will confederacy, are in direct violation of the promptly and effectually suppress all those obligations of the compact of the union, dis- associations within their respective limits,

social, and incendiary in the extreme. purporting to be abolition societies, and that

282 DocUMENTS OF AMERICAN HisToRY they will make it highly penal to print, publish, 6. Resolved, That we should consider the and distribute newspapers, pamphlets, tracts abolition of slavery in the District of Columand pictorial representations calculated and bia, as a violation of the rights of the citizens

having an obvious tendency to excite the of that District, derived from the implied Slaves of the southern states to insurrection conditions on which that territory was ceded

and revolt. to the general government, and as an usurpa4. Resolved, That, regarding the domestic tion to be at once resisted as nothing more slavery of the southern states as a subject than the commencement of a scheme of much exclusively within the control of each of the more extensive and flagrant injustice.

said states, we shall consider every inter- 7. Resolved, That the legislature of South ference, by any other state of the general Carolina, regards with decided approbation, government, as a direct and unlawful inter- the measures of security adopted by the Post ference, to be resisted at once, and under Office Department of the United States, in

every possible circumstance. relation to the transmission of incendiary

5. Resolved, In order that a salutary nega- tracts. But if this highly essential and protive may be put on the mischievous and_ tective policy, be counteracted by congress, unfounded assumption of some of the aboli- and the United States mail becomes a vehicle tionists—the non-slaveholding states are re- for the transmission of the mischievous docuquested to disclaim by legislative declaration, ments, with which it was recently freighted, all right, either on the part of themselves or we, in this contingency, expect that the Chief the government of the United States, to in- Magistrate of our state, will forthwith call terfere in any manner with domestic slavery, the legislature together, that timely measures either in the states, or in the territories where may be taken to prevent its traversing our

it exists. territory. (Resolutions of transmission. ) 152. TEXAS DECLARATION OF INDEPENDENCE March 1, 1836 (Poore, ed. Constitutions, Charters, etc. Part II, p. 1752-3) The Texan revolution against Mexico had broken SOLEMNLY DECLARE

out in the fall of 1835: early in 1836 a Mexican lst. That they have taken up arms in defence army of some 6000 under Santa Anna crossed of their Rights and Liberties, which were the border and the war for independence began. threatened by the encroachments of military The first week of March witnessed the attack on despots, and in defence of the Republican the Alamo. While Travis and his 188 men were of, a preparing to defend the Alamo, a convention Principles of the Federal Constitution of met at Washington, Texas and drew up a Mexico of eighteen hundred and twenty-four. declaration of independence. On March 16 a 2d. That Texas is no longer, morally or civilly, constitution modelled closely upon that of the bound by the compact of Union; yet, stimuUnited States was submitted to the convention. lated by the generosity and sympathy common

On April 21, 1836, Santa Anna was defeated at to a free people they offer their support

San Jaci’ ane nas nad nae and assistance to such of the Mexicans of see, G. P. Garrison, fexas; ©. Goodwin, £#€ the Mexican Confederacy as will take u

Trans-Mississippi West, ch. v.; N. W. Stephen- arms against their military despotism. P son, Texas and the Mexican War; M. James,

The Raven, a Biography of Sam Houston. 3d. That they do not acknowledge, that the

present authorities of the nominal Mexican WHEREAS, General Antonio Lopez de Republic have the right to govern within the Santa Anna and other Military Chieftains limits of ‘Texas. have, by force of arms, overthrown the Fed- 4th. That they will not. cease to carry on eral Institutions of Mexico, and dissolved the war against the said authorities, whilst their Social Compact which existed between Texas troops are within the limits of Texas. and the other Members of the Mexican Con- 5th. That they hold it to be their right, durfederacy— Now, the good People of Texas, ing the disorganization of the Federal System availing themselves of their natural rights, and the reign of despotism, to withdraw from

THE SPECIE CIRCULAR 283 the Union, to establish an independent Govern- for the payment of any debts contracted by

ment, or to adopt such measures as they may her Agents. .

deem best calculated to protect their rights 8th. That she will reward by donations in and liberties; but that they will continue Land, all who volunteer their services in her faithful to the Mexican Government so long present struggle, and receive them as Citizens. as that nation is governed by the Constitution These DECLARATIONS we solemnly avow and Laws that were formed for the govern- to the world, and call GOD to witness their

ment of the Political Association. truth and sincerity; and invoke defeat and 6th. That Texas is responsible for the ex- disgrace upon our heads should we prove penses of their Armies now in the field. guilty of duplicity.

7th. That the public faith of Texas is pledged RICHARD ELLIS, President. 153. THE SPECIE CIRCULAR July 11, 1836 (American State Papers, Public Lands, Vol. VIII, p. 910)

The distribution of government funds in “pet” national domain in this manner, the President banks, the distribution of the surplus, and ap- of the United States has given directions, and parent prosperity led to violent speculation in you are hereby instructed, after the 15th day public lands in the west during the second Jack- o¢ August next, to receive in payment of the

tn ae SaTeTOOE in ae axa publi lands nothing except what is direct

$24,877,000 in 1836. Payment, however, was fre- by the existing laws, viz: gold and si ver, an

quently in notes of local banks based on other 1 the proper cases, Virginia land scrip; pronotes of speculators. Under these circumstances Vided that till the 15th of December next, the

Benton drafted the specie circular which was same indulgences heretofore extended as to promulgated by the Secretary of the Treasury, the kind of money received, may be conJuly 11, 1836. The result of the specie circular tinued for any quantity of land not exceedwas to check sharply the sales of public lands ing 320 acres to each purchaser who is an and to reveal the unsoundness of many of the actual settler or bona fide resident in the smaller western banks. For Jackson s explanation State where the sales are made.

and defence of the specie circular see Doc. No. I q ; . 154. On the ‘specie circular, see W. MacDonald, n or er to ensure the faithful execution

Jacksonian Democracy, ch. xvi; D. R. Dewey, Of these instructions, all receivers are strictly Financial History of the United States, ch. x; prohibited from accepting for land sold, any R. G. Wellington, Political and Sectional In- draft, certificate, or other evidence of money, fluence of the Public Lands, 1828-1842; E. G. or deposite, though for specie, unless signed Bourne, History of the Surplus Revenue of by the Treasurer of the United States, in con-

1837. formity to the act of April 24, 1820... .

; adopting this measure being the Deposite Banks . to repress al-

Circular to Receivers of Public Money, and to The principal objects of the President in

eged frauds, and to withhold any countenance

Treasury DEPARTMENT, July 11, 1836 or facilities in the power of the Government In consequence of complaints which have from the monopoly of the public lands in the been made of frauds, speculations, and monop- hands of speculators and capitalists, to the olies, in the purchase of the public lands, injury of the actual settlers in the new States, and the aid which is said to be given to effect and of emigrants in search of new homes, as these objects by excessive bank credits, and well as to discourage the ruinous extension

dangerous if not partial facilities through of bank issues, and bank credits, by which bank drafts and bank deposites, and the gen- those results are generally supposed to be eral evil influence likely to result to the promoted, your utmost vigilance is required, public interests, and especially the safety of and relied on, to carry this order into comthe great amount of money in the Treasury, plete execution.

and the sound condition of the currency of the Levi Woopgury, country, from the further exchange of the

284 DocUMENTS OF AMERICAN HistoRy 154. JACKSON’S MESSAGE ON THE SPECIE CIRCULAR Extract from Eighth Annual Message to Congress December 5, 1836 (Richardson, ed. Messages and Papers, Vol. III, p. 249) ... The effects of an extension of bank in favor of actual settlers. This measure has credits and overissues of bank paper have produced many salutary consequences. It been strikingly illustrated in the sales of the checked the career of the Western banks public lands. From the returns made by the and gave them additional strength in anticivarious registers and receivers in the early pation of the pressure which has since perpart of last summer it was perceived that vaded our Eastern as well as the European

the receipts arising from the sales of the commercial cities. By preventing the expublic lands were increasing to an unprece- tension of the credit system it measurably dented amount. In effect, however, these cut off the means of speculation and retarded receipts amounted to nothing more than its progress in monopolizing the most valuacredits in bank. The banks lent out their notes _ ble of the public lands. It has tended to save to speculators. They were paid to the receivers the new States from a nonresident proprietor-

and immediately returned to the banks, to be ship, one of the greatest obstacles to the lent out again and again, being mere instru- advancement of a new country and the ments to transfer to speculators the most prosperity of an old one. It has tended to valuable public land and pay the Government keep open the public lands for entry by by a credit on the books of the banks. Those emigrants at Government prices instead of credits on the books of some of the Western their being compelled to purchase of specula-

banks, usually called deposits, were already tors at double or triple prices. And it is greatly beyond their immediate means of pay- conveying into the interior large sums in ment, and were rapidly increasing. Indeed, silver and gold, there to enter permanently each speculation furnished means for another; into the currency of the country and place for no sooner had one individual or company it on a firmer foundation. It is confidently paid in the notes than they were immediately believed that the country will find in the lent to another for a like purpose, and the motives which induced that order and the banks were extending their business and their happy consequences which will have ensued issues so largely as to alarm considerate men much to commend and nothing to conand render it doubtful whether these bank demn. credits if permitted to accumulate would ulti- It remains for Congress if they approve mately be of the least value to the Govern- the policy which dictated this order to follow ment. The spirit of expansion and specula-_ it up in its various bearings. Much good, in tion was not confined to the deposit banks, my judgment, would be produced by probut pervaded the whole multitude of banks hibiting sales of the public lands except to throughout the Union and was giving rise to actual settlers at a reasonable reduction of

new Institutions to aggravate the evil. price, and to limit the quantity which shall The safety of the public funds and the be sold to them. Although it is believed the interest of the people generally required that General Government never ought to receive these operations should be checked; and it anything but the constitutional currency in

became the duty of every branch of the exchange for the public lands, that point General and State Governments to adopt all would be of less importance if the lands were legitimate and proper means to produce that sold for immediate settlement and cultiva-

salutary effect. Under this view of my duty tion. Indeed, there is scarcely a mischief I directed the issuing of the order which will arising out of our present land system, inbe laid before you by the Secretary of the cluding the accumulating surplus of revenues, Treasury, requiring payment for the public which would not be remedied at once by a lands sold to be made in specie, with an ex-_ restriction on land sales to actual settlers; ception until the 15th of the present month and it promises other advantages to the

CHARLES RIVER BRIDGE V. WARREN BRIDGE 285 country in general and to the new States in most profound consideration of Con-

particular which can not fail to receive the gress. . . . . 155. CHARLES RIVER BRIDGE v. WARREN BRIDGE 11 Peters, 420 1837

Error to the supreme court of Massachusetts. statute more unfavorably to the public, and By act of 1785 the legislature of Massachusetts to the rights of the community, than would granted to the Charles River Bridge Company be done in a like case in an English court the right to build and maintain a toll bridge of justice. over the Charles River. The bridge was opened But we are not now left to determine for

in 1786, and in 1792 the charter was extended the first. ti th les by which publi '

to a period of seventy years. The charter was € first time the ruses Dy wile pubic grants not, however, exclusive. In 1828 the legislature 7° to be construed in this country. The subincorporated the Warren Bridge Company for ject has already been considered in this the purpose of erecting a competing bridge only court, and the rules of construction above a few rods from the Charles River Bridge. The stated fully established. In the case of the Warren Bridge was to be surrendered to the United States v. Arredondo, 8 Pet. 738, the State as soon as the cost of construction should leading cases upon this subject are collected be recovered. The Charles River Bridge Com- together by the learned judge who delivered pany sued for an injunction on the ground the opinion of the court, and the principle that the construction of a competing bridge con- . : ; stituted an impairment of contract. The ques- recognized that, in grants by the public noth-

tion before the court was whether the original 8 passes by implication. . . . .

grant should be so construed as to constitute an But the case most analogous to this, and in exclusive grant. The decision, Chief Justice Ta- which the question came more directly before ney’s first constitutional opinion, was of utmost — the court, is the case of Providence Bank v. importance in establishing the principle that leg- Billings, 4 Pet. 514, which was decided in islative grants are to be construed narrowly in 1830. In that case it appeared that the legis-

favor of the State, and that any ambiguity ina jature of Rhode Island had chartered the grant must operate against the corporation and bank. in the usual form of such acts of in-

in favor of the public. This decision modified the ane ,

significance of the decision of the court in the corporation. The charter contained no stipuDartmouth College Case, and marked what some lation on the part of the State that it would students have regarded as a retreat from the not impose a tax on the bank, nor any reseradvanced position taken by the Court under vation of the right to do so. It was silent on Marshall. See, Warren, Supreme Court, (1928 this point. Afterwards a law was passed imed.) Vol. II, p. 21 ff.; Boudin, Government by posing a tax on all banks in the State, and Judiciary, Vol. I, p. 385 ff.; S. Tyler, Memoir of the right to impose this tax was resisted by Roger B. Taney ; B. C. Steiner, Life of R. B. the Providence Bank upon the ground that if Taney; G. W. Biddle, “Constitutional History the State could impose a tax, it might tax so

of the United States as Influenced by Chiei- heavil to render the { hi ¢

Justice Taney” in Constitutional History of the cavity as to render tne jrancnise OF ho Tinited States as seen in the Development of value, and destroy the institution; that the

American Law. charter was awhich contract, and that a power may in effect destroy the charter is Taney, C. J... . Borrowing, as we have inconsistent with it, and is impliedly redone, our system of jurisprudence from the nounced in granting it. But the court said English law . . . it would present a singular that the taxing power is of vital importance spectacle, if, while the courts in England are and essential to the existence of government,

restraining, within the strictest limits, the and that the relinquishment of such a power spirit of monopoly, and exclusive privileges is never to be assumed. ... The case now in nature of monopolies, and confining cor- before the court is, in principle, precisely the porations to the privileges plainly given to same. It is a charter from a state; the act

them in their charter, the courts of this of incorporation is silent in relation to the country should be found enlarging these contested power. The argument in favor of privileges by implication; and construing a_ the proprietors of the Charles River bridge,

286 DocUMENTS OF AMERICAN HIsToRY is the same, almost in words, with that used distinctly placed on the ground, that the by the Providence Bank; that is, that the interests of the community were concerned power claimed by the state, if it exists, may in preserving, undiminished, the power then be so used as to destroy the value of the in question; and whenever any power of the franchise they have granted to the corpora- state is said to be surrendered or diminished, tion. The argument must receive the same whether it be the taxing power, or any other answer, and the fact that the power has been affecting the public interest, the same prinalready exercised, so as to destroy the value ciple applies, and the rule of construction of the franchise, cannot in any degree affect must be the same. No one will question, that

the principle. The existence of the power the interests of the great body of the people does not, and cannot, depend upon the cir- of the state, would, in this instance, be afcumstance of its having been exercised or fected by the surrender of this great line of

not. travel to a single corporation, with the right

It may, perhaps, be said, that in the case of to exact toll, and exclude competition, for the Providence Bank, this court were speak- seventy years. While the rights of private ing of the taxing power; which is of vital property are sacredly guarded, we must not importance to the very existence of every forget, that the community also have rights, government. But the object and end of all and that the happiness and well-being of government is to promote the happiness and every citizen depends on their faithful presprosperity of the community by which it is ervation. established; and it can never be assumed, that Adopting the rule of construction above the government intended to diminish its stated as the settled one, we proceed to apply power of accomplishing the end for which it to the charter of 1785 to the proprietors of it was created. And in a country like ours, the Charles River bridge. This act of incorfree, active and enterprising, continually ad- poration is in the usual form, and the privivancing in numbers and wealth, new chan- leges such as are commonly given to cornels of communication are daily found neces- porations of that kind. It confers on them

sary, both for travel and trade, and are the ordinary faculties of a corporation, for | essential to the comfort, convenience and the purpose of building the bridge; and esprosperity of the people. A state ought never tablishes certain rates of toll, which the to be presumed to surrender this power, be- company are authorized to take. This is the cause, like the taxing power, the whole com- whole grant. There is no exclusive privilege

munity have an interest in preserving it given to them over the waters of Charles undiminished. And when a corporation al- river, above or below their bridge; no right

leges, that a state has surrendered, for to erect another bridge themselves, nor to seventy years, its power of improvement and prevent other persons from erecting one, no public accommodation, in a great and impor- engagement from the State, that another tant line of travel, along which a vast num- — shall not be erected; and no undertaking not

ber of its citizens must daily pass, the com- to sanction competition, nor to make immunity have a right to insist, in the language provements that may diminish the amount of of this court, above quoted, “that its aban- its income. Upon all these subjects the chardonment ought not to be presumed, in a case, ter is silent; and nothing is said in it about a

in which the deliberate purpose of the state line of travel, so much insisted on in the to abandon it does not appear.” The con- argument, in which they are to have exclutinued existence of a government would be _ sive privileges. No words are used from which

of no great value, if, by implications and an intention to grant any of these rights can presumptions, it was disarmed of the powers’ be inferred. If the plaintiff is entitled to necessary to accomplish the ends of its crea- them, it must be implied, simply from the tion, and the functions it was designed to nature of the grant, and cannot be inferred

perform, transferred to the hands of privi- from the words by which the grant is leged corporations. The rule of construction made... . announced by the court, was not confined to The inquiry then is, does the charter conthe taxing power, nor is it so limited, in the — tain such a contract on the part of the State?

opinion delivered. On the contrary, it was Is there any such stipulation to be found in

Tue CaROLINE AFFAIR 287 that instrument? It must be admitted on all have the corporations supposed that their hands, that there is none—no words that even privileges were invaded, or any contract vio-

relate to another bridge, or to the diminution _lated on the part of the State... .—

of their tolls, or to the line of travel. If a And what would be the fruits of this doccontract on that subject can be gathered trine of implied contracts on the part of the from the charter, it must be by implication, States, and of property in a line of travel and cannot be found in the words used. Can by a corporation, if it should now be sancsuch an agreement be implied? The rule of tioned by this court? To what results would construction before stated is an answer to it lead us? If it is to be found in the charter the question. In charters of this description, to this bridge, the same process of reasoning no rights are taken from the public, or given must discover it, in the various acts which to the corporation, beyond those which the have been passed, within the last forty years,

words of the charter, by their natural and for turnpike companies. ... If this court

proper construction, purport to convey. There should establish the principles now contended are no words which import such a contract as for, what is to become of the numerous railthe plaintiffs in error contend for, and none roads established on the same line of travel

can be implied; and the same answer must with turnpike companies, and which have be given to them that was given by this court rendered the franchises of the turnpike corto the Providence Bank. The whole commu- porations of no value? Let it once be under-

nity are interested in this inquiry, and they stood that such charters carry with them have a right to require that the power of pro- these implied contracts, and give this unmoting their comfort and convenience, and known and undefined property in a line of of advancing the public prosperity, by pro- travelling, and you will soon find the old viding safe, convenient, and cheap ways for — turnpike corporations awakening from their the transportation of produce and the pur- sleep and calling upon this court to put down

poses of travel, shall not be construed to the improvements which have taken their

have been surrendered or diminished by the place. The millions of property which have State, unless it shall appear by plain words been invested in railroads and canals upon

that it was intended to be done... . lines of travel which had been before occupied Indeed, the practice and usage of almost by turnpike corporations will be put in jeopevery State in the Union old enough to have ardy. We shall be thrown back to the imcommenced the work of internal improve- provements of the last century, and obliged ment, is opposed to the doctrine contended to stand still until the claims of the old for on the part of the plaintiffs in error. turnpike corporations shall be satisfied, and Turnpike roads have been made in succession, they shall consent to permit these States to on the same line of travel; the later ones in- avail themselves of the lights of modern terfering materially with the profits of the science, and to partake of the benefit of those first. These corporations have, in some in- improvements which are now adding to the stances, been utterly ruined by the introduc- wealth and prosperity, and the convenience tion of newer and better modes of transporta- and comfort, of every other part of the civition and travelling. In some cases, railroads lized world... . have rendered the turnpike roads on the same Judgment affirmed.

line of travel so entirely useless, that the Srory, J., delivered a dissenting opinion franchise of the turnpike corporation is not in which THompson, J., concurred. worth preserving. Yet in none of these cases

156. THE CAROLINE AFFAIR Message of President Van Buren

January 8, 1838 ,

(Richardson, ed. Messages and Papers, Vol. III, p. 401 ff.) Upon the failure of the Canadian Rebellion of | in the Niagara River, and from there made at1837, a number of refugees scized Navy Island tacks upon the Canadian border. On December

288 DocUMENTS OF AMERICAN History 29, Canadian militia seized the steamer, Caro- Wells, of Buffalo, and bound for Schlosser, “ine, then in the service of the insurgents, but upon the east side of the Niagara River and on the New York shore. This invasion of Ameri- within the United States; that this deponent can territory led to a diplomatic controversy commanded the said Caroline. and that she with Great Britain that was subsequently ag- was cleared from Buffalo with a view to run

gravated by the arrest in New York City of a ; British subject, Alexander Mc Leod, on the charge between said Buffalo and Schlosser, carrying

of murder in connection with the attack on the Passengers, freight, etc.; that this deponent

Caroline. The documents appended to Van caused the said Caroline to be landed at Buren’s message give the history of the affair. Black Rock on her way down, and that while

See, O. E. Tiffany “Relations of the United at Black Rock this deponent caused the States to the Rebellion of 1837,” Publications of | American flag to be run up, and that soon the Buffalo Historical Society, Vol. VIII; J. B. after leaving Black Rock Harbor a volley of McMaster, History of the People of the United musketry was discharged at the Caroline from

State Papers, Vole XXUE ORE nn re the Canada shore, but without injury; that

, the said Caroline continued her course down

WASHINGTON, January 8, 1838. the Niagara River unmolested and landed To the Senate and House of Representatives Outside of certain scows or boats attached to

of the United States: Navy Island, where a number of passengers In the highly excited state of feeling on the disembarked and, as this deponent supposes, northern frontier, occasioned by the disturb- Certain articles of freight were landed ; ve

ances in Canada, it was to be apprehended that at about 6 o’clock in the evening this that causes of complaint might arise on the eponent caused the said Caroline to be line dividing the United States from Her landed at Schlosser ; that the crew and officers Britannic Majesty’s dominions. Every pre- Of the Caroline numbered ten, and that in caution was therefore taken on our part the course of the evening twenty-three indiauthorized by the existing laws, and as the Viduals, all of whom were citizens of the troops of the Provinces were embodied on United States, came on board of the Caroline the Canadian side it was hoped that no se- and requested this deponent and. other ofrious violation of the rights of the United ficers of the boat to permit them to remain States would be permitted to occur. I regret, on board during the night, as they were unhowever, to inform you that an outrage of a able to get lodgings at the tavern near by; most aggravated character has been com- these requests were acceded to, and the permitted, accompanied by a hostile though sons thus coming on board retired to rest, as temporary invasion of our territory, produc- did also the crew and officers of the Caroline, ing the strongest feelings of resentment on the except such as were stationed to watch durpart of our citizens in the neighborhood and ng the night; that about midnight this deon the whole border line, and that the excite- ponent was informed by one of the watch ment previously existing has been alarmingly that several boats filled with men were makincreased. To guard against the possible re- 108 toward the Caroline from the river, and currence of any similar act I have thought it this deponent immediately gave the alarm, indispensable to call out a portion of the and before he was able to reach the dock the

militia, to be posted on that frontier. The Caroline was boarded by some seventy or documents herewith presented to Congress eighty men, all of whom were armed; that show the character of the outrage com- they immediately commenced a warfare with mitted, the measures taken in consequence muskets, swords, and cutlasses upon the deof its occurrence, and the necessity for re- fenseless crew and passengers of the Caroline

sorting to them... . under a fierce cry of “G—d d—n them, give M. VAN BUREN. them no quarters; kill every man. Fire!

fire!”; that the Caroline was abandoned with-

STATE OF NEw York, Niagara County, ss: out resistance, and the only effort made by Gilman Appleby, of the city of Buffalo, either the crew or passengers seemed to be being sworn, says that he left the port of to escape slaughter; that this deponent narBuffalo on the morning of the 29th instant in rowly escaped, having received several the steamboat Caroline, owned by William wounds, none of which, however, are of a

Toe CAROLINE AFFAIR 289 serious character; that immediately after the the insurrection in Lower Canada, namely, Caroline fell into the hands of the armed the national antipathy of the French inhabitforce who boarded her she was set on fire, cut ants, did not in any degree apply in the loose from the dock, was towed into the cur- upper Province, whose population, like the rent of the river, there abandoned, and soon’ British and American inhabitants of Lower after descended the Niagara Falls; that this Canada, were wholly opposed to the revolt deponent has made vigilant search after the and anxious to render every service in their individuals, thirty-three in number, who are power in support of the Queen’s author-

known to have been on the Caroline at the ity.... time she was boarded, and twenty-one only On the night of the 4th December the are to be found, .. . the twelve individuals inhabitants of the city of Toronto were who are missing, this deponent has no doubt, alarmed by the intelligence that about 500 were either murdered upon the steamboat or persons armed with rifles were approaching found a watery grave in the cataract of the the city; that they had murdered a gentleFalls: and this deponent further says that man of great respectability in the highway, immediately after the Caroline was got into and had made several persons prisoners. . . . the current of the stream and abandoned, as On the 7th of December an overwhelming before stated, beacon lights were discovered force of militia went against them and disupon the Canada shore near Chippewa, and persed them without losing a man, taking after sufficient time had elapsed to enable many prisoners, who were instantly by my the boats to reach that shore this deponent order released and suffered to depart to their distinctly heard loud and vociferous cheer- homes. The rest, with their leaders, fled; ing at that point; that this deponent has no some have since surrendered themselves to doubt that the individuals who boarded the justice; many have been taken, and some Caroline were a part of the British forces have escaped from the Province. .. .

now stationed at Chippewa. After the dispersion of the armed insur-

[Subscribed and sworn to before a com- gents near Toronto Mr. McKenzie, their

missioner, etc. | leader, escaped in disguise to the Niagara Toron To, Upper Canapa, January 8, 1838. ner and crossed over to Buia. Reports

His Excellency Henry S. Fox ad beenthespread there andthat elsewhere along American frontier Toronto had been Her Majesty’s Minister, Washington. ... burnt and that the rebels were completely The governor of the State of New York successful, but the falsehood of these absurd complains of the cutting out and burning rumors was well known before McKenzie

of the steamboat Caroline by order of arrived on the American side... .

Colonel McNab, commanding Her Majesty’s Nevertheless, a number of American citiforces at Chippewa, in the Province of Upper zens in Buffalo and other towns on the Canada, and of the destruction of the lives frontier of the State of New York enlisted of some American citizens who were on _ as soldiers, with the avowed object of inboard of the boat at the time she was at- vading Canada and establishing a provisional

tacked. government. Public meetings were held to The act complained of was done under the forward this design of invading a country

following circumstances: with which the United States were at peace.

In Upper Canada, which contains a popula- Volunteers were called for, and arms, amtion of about 450,000 souls, the most perfect munition, and provisions were supplied by tranquillity prevailed up to the 4th day of contributions openly made. All this was in December last, although in the adjoining direct and flagrant violation of the express

Province of Lower Canada many of the laws of the United States, as well as of the French Canadian inhabitants had been in law of nations. open rebellion against the Government for The civil authority of Buffalo offered some

about a month preceding. slight shew of resistance to the movement, At no time since the treaty of peace with being urged to interpose by many of the the United States in 1815 had Upper Canada most respectable citizens. But no real imbeen more undisturbed. The real causes of pediment was offered, and on the 13th of

290 DOCUMENTS OF AMERICAN History December some hundreds of the citizens of | cember positive information was given to the State of New York, as an armed body Colonel McNab by persons from Buffalo that under the command of a Mr. Van Rensselaer, a small steamboat called the Caroline, of an American citizen, openly invaded and took about 50 tons burthen, had been hired by the possession of Navy Island, a part of Upper pirates, who called themselves “patriots,” and

Canada, situate in the Niagara River. was to be employed in carrying down cannon Not believing that such an outrage would and other stores and in transporting men and really be committed, no force whatever was anything else that might be required between

assembled at the time to counteract this Fort Schlosser and Navy Island.

hostile movement. He resolved if she came down and engaged

In a very short time this lawless band in this service to take or destroy her. She

obtained from some of the arsenals of the did come down agrecably to the information State of New York (clandestinely, as it is he received. She transported a piece of artilsaid) several pieces of artillery and other lery and other stores to the island, and made arms, which in broad daylight were openly repeated passages during the day between the transported to Navy Island without resist- island and the main shore.

ance from the American authorities. The In the night he sent a party of militia people of Buffalo and the adjacent country in boats, with orders to take or destroy her. continued to supply them with stores of They proceeded to execute the order. They various kinds, and additional men enlisted found the Caroline moored to the wharf op-

in their ranks. posite to the inn at Fort Schlosser. In the In a few days their force was variously inn there was a guard of armed men to prostated from 500 to 1,500, of whom a small tect her—part of the pirate force, or acting proportion were rebels who had fled from in their support. On her deck there was an Upper Canada. They began to intrench them- armed party and a sentinel, who demanded selves, and threatened that they would in a_ the countersign. short time make a landing on the Canadian Thus identified as she was with the force

side of the Niagara River... . which in defiance of the law of nations and

An official statement of the unfriendly pro- every principle of natural justice had inceedings at Buffalo was without delay (on vaded Upper Canada and made war upon its

the 13th December) made by me to his unoffending inhabitants, she was boarded, excellency the governor of the State of New and after a resistance in which some desperYork, to which no answer has been received. ate wounds were inflicted upon the assailants And after this open invasion of our territory, she was carried. If any peaceable citizens of and when it became evident that nothing was the United States perished in the conflict, it effected at Buffalo for preventing the viola- was and is unknown to the captors, and it tion of neutrality, a special messenger was was and is equally unknown to them whether

sent to your excellency at Washington to any such were there... . urge your interposition in the matter... . No wanton injury was committed by the Soon after his departure this band of out- party who gallantly effected this service. laws on Navy Island, ... opened a fire They loosed the vessel from the wharf, and from several pieces of ordnance upon the finding they could not tow her against the Canadian shore, which in this part is thickly rapid current of the Niagara, they abandoned settled, . . . They put several balls through — the effort to secure her, set her on fire, and a house in which a party of militiamen were let her drift down the stream. quartered. . . . They killed a horse on which The prisoners taken were a man who, it a man at the time was riding, but happily will be seen by the documents accompany-

did no further mischief, though they fired ing this dispatch, avowed himself to be a also repeatedly with cannon and musketry subject of Her Majesty, inhabiting Upper

upon our boats. Canada, who had lately been traitorously in

They continued daily to render their posi- arms in that Province, and, having fled to tion more formidable, receiving constant sup- the United States, was then on board for plies of men and warlike stores from the the purpose of going to the camp at Navy State of New York, ... On the 28th De- Island; and a boy, who, being born in Lower

PRE-EMPTION ACT OF 1841 291 Canada, was probably residing in the United tries, Upper Canada alone is the object of

States, and who, being afraid to land from their hostilities. The Government of the the boat in consequence of the firing kept United States has failed to enforce its auup by the guard on the shore, was placed in thority by any means, civil or military, and one of the boats under Captain Drew and_ the single question (if it be a question) is taken over to our side, from whence he was whether Upper Canada was bound to refrain

sent home the next day by the Falls ferry from necessary acts of self-defense against with money given him to bear his ex- a people whom their own Government either

penses.... could not or would not control.

The exact position, then, of affairs on our In perusing the message of His Excellency

frontier may be thus described: Governor Marcy to the legislature of the An army of American citizens, joined toa State of New York your excellency will very few traitors from Upper Canada, and probably feel some degree of surprise that under the command of a subject of the after three weeks’ continued hostility carried United States, has been raised and equipped on by the citizens of New York against the in the State of New York against the laws people of Upper Canada his excellency seems of the United States and the treaties now to have considered himself not called upon subsisting, and are using artillery plundered to make this aggression the subject of refrom the arsenals of the State of New York mark for any other purpose than to complain in carrying on this piratical warfare against of a solitary act of self-defense on the part

a friendly country. of Her Majesty’s Province of Upper Canada, The officers and Government of the United to which such unprovoked hostilities have States and of the State of New York have unavoidably led.

attempted to arrest these proceedings and I have the honor to be, sir, your excelto control their citizens, but they have failed. lency’s most obedient, humble servant,

Although this piratical assemblage are thus F. B. HEAD. defying the civil authorities of both coun-

157. PRE-EMPTION ACT OF 1841 September 4, 1841 (U. S. Statutes at Large, Vol. V, p. 453 ff.) The occupation of the west, pushing ahead faster sales of public lands and to grant pre-emption

than the government land surveys, created a rights. problem of a grave character. Individual settlers Sec. 8. That there shall be granted to each squatted on the public domain, and considered ciate _.. five hundred thousand acres of

it a gross injustice when Jands which they had land f nt 1 °

cleared, cultivated, and improved were put up an OF s+ + dnterna improvements. Profor public sale. To circumvent the government, vided, that to each of the States which has settlers organized “Claims Associations”, whose ready received grants for said purposes, members were bound not to bid higher than a there is hereby granted no more than a pre-arranged price. Congress, in 1841, recognized quantity of land which shall, together with

the rights of squatters and the force of public the amount said State has already received opmon by enacung Pre-emption lawsettie Py which five hundred acres... . settierS wereaallowe oO on.. . amake quarter sec-thousand .

tion of unsurveyed public land with the right ah ig 7 nh jen Te ha Proweeds of the of purchase at the minimum price when such . aid Zands shall de faithiully apphed to land was placed on sale. See, B. H. Hibbard, His- objects of internal Improvement . . .

tory of Public Land Policies, ch. ix; S. Sato, namely, roads, railways, bridges, canals and History of the Land Question in the United ™provement of water-courses, and draining States, p. 148 ff.; R. G. Wellington, Political and Of Swamps... .

Sectional Influence of the Public Lands, 1828- Sec. 10. That from and after the passage

1842. of this act, every ... man, over the age of . twenty-one years, and being a citizen of the

. An Act to appropriate the proceeds of the United States, or having filed his declaration

292 DOCUMENTS OF AMERICAN HISTORY of intention to become a citizen... who guished by the United States at any time since the first day of June, A. D. eighteen during the operation of this act; no sections hundred and forty, has made... a settle- of land reserved to the United States alterment in person on the public lands to which nate to other sections granted to any of the the Indian title had been . . . extinguished, States for the construction of any canal, rail-

and which... shall have been surveyed road, or other ... public improvement; no prior thereto, and who shall inhabit and im- _ sections . . . included within the limits of

prove the same, and who... shall erect any incorporated town; no portions of the a dwelling thereon, ... is hereby, author- public lands which have been selected as the

ized to enter with... the land office... site for a city or town; no parcel or lot of by legal subdivisions, amy number of acres land actually settled and occupied for the not exceeding one hundred and sixty, or a purposes of trade and not agriculture; and

quarter section of land, to include the no lands on which are situated any known residence of such claimant, upon paying to _ salines or mines, shall be liable to entry under

the United States the minimum price of such and by virtue of the provisions of this land, subject, however, to the following limi- act... . tations and exceptions: No person shall be Sec. 11. That when two or more persons entitled to more than one pre-emptive right shall have settled on the same quarter secby virtue of this act; no person who is the tion of land, the right of pre-emption shall proprietor of three hundred and twenty acres be in him or her who made the first settle-

of land in any State or Territory of the ment, provided such persons shall conform United States, and no person who shall quit to the other provisions of this act; and all or abandon his residence on his own land to questions as to the right of pre-emption arisreside on the public land in the same State ing between different settlers shall be settled

or Territory, shall acquire any right of pre- by the register and receiver of the district emption under this act; no lands included in within which the land Is situated, subject to any reservation ... no lands reserved for an appeal to and a revision by the Secretary

the support of schools, nor the lands... to of the Treasury of the United States... . which the title has been or may be extin-

158. PRIGG v. THE COMMONWEALTH OF PENNSYLVANIA 16 Peters, 539 1842

Error to the Supreme Court of Pennsylvania. The facts are briefly these: the plaintiff The facts of the case are stated in the opinion jn error was indicted in the Court of Oyer below. The decision of the Court, that Congress and Terminer for York County for having, had exclusive power over the rendition of fugi- === taken and _ carried away from that tive slaves, and that the states could not be county to the State of Maryland, a certain

obliged to enforce fugitive slave laws through

state officers, led to a series of Personal Liberty Negro woman, named Margaret Morgan, with Laws in northern states which largely nullified @ design and intention of selling and disposthe Fugitive Slave Laws. See, for example, Doc. ing of, and keeping her as a slave or servant

No. 182. See, Warren, Supreme Court, (1928 cd.) for life, contrary to a statute of PennVol. II, p. 83 ff.; A. B. Hart, Slavery and Aboli- sylvania, passed on the 26th of March 1826.

tion, ch. xix; M. G. Mc Dougall, Fugitive Slaves, That statute in the first section, ... pro1619-1865; J. C. Hurd, The Law of Freedom and vides, that if any person or persons shall

Bondage, Vol. II. from and after the passing of the act, by Story, J. This is a writ of error to the force and violence take and carry away .. . Supreme Court of Pennsylvania, brought and shall by fraud and false pretense seduce under the 25th section of the Judiciary Act ... any negro or mulatto from any part of of 1789, for the purpose of revising the that Commonwealth, . .. shall on convicjudgement of that court, in a case involving tion thereof, be deemed guilty of a felony, and

the construction of the Constitution and laws shall forfeit and pay a sum not less than

of the United States. five hundred, nor more than one thousand —

Pricc v. THE COMMONWEALTH OF PENNSYLVANIA 293 dollars; . . . and shall be confined and kept The remaining question is, whether the

to hard labor, etc... . power of legislation upon this subject 1s ex-

The plaintiff in error pleaded not guilty to clusive in the national government, or con-

the indictment; and at the trial the Jury current in the States, until it is exercised found a special verdict, which, in substance, by Congress. In our opinion it is exclusive;

states, that the negro woman, Margaret and we shall now proceed briefly to state Morgan was a slave for life, and held to our reasons for that opinion. . . . labor and service . . . to a certain Margaret In the first place it is material to state Ashmore, a citizen of Maryland; that the ... that the right to seize and retake fugislave escaped and fled from Maryland into tive slaves and the duty to deliver them up, Pennsylvania in 1832; that the plaintiff in in whatever State of the Union they may be error . . . caused the said negro woman to found, and of course the corresponding power be taken... asa fugitive from labor by a of Congress to use the appropriate means to State constable under a warrant from a_ enforce the right and duty, derive their whole Pennsylvania magistrate; that the said negro validity and obligation exclusively from the

woman was thereupon brought before the Constitution of the United States... .

said magistrate who refused to take further Under the Constitution it is recognized as an cognizance of the case; and thereupon the absolute and positive right and duty, pervad-

plaintiff... did... carry away the said ing the whole Union with an equal and sunegro woman and her children out of Penn- preme force, uncontrolled and uncontrollable

sylvania into Maryland. ... The special by State sovereignty or State legislation. It verdict further finds, that one of the children is therefore in a just sense a new and posiwas born in Pennsylvania, more than a year tive right, independent of comity, confined

after the said negro woman had fled and to no territorial limits, and bounded by no

escaped from Maryland... . State institutions or policy. The natural inThe question arising in the case as to the ference deducible from this consideration constitutionality of the statute of Penn- certainly is, in the absence of any positive

sylvania, has been most elaborately argued delegation of power to the State Legislatures, at the bar. The counsel for the plaintiff have that it belongs to the legislative department contended that the statute of Pennsylvania of the national government, to which it owes is unconstitutional; First, because Congress its origin and establishment. It would be a has the exclusive power of legislation upon strange anomaly, and forced construction, to the subject matter under the constitution of suppose that the national government meant

the United States, and under the act of to rely for the due fulfillment of its own the 12th of February 1793, which was passed proper duties and the rights which it intended

in pursuance thereof; second, that if this to secure upon State legislation, and not upon

power is not exclusive in Congress, still that of the Union. A fortiori, it would be the concurrent power of the State Legisla- more objectionable to suppose that a power, tures is suspended by the actual exercise of which was to be the same throughout the the power by Congress; and third, that if Union, should be confided to State sovernot suspended, still the statute of Pennsyl- cignty, which could not rightfully act beyond

vania, in all its provisions applicable to this its own territorial limits. , case, is in direct collision with the act of In the next place, the nature of the proCongress, and therefore is unconstitutional vision and the objects to be attained by it, and void. The counsel for Pennsylvania main- require that it should be controlled by one

tain the negative of all these points. and the same will, and act uniformly by the Few questions which have ever come be- same system of regulations throughout the

fore this court involve more delicate and Union... . important considerations; and few upon It is scarcely conceivable that the slavewhich the public at large may be presumed holding States would have been satisfied with

to feel a more profound and pervading in- leaving to the legislation of the non-slave-

terest. ... holding States a power of regulation, in (Upholds constitutionality of fugitive slave the absence of that of Congress, which would

act of 1793.) or might practically amount to a power to

294 DOCUMENTS OF AMERICAN History destroy the rights of the owner... .Onthe way, the master or the State? The law of the other hand, construe the right of legislation State does in no case discharge, in the lanas exclusive in Congress, and every evil and guage of the Constitution, the slave from every danger vanishes. The right and the the service of his master. duty are then co-extensive and uniform in It is a most important police regulation. remedy and operation throughout the whole And if the master violate it, is he not amenaUnion. The owner has the same security, and ble? The offence consists in abduction of a the same remedial justice, and the same ex- person of color. And this is attempted to be

emption from State regulation and control, justified upon the simple ground that the through however many States he may pass _ slave is property. That a slave is property with his fugitive slave in his possession... . must be admitted. The State law is not These are some of the reasons but by no violated by the seizure of the slave by the means all upon which we hold the power of master, for this is authorized by the act of legislation on this subject to be exclusive in Congress; but by removing him out of the Congress. To guard, however, against any State by force, and without proof of right, possible misconstruction of our views, it is which the act does not authorize. Now, is proper to state that we are by no means to not this an act which a State may probe understood, in any manner whatsoever to hibit? .. . doubt or to interfere with the police power The important point is, shall the presumpbelonging to the States in virtue of their tion of right set up by the master, unsusgeneral sovereignty. That police power ex- tained by any proof, or the presumption tends over all subjects within the territorial which arises from the laws and institutions limits of the States, and has never been con- of the State, prevail. This is the true issue. ceded to the United States. ... But such The sovereignty of the State is on one side, regulations can never be permitted to inter- and the asserted interest of the master on fere with or to obstruct the just rights of the the other. That interest is protected by the owner to reclaim his slave, derived from the paramount law, and a special, a summary, Constitution of the United States, or with and an effectual mode of redress is given. But the remedies prescribed by Congress to aid this mode is not pursued, and the remedy

and enforce the same. is taken into his own hands by the master.

Upon these grounds we are of opinion that The presumption of the State that the the act of Pennsylvania upon which this colored person is free may be erroneous in | indictment is founded, is unconstitutional fact; and if so, there can be no difficulty in

and void... . proving it. But may not the assertion of Judgement reversed... the master be erroneous also; and if so, how

M’.tEAN, J., dissenting. ... The slave is is his act of force to be remedied? The found in a State where every man, black or colored person is taken, and forcibly conwhite, is presumed to be free; and this State, veyed beyond the jurisdiction of the State. to preserve the peace of its citizens, and its This force, not being authorized by the act soil and jurisdiction from acts of violence, of Congress nor by the Constitution, may has prohibited the forcible abduction of per- be prohibited by the State. As the act covers sons of color. Does this law conflict with the the whole power in the Constitution, and

Constitution? It clearly does not in its carries out, by special enactments, its pro-

terms. ... visions, we are, in my judgement, bound by

No conflict can arise between the act of the act. We can no more, under such cirCongress and this State law. The conflict cumstances, administer a remedy under the can only arise between the forcible acts of Constitution in disregard of the act than the master and the law of the State. The we can exercise a commercial or other power

master exhibits no proof of right to the in disregard of an act of Congress on the services of the slave, but seizes him and is same subject. about to remove him by force. I speak only This view respects the rights of the master of the force exerted on the slave. The law and the rights of the State. It neither jeop-

of the State presumes him to be free and ards nor retards the reclamation of . the

prohibits his removal. Now, which shall give slave. It removes all State action prejudi-

THE PEOPLE Vv. FISHER 295 cial to the rights of the master; and recog- tect its own jurisdiction, and the peace of nizes in the State a power to guard and pro-__its citizens... .

159. THE PEOPLE v. FISHER N. Y. Reports, 14 Wend. 9 1835

This case illustrates the attitude of the Courts conspiring either to reduce the time of labor toward combinations of laborers organized for or to raise their wages, to the punishment the purpose of securing higher wages, in the of fine and imprisonment. I have found but early decades of the nineteenth century. See Doc. oy, aq judications upon this subject; but

No. 160. precedents, in the absence of adjudications SavacE, C. J. The legislature have given are some evidence of what the law is. Among us their definition of conspiracies, and abro- these we find precedents at common law gated the common law on the subject. We against journeymen for conspiring to raise must therefore see whether this case comes their wages and lessen the time of labor, and within the statute. The legislature have said, to compel masters to pay for a whole day’s “ . (6) To commit any act injurious to work; against journeymen lamp-lighters, for the public health, to public morals, or to conspiring to raise wages, and against jourtrade or commerce; or for the perversion or neymen curriers for the like offence; against obstruction of justice of the due administra- salt makers, for conspiring to enhance the tion of the laws—they shall be deemed guilty price of salt; . . . The immediate object in of a misdemeanor.” And in section 9, it is those cases, as in this, probably was to benedeclared that “no conspiracies, other than fit the conspirators themselves; but if their such as are enumerated in the last section, individual benefit is to work a public injury, are punishable criminally.” If the conspiracy a conspiracy for such an object is against charged in the indictment is an offence under the spirit of the common law... . this statute, it must be embraced under the Whatever disputes may exist among politisixth subdivision, and is am act injurious to cal economists upon the point, I think there

trade or commerce... . can be no doubt, in a legal sense, but what The question therefore is, is a conspiracy the wages of labor compose a material porto raise the wages of journeymen shoemakers tion of the value of manufactured articles. an act injurious to trade or commerce? The The products of mechanical labor compose

words trade and commerce are said by a large proportion of the materials with Jacobs, in his Law Dictionary, not to be which trade is carried on. By trade, I now synonymous; that commerce relates to deal- understand traffic or mutual dealings between ings with foreign nations; trade, on the con- members of the same community, or internal trary, means mutual traffic among ourselves, trade. Coarse boots and shoes are made in or the buying, selling, or exchange of articles many parts of our country; not for particubetween members of the same community. lar persons who are to wear them, but as an

That the raising of wages and a conspiracy, article of trade and commerce. Probably confederacy, or mutual agreement among such is the case in Geneva, where this ofjourneymen for that purpose is a matter of fence was committed. If journeymen bootpublic concern, and in which the public have makers, by extravagant demands for wages,

a deep interest, there can be no doubt. That so enhance the price of boots made in it was an indictable offence at common law Geneva, for instance, that boots made elseis established by legal adjudications. ... where, in Auburn, for example, can be sold Such was the construction of the common _ cheaper, is not such an act injurious to trade?

law; but in England the subject has been It is surely so to the trade of Geneva in thought sufficiently. important to require the that particular article, and that I apprehend

special attention of the legislature, and is all that is necessary to bring the offence statutes were enacted in the reign of Edward within the statute. It is important to the 6th and George 3d, which subject workmen, best interests of society that the price of

296 DOCUMENTS OF AMERICAN HIstToRY labor be left to regulate itself, or rather be to effect such an object are injurious, not limited by the demand for it. Combinations only to the individual particularly oppressed,

and confederacies to enhance or reduce the but to the public at large... . It is true prices of labor, or of any articles of trade that no great danger is to be apprehended Or commerce, are injurious. They may be on account of the impracticability of ... oppressive, by compelling the public to give universal combinations. But if universally or

more for an article of necessity or of con- even generally entered into, they would be venience than it is worth; or on the other prejudicial to trade and to the public; they hand, of compelling the labor of the mechanic are wrong in each particular case. Truth for less than its value. Without any officious is, that industry requires no such means to and improper interference of the subject, support it. Competition is the life of trade. the price of labor or the wages of mechanics If the defendants cannot make coarse boots will be regulated by the demand for the for less than one dollar per pair, let them manufactured article, and the value of that refuse to do so; but let them not directly or which is paid for it; but the right does not indirectly undertake to say that others shall

exist either to enhance the price of the not do the work for a less price. It may be article, or the wages of the mechanic, by that Pennock, from greater industry or any forced and artificial means. The man greater skill, made more profit by making who owns an article of trade or commerce’ boots at seventy-five cents per pair than is not obliged to sell it for any particular the defendants at a dollar. He had a right price, nor is the mechanic obliged by law to work for what he pleased. His employer to labor for any particular price. He may had a right to employ him for such price say that he will not make coarse boots for as they could agree upon. The interference less than one dollar per pair, but he has no of the defendants was unlawful; its tendency right to say that no other mechanic shall is not only to individual oppression, but to make them for less. The cloth merchant may public inconvenience and embarrassment.

say that he will not sell his goods for less I am of the opinion that the offence is than so much per yard, but has no right to’ indictable, and that the judgment of the say that any other merchant shall not sell general sessions of Ontario county should be for a less price. If one individual does not reversed, and that a venire de novo should

possess such a right over the conduct of issue. another, no number of individuals can pos- Judgment accordingly. sess such a right. All combinations therefore

160. COMMONWEALTH v. HUNT Mass. Reports, 4 Metcalf 45 1842

By the common law, which obtained in most fendants, together with divers other persons American States, any combination of working ynknown to the grand jurors, “on the first men for the purpose of regulating the terms of Monday of September 1840, at Boston, being employment or raising wages was a conspiracy. workmen and journeymen in the art and See; for example, the Trial oj James Melvin and = anual occupation of boot-makers, unlawOthers for Conspiracy to Raise Wages, New full ‘cious! d deceitfully desieni York City, 1810, American State Trials, Vol. Wey, Permicrousty and deceitiully designing XIII, p. 576 ff.; and People v. Fisher, Doc. No. and intending to continue, keep up, form, 159. In the famous case of Commonwealth vy. and unite themselves into an unlawful club, Hunt, Chief Justice Shaw held that a combina- society and combination, . . . did unlawfully tion of working men for this purpose was not assemble and meet together, and, ... did

illegal. then and there unjustly and corruptly ... agree together, that none of them would work

This was an indictment against the de- for any master or person whatsoever, in the fendants, (seven in number,) for a conspir- said art, mystery or occupation, who should acy. The first count alleged that the de- employ any workman or journeyman, or other

CoMMONWEALTH V. HUNT 297 person, in the said art, who was not a member lawful conspiracy, against the laws of this

of said club, society or combination, after Commonwealth... . notice given him to discharge such workman Suaw, C. J... . We have no doubt, that from the employ of such master; to the great by the operation of the constitution of this damage and oppression, not only of their said Commonwealth, the general rules of the commasters employing them in said art and occu-. mon law, making conspiracy an indictable pation, but also of divers other workmen and offence, are in force here, and that this is journeymen in the said art, mystery and included in the description of laws which had, occupation; to the evil example of all others before the adoption of the constitution, been in like case offending, and against the peace used and approved in the Province, Colony,

and dignity of the Commonwealth.” or State of Massachusetts Bay, and usually The second count charged that the de- practised in the courts of law. . . . Still it fendants, and others unknown, at the time is proper in this connexion to remark, that and place mentioned in the first count, “did although the common law in regard to conunlawfully assemble, meet, conspire, con- spiracy in this Commonwealth is in force, federate and agree together, not to work for yet it will not necessarily follow that every any master or person who should employ indictment at common law for this offence any workman not being a member of a club, is a precedent for a similar indictment in society or combination, called the Boston this State. The general rule of the common Journeymen Bootmakers’ Society in Boston, law is, that it is a criminal and indictable in Massachusetts, or should break any of offence, for two or more to confederate and their by-laws, unless such workman should combine together, by concerted means, to do

pay to said club and society such sum as that which is unlawful or criminal, to the should be agreed upon as a penalty for the injury of the public, or portions or classes breach of such unlawful rules, orders and of the community, or even to the rights of by-laws; and by means of said conspiracy, an individual. This rule of law may be they did compel one Isaac B. Wait, a master equally in force as a rule of the common cordwainer in said Boston, to turn out of law, in England and in this Commonwealth, his employ one Jeremiah Horne, a journey- and yet it must depend upon the local laws man bootmaker, because said Horne would of each country to determine, whether the not pay a sum of money to said society for purpose to be accomplished by the combinaan alleged penalty of some of said unjust tion, or the concerted means of accomplish-

rules, orders and by-laws.”. . . ing it, be unlawful or criminal in the respec-

The defendants were found guilty, at the tive countries. All those laws of the parent October term, 1840, of the municipal court, country, whether rules of the common law, and thereupon several exceptions were alleged or early English statutes, which were made:

by them to the ruling of the judge at the for the purpose of regulating the wages of trial, The only exception, which was con- laborers, the settlement of paupers, and mak-

sidered in this court, was this: “The de- ing it penal for anyone to use a trade or

fendants’ counsel contended that the indict- handicraft to which he had not served a ment did not set forth any agreement to do full apprenticeship—not being adapted to a criminal act, or to do any lawful act by the circumstances of our colonial condicriminal means; and that the agreements, tion—were not adopted, used or approved, therein set forth, did not constitute a con- and therefore do not come within the despiracy indictable by any law of this Com- scription of the laws adopted and confirmed monwealth; and they moved the court so_ by the provision of the constitution already

to instruct the jury: But the judge refused cited.... so to do, and instructed the jury that the Stripped then of these introductory recitals indictment against the defendants did, in his and alleged injurious consequences, and of opinion, describe a confederacy among the the qualifying epithets attached to the facts, defendants to do an unlawful act, and to the averment is this; that the defendants and effect the same by unlawful means: That the others formed themselves into a society, and society, organized and associated for the pur- agreed not to work for any person who pose described in the indictment, was an un- should employ any journeyman or other per-

298 DOCUMENTS OF AMERICAN HisToRy son, not a member of such society, after perceive, that it is criminal for men to agree notice given him to discharge such workman. together to exercise their own acknowledged The manifest intent of the association is, to rights, in such a manner as best to subserve induce all those engaged in the same occupa-_ their own interests. One way to test this

tion to become members of it. Such a pur- is, to consider the effect of such an agreepose is not unlawful. It would give them a ment, where the object of the association power which might be exerted for useful and is acknowledged on all hands to be a laudable

honorable purposes, or for dangerous and one. Suppose a class of workmen, impressed pernicious ones. If the latter were the real with the manifold evils on intemperance, and actual object, and susceptible of proof, should agree with each other not to work in it should have been specially charged. Such a shop in which ardent spirit was furnished, an association might be used to afford each or not to work in a shop with any one who other assistance in times of poverty, sick- used it, or not to work for an employer, who ness and distress; or to raise their intellect- should, after notice, employ a journeyman ual, moral and social condition; or to make who habitually used it. The consequences

improvement in their art; or for other might be the same. A workman, who should

proper purposes. Or the association might be _ still persist in the use of ardent spirit, would

designed for purposes of oppression and in- find it more difficult to get employment; a

justice... . master employing such an one might, at Nor can we perceive that the objects of times, experience inconvenience in his work,

this association, whatever they may have in losing the services of a skilful but. inbeen, were to be attained by criminal means. temperate workman. Still it seems to us, that The means which they proposed to employ, as the object would be lawful, and the means

as averred in this count, and which, as we not unlawful, such an agreement could not are now to presume, were established by the be pronounced a criminal conspiracy. . . .

proof, were, that they would not work for We think, therefore, that associations may a person, who, after due notice, should em-_ be entered into, the object of which is to ploy a journcyman not a member of their adopt measures that may have a tendency society. Supposing the object of the associa- to impoverish another, that is, to diminish tion to be laudable and lawful, or at least his gains and profits, and yet so far from not unlawful, are these means criminal? The _ being criminal or unlawful, the object may

case supposes that these persons are not be highly meritorious and public spirited. bound by contract, but free to work for The legality of such an association will therewhom they please, or not to work, if they fore depend upon the means to be used for so prefer. In this state of things, we cannot its accomplishment... . 161. THE WEBSTER-ASHBURTON TREATY August 9, 1842 (Malloy, ed. Treaties, Conventions, etc. Vol. I, p. 650 ff.) This treaty finally settled the long-standing sonal friend of Webster’s. On the northeastern northeastern boundary dispute between the boundary dispute and the Treaty, see Webster’s United States and Canada. In 1827 a convention — speech, in Works, Vol. V, p. 78 ff.; J. B. Moore, had referred the dispute to the arbitration of the History of International Arbitrations, Vol. I, chs. King of the Netherlands, but his award had been iff.; W. F. Ganong, The Boundaries of New rejected by both Great Britain and the United Brunswick; H. S. Burrage, Maine in the North-

States. In 1838 the dispute precipitated the eastern Boundary Controversy; E. D. Adams, “Aroostook War” between the inhabitants of ‘Lord Ashburton and the Treaty of Washington,” Maine and New Brunswick. The Webster-Ash- American Hist. Rev., July, 1912; S. F. Bemis, burton Treaty embraced other outstanding dis- cd. American Secretaries of State, Vol. V, p. 20 ff.

eae Paricwanly vey me affuits’ soe Doe Treaty to Settle and De fine Boundaries ; for No. 156. The negotiations were conducted with the Final Suppression of the African Slaveamiability on both sides: Ashburton, the Ameri- Trade; and for the Giving up of Criminals

can representative of the Barings, was a per- Fugitive from Justice.

Toe WEBSTER-ASHBURTON TREATY 299 Arr. I. It is hereby agreed and declared Canada on the other; and from said point of that the line of boundary shall be as follows: intersection, west, along the said dividing Beginning at the monument at the source of line, as heretofore known and understood, to the river St. Croix as designated and agreed the Iroquois or St. Lawrence River... .

to by the Commissioners under the fifth Art. II. It is moreover agreed, that, from article of the treaty of 1794, between the the place where the joint commissioncrs Covernments of the United States and Great terminated their labors under the sixth article

Britain; thence, north, following the explor- of the treaty of Ghent, to wit: at a point ing line run and marked by the surveyors of in the Neebish channel, near Muddy Lake, the two Governments in the years 1817 and the line shall run into and along the ship

1818, under the fifth article of the treaty channel between St. Joseph and St. Tamof Ghent, to its intersection with the river many islands, to the division of the channel St. John, and to the middle of the channel at or near the head of St. Joseph’s island; thereof; thence, up the middle of the main thence, turning eastwardly and northwardly

channel of the said river St. John, to the around the lower end of St. George’s or

mouth of the river St. Francis; thence, up Sugar island, and following the middle of the the middle of the channel of the said river channel which divides St. George’s from St. St. Francis, and of the lakes through which Joseph’s island; thence up the east Neebish

it flows, to the outlet of the Lake Pohena- channel, nearest to St. George’s island, gamook: thence, southwesterly, in a straight through the middle of Lake George; thence, line, to a point on the northwest branch of _ west of Jonas’ island, into St. Mary’s river, the river St. John, which point shall be ten to a point in the middle of that river, about miles distant from the main branch of- the one mile above St. George’s or Sugar island,

St. John, in a straight line, and in the near- so as to appropriate and assign the said est direction; but if the said point shall be island to the United States; thence, adopting found to be less than seven miles from the the line traced on the maps by the commisnearest point of the summit or crest of the sioners, through the river St. Mary and Lake highlands that divide those rivers which Superior, to a point north of Me Royale, in empty themselves into the river St. Law- said lake, one hundred yards to the north

rence from those which fall into the river and east of Jle Chapeau, which _last-

St. John, then, the said point shall be made mentioned island lies near the northeastern to recede down the said northwest branch point of Ile Royale, where the line marked of the river St. John, to a point seven miles by the commissioners terminates; and from in a straight line from the said summit or the last-mentioned point, southwesterly, crest; thence, in a straight line, in a course through the middle of the sound between He about south, eight degrees west, to the point Royale and the northwestern main land, to where the parallel of latitude of 46° 25’ the mouth of Pigeon river, and up the said north‘intersects the southwest branch of the river, to and through the north and south

St. John’s; thence, southerly, by the said Fowl Lakes, to the lakes of the height of branch, to the source thereof in the high- land between Lake Superior and the Lake of lands at the Metjarmette portage; thence, the Woods; thence, along the water comdown along the said highlands which divide munication to Lake Saisaginaga, and through the waters which empty themselves into the that lake; thence, to and through Cypress river St. Lawrence from those which fall into Lake, Lac du Bois Blanc, Lac la Croix, Little

the Atlantic Ocean, to the head of Hall’s Vermilion Lake, and Lake Namecan, and Stream; thence, down the middle of said through the several smaller lakes, straits, or stream, till the line thus run intersects the streams, connecting the lakes here mentioned, old line of boundary surveyed and marked _ to that point in Lac la Pluie, or Rainy Lake, by Valentine and Collins, previously to the at the Chaudiére Falls, from which the comyear 1774, as the 45th degree of north lati- missioners traced the line to the most northtude, and which has been known and under- western point of the Lake of the Woods; stood to be the line of actual division be- thence, along the said line, to the said most tween the States of New York and Vermont northwestern point, being in latitude 49° on one side, and the British province of 23’ 55” north, and in longitude 95° 14’ 338”

300 DOCUMENTS OF AMERICAN HIstToRy west from the observatory at Greenwich; vessels, of suitable numbers and descriptions, thence, according to existing treaties, due to carry in all not less than elghty guns, to south to its intersection with the 49th parallel enforce, separately and respectively, the laws, of north latitude, and along that parallel to rights, and obligations, of each of the two the Rocky mountains. It being understood countries, for the suppression of the slave that all the water communications and all trade; the said squadrons to be independent the usual portages along the line from Lake of each other: but the two Governments Superior to the Lake of the Woods, and also stipulating, nevertheless, to give such orders

Grand portage, from the shore of Lake to the officers commanding their respective Superior to the Pigeon river, as now actually forces as shall enable them most effectually

used, shall be free and open to the use of to act in concert and co-operation, upon the citizens and subjects of both coun- mutual consultation, as exigencies may arise,

tries... . for the attainment of the true object of this

Art. VIII. The parties mutually stipulate article; copies of all such orders to be comthat each shall prepare, equip, and maintain municated by each Government to the other, in service, on the coast of Africa, a sufficient respectively.

and adequate squadron, or naval force of

1841 |

162. THE CONSTITUTION OF THE BROOK FARM ASSOCIATION (O. B. Frothingham, Transcendentalism in New England, p. 159 ff.) Brook Farm, by virtue of the distinguished principles of justice and love to our social character of its membership and of its literary organization in accordance with the laws of associations, is the most famous of those Utopian Djvine Providence; to substitute a system experiments which flourished in the generation of brotherly codperation for one of selfish preceding the Civil War. It was established at competition: to secure to our children and West Roxbury, Massachusetts, some nine miles those who may be entrusted to our care. the

south of Boston, and among its members were y ;

George Ripley, J. S. Dwight, Charles A. Dana, benefits of the highest physical, intellectual and Nathaniel Hawthorne, while almost the @md moral education, which in the progress whole of literary Boston and Concord frequented Of knowledge the resources at our command its halls. A disastrous fire brought the experiment will permit; to institute an attractive, efto an untimely end in 1846. See, L. Swift, Brook ficient, and productive system of industry; Farm; O. B. Frothingham, George Ripley, chs. to prevent the exercise of worldly anxiety, lii-iv; O. B. Frothingham, Transcendentalism in by the competent supply of our necessary

New England, ch. vit J.T. Codman, B rook wants; to diminish the desire of excessive Farm; J. H. Noyes, History of American Social accumulation, by making the acquisition of United States; H. Semler, Geschichte der Social- individual property subservient to upright ismus und Communismus in Nord America. For and disinterested uses; to guarantee to each other communistic experiments, see C. Nordhoff, other forever the means of physical support, The Communistic Societies of the United States; and of spiritual progress; and thus to imW. A. Hinds, American Communities and Co- part a greater freedom, simplicity, truthoperative Colonies; G. B. Lockwood, The New fulness, refinement, and moral dignity, to our

isms; M. Hillquit, History of Socialism in the ‘~~~’. .

Mer mony i eee B. a“, a Spampangn, mode of life;—we the undersigned do unite i. snaw, fcarid, A. MIUKKEISEn, and 4) adopt imana; Hill Colony; R. J. MM. Hendricks, Bethel and0]inAssociation, a VO untary P and

Aurore Hawthorne’s lithedale Romance gives a ordain the following articles of agreement,

somewhat unfair picture of Brook Farm. to wit:

CONSTITUTION ARTICLE I In order more effectually to promote the Sec. 1. The name of this Association shall great purposes of human culture; to es- be “THE BrooK-FARM ASSOCIATION FOR tablish the external relations of life on a INpusTRY AND EpucaTIon.” All persons who basis of wisdom and purity; to apply the — shall hold one or more shares in its stock, or

DoROTHEA D1ix’s MEMORIAL 301 whose labor and skill shall be considered an Sec. 2. The Association guarantees to all its

equivalent for capital, may be admitted by members, their children, and family dethe vote of two-thirds of the Association, as pendents, house-rent, fuel, food, and cloth-

members thereof. ! ing, and the other necessaries of life, withSec. 2. No member of the Association shall out charge, not exceeding a certain fixed ever be subjected to any religious test; nor amount to be decided annually by the Asshall any authority be assumed over individ- sociation; no charge shall ever be made for ual freedom of opinion by the Association, support during inability to labor from sicknor by any one member over another; nor ness or old age, or for medical or nursing shall any one be held accountable to the attendance, except in case of shareholders, Association, except for such overt acts, omis- who shall be charged therefor . . . but no sions of duty, as violate the principles of charge shall be made to any members for justice, purity, and love, on which it is education or the use of library and public founded; and in such cases the relation of rooms... .

any member may be suspended, or discon- Articie V tinued, at the pleasure of the Association.

Sec. 1. The government of the Association

ArticLE II shall be vested in a board of Directors, i, divided into four departments as follows;

Sec. 1. The members of this Association shall Ist, General Direction: 2d, Direction of own and manage such real and personal = faucation; 3d., Direction of Industry; 4th, estate in joint stock proprietorship, divided Direction of Finance: consisting of three into shares of one hundred dollars, each, as persons each... . may from time to time be agreed OR ss Sec. 5. The departments of Education and Sec. 4. The shareholders on their part, for Finance shall be under the control each of themselves, their heirs and assigns, do re- its own Direction, which shall select, and in

nounce all cl aim on any profits accruing | tO concurrence with the General Direction, shall the Association for the use of their capital appoint such teachers, officers, and agents, as

invested in the stock of the Association, shall be necessary to the complete and except five per cent, interest on the amount systematic organization of the department. of stock held by them, payable 0 the manner No Directors or other officers shall be

described in the preceding section. deemed to possess any rank superior to the other members of the Association, nor shall

ArTicLe Il they receive any extra remuneration for their Sec. 1. The Association shall provide such official services. employment for all its members as shall be Sec. 6. The department of Industry shall be

adapted to their capacities, habits, and arranged in groups and series, as far as tastes; and each member shall select and _ practicable, and shall consist of three priperform such operations of labor, whether mary series; to wit, Agricultural, Mechanical, corporal or mental, as shall be deemed best and Domestic Industry. The chief of each suited to his own endowments, and the bene- series shall be elected every two months by

fit of the Association. the members thereof. .. .

163. DOROTHEA DIX’S MEMORIAL TO THE LEGISLATURE OF MASSACHUSETTS January, 1843

(Old South Leaflets, No. 148) In March 1841, Dorothea Dix, visiting a jail house, was presented to the Legislature by some in East Cambridge, Massachusetts, found insane of her influential friends. The Memorial propersons kept in an unheated room. The following duced a profound sensation: it was referred to a two years she spent investigating the jails and committee of which Dr. Samuel G. Howe was almshouses of Massachusetts, and in January chairman and reported with recommendations

1843 her report, dated from Dr. Channing’s for relief. Within a short time Massachusetts |

302 DocUMENTS OF AMERICAN HISTORY made more adequate provision for her insane, but am ready to furnish other and more and Miss Dix entered upon a larger field of complete details, if required. philanthropic work which embraced most of the If my pictures are displeasing, coarse, and States of the American Union and several Euro- severe, my subjects, it must be recollected, of-

pean countries. F. Dix. Tiffany, Life refined, of Dorothea f ; .features. Lynde Dix: A.S. Roe, See, Dorothea er no tranquil, or composing

The condition of human beings, reduced to the

Gentlemen,—I respectfully ask to present extremest states of degradation and misery this Memorial, believing that the cause, cannot be exhibited in softened language, or which actuates to and sanctions so unusual a adorn a polished page. movement, presents no equivocal claim to I proceed, gentlemen, briefly to call your

public consideration and sympathy... . attention to the present state of insane perAbout two years since leisure afforded op- sons confined within this Commonwealth, portunity and duty prompted me to visit in cages, closets, cellars, stalls, pens! Chained, several prisons and almshouses in the vicinity naked, beaten with rods, and lashed into

of this metropolis. I found, near Boston, obedience... . in the jails and asylums for the poor, a It is the Commonwealth, not its integral numerous class brought into unsuitable con- parts, that 1s accountable for most of the nection with criminals and the general mass abuses which have lately and do still exist. of paupers. I refer to idiots and insane per- I repeat it, it is defective legislation which sons, dwelling in circumstances not only ad- perpetuates and multiplies these abuses. In verse to their own physical and moral im- illustration of my subject, I offer the follow-

provement, but productive of extreme ing extracts from my Note-book and Jourdisadvantages to all other persons brought into nal:— association with them. I applied myself dili- Spring field. In the jail, one lunatic woman,

gently to trace the causes of these evils, and furiously mad, a State pauper, improperly sought to supply remedies. As one obstacle situated, both in regard to the prisoners, the was surmounted, fresh difficulties appeared. keepers, and herself. It is a case of extreme Every new investigation has given depth to _ self-forgetfulness and oblivion to all the the conviction that it is only by decided, decencies of life, to describe which would be

prompt, and vigorous legislation the evils to repeat only the grossest scenes. She is to which I refer, and which I shall proceed much worse since leaving Worcester. In the more fully to illustrate, can be remedied. I almshouse of the same town is a woman apshall be obliged to speak with great plain- parently only needing judicious care, and some ness, and to reveal many things revolting well-chosen employment, to make it unnecesto the taste, and from which my woman’s _ sary to confine her in solitude, in a dreary nature shrinks with peculiar sensitiveness. unfurnished room. Her appeals for employBut truth is the highest consideration. J tel] ment and companionship are most touching, what I have seen—painful and shocking as but the mistress replied “‘she had no time to

the details often are—that from them you attend to her.”. . . may feel more deeply the imperative obliga- Lincoln. A woman in a cage. Medford. tion which lies upon you to prevent the pos- One idiotic subject chained, and one in a sibility of a repetition or continuance of close stall for seventeen years. Pepperell.

such outrages upon humanity... . One often doubly chained, hand and foot;

I come to present the strong claims of suf- another violent; several peaceable now. fering humanity. I come to place before the Brookfield. One man caged, comfortable. Legisiature of Massachusetts the condition Granville. One often closely confined; now of the miserable, the desolate, the outcast. I losing the use of his limbs from want of come as the advocate of helpless, forgotten, exercise. Charlemont. One man caged. Savoy. insane, and idiotic men and women; of beings One man caged. Lenox. Two in the jail, sunk to a condition from which the most against whose unfit condition there the jailer unconcerned would start with real horror; protests. of beings wretched in our prisons, and more Dedham. The insane disadvantageously

wretched in our almshouses. .. . placed in the jail. In the almshouse, two

I must confine myself to few examples, females in stalls, situated in the main build-

DoroTHEA D1ix’s MEMORIAL 303 ing; lie in wooden bunks filled with straw; degree of violence to another, in swift progalways shut up. One of these subjects is ress. There she stood, clinging to or beating supposed curable. The overseers of the poor upon the bars of her caged apartment, the have declined giving her a trial at the hospi- contracted size of which afforded space only tal, as I was informed, on account of ex- for increasing accumulations of filth, a foul

pense. ... spectacle. There she stood with naked arms

Besides the above, I have seen many who, and dishevelled hair, the unwashed frame inpart of the year, are chained or caged. The vested with fragments of unclean garments,

use of cages all but universal. Hardly a town _ the air so extremely offensive, though ventila-

but can refer to some not distant period of tion was afforded on all sides save one, that using them; chains are less common; negli- it was not possible to remain beyond a few gences frequent; wilful abuse less frequent moments without retreating for recovery to than sufferings proceeding from ignorance, or the outward air. Irritation of body, produced want of consideration. I encountered during by utter filth and exposure, incited her to the

the last three months many poor creatures horrid process of tearing off her skin by wandering reckless and unprotected through inches. Her face, neck, and person were the country. . . . But I cannot particularize. thus disfigured to hideousness. She held up In traversing the State, I have found hun- a fragment just rent off. To my exclamadreds of insane persons in every variety of _ tion of horror, the mistress replied: “Oh, we circumstance and condition, many whose can’t help it. Half the skin is off sometimes. situation could not and need not be im- We can do nothing with her; and it makes proved; a less number, but that very large, no difference what she eats, for she consumes whose lives are the saddest pictures of human her own filth as readily as the food which

suffering and degradation. is brought her.” I give a few illustrations; but description Men of Massachusetts, I beg, I implore, fades before reality. I demand pity and protection for these of Danvers. November. Visited the almshouse. my suffering, outraged sex. Fathers, hus‘A large building, much out of repair. Under- bands, brothers, I would supplicate you for

stand a new one is in contemplation. Here this boon; but what do I say? I dishonor are from fifty-six to sixty inmates, one idiotic, you, divest you at once of Christianity and three insane; one of the latter in close con- humanity, does this appeal imply distrust.

‘finement at all times. If it comes burdened with a doubt of your

Long before reaching the house, wild righteousness in this legislation, then blot it shouts, snatches of rude songs, imprecations out; while I declare confidence in your and obscene language, fell upon the ear, pro- honor, not less than your humanity. Here ceeding from the occupant of a low building, you will put away the cold, calculating spirit rather remote from the principal building to of selfishness and self-seeking; lay off the which my course was directed. Found the armor of local strife and political opposition;

mistress, and was conducted to the place here and now, for once, forgetful of the which was called “the home” of the forlorn earthly and perishable, come up to these halls

maniac, a young woman, exhibiting a condi- and consecrate them with one heart and tion of neglect and misery blotting out the one mind to works of righteousness and faintest idea of comfort, and outraging every just judgment.

‘sentiment of decency. She had been, I learnt, Become the benefactors of your race,

“a respectable person, industrious and the just guardians of the solemn rights worthy. Disappointments and trials shook you hold in trust. Raise up the fallen,

her mind, and, finally, laid prostrate reason succor the desolate, restore the outcast, deand self-control. She became a maniac for fend the helpless, and for your eternal and life. She had been at Worcester Hospital great reward receive the benediction, “Well for a considerable time, and had been re- done, good and faithful servants, become turned as incurable.” The mistress told me rulers over many things!”

she understood that, “while there, she was Injustice is also done to the convicts: it comfortable and decent.” Alas, what a change is certainly very wrong that they should be ‘was here exhibited! She had passed from one doomed day after day and night after night

304 DOCUMENTS OF AMERICAN History | to listen to the ravings of madmen and to what it was originally designed to be or madwomen. This is a kind of punishment else make some just appropriation for the that is not recognized by our statutes, and benefit of this very unfortunate class of our

_ is what the criminal ought not to be called “fellow-beings.” |

upon to undergo. The confinement of the Gentlemen, I commit to you this sacred criminal and of the insane in the same build- cause. Your action upon this subject will af-

ing is subversive of that good order and fect the present and future condition of hundiscipline which should be observed in every dreds and of thousands. In this legislation, as well-regulated prison. I do most sincerely in all things, may you exercise that “wisdom hope that more permanent provision will be which is the breath of the power of God.”

made for the pauper insane by the State, Respectfully submitted,

elther to restore Worcester Insane Asylum D. L. Dix. 164. CLAY’S RALEIGH LETTER April 17, 1844 (Niles’ National Register, Vol. LXVI, p. 152-3)

It was apparent, early in 1844, that Clay would should become an integral part of the United

be the Whig nominee for the Presidency, and it States... . To the astonishment of the

was commonly believed that Van Buren would . . : Van Buren visited Clay at Ashland and came y © ann exation has been actually con; e him luded, andtheisTexas to bou bmitted to tne thsenate to an agreement; with to eliminate ae is pe sub ‘Oo be nominated by the Democrats. Early in 1844 whore nen ons we (are now informed that a

question from the campaign. Accordingly on for its consideration. The motives for my April 17 both candidates published letters op- Sience, therefore, no longer remain, and I

posing immediate annexation. Van Buren’s letter feel it to be my duty to present an exposiin all probability cost him the nomination. Clay’s tion of my views and opinions upon the letter so embarrassed him in the campaign that question, for what they may be worth, to the he sought to explain it away in a series af letters public consideration. I adopt this method known as the “Alabama letters’—but without 4s being more convenient than several replies SUCCESS. Clay was deteated by Polk who was to the respective communications which I pledged to immediate annexation. The letters of have received

Clay and Van Buren and the subsequent Alabama

letters can be found in Niles Register, Vol. LXVI. I regret that I have not the advantage of See, C. Schurz, Henry Clay, Vol. II; T.C. Smith, 4 View of the treaty itself, so as to enable The Liberty and Free Soil Parties; E.M.Shep- me to adapt an expression of my opinion to

ard, Martin Van Buren. the actual conditions and stipulations which it contains. Not possessing that opportunity,

To THE EpiTors Or THE NATIONAL I am constrained to treat the question ae.

INTELLIGENCER cording to what I presume to be the terms Raleigh, April 17, 1844. of the treaty. If, without the loss of national Gentlemen: Subsequent to my departure character, without the hazard of foreign war, from Ashland, in December last, I received with the general concurrence of the nation,

various communications from popular as- without any danger to the integrity of the semblages and private individuals, requesting Union, and without giving an unreasonable an expression of my opinion upon the ques-_ price for Texas, the question of annexation

tion of the annexation of Texas to the were presented, it would appear in quite a United States. ... The rejection of the different light from that in which, I apoverture of Texas, some years ago, to become _ prehend, it 1s now to be regarded... .

annexed to the United States, had met with Annexation and war with Mexico are general acquiescence. Nothing had since oc- identical. Now, for one, I certainly am not curred materially to vary the question. I willing to involve this country in a foreign

had seen no evidence of a desire being en- war for the object of acquiring Texas. I know : tertained, on the part of any considerablee there are those who regard such a war with portion of the American people, that Texas indifference and as a trifling affair, on ac-

Cray’s RALEIGH LETTER 305 count of the weakness of Mexico, and her of it, in decided opposition to the wishes ofa inability to inflict serious injury upon this considerable and respectable portion of the

country. But I do not look upon it thus confederacy. I think it far more wise and lightly. I regard all wars as great calamities, important to compose and harmonize the to be avoided, if possible, and honorable present confederacy, as it now exists, than peace as the wisest and truest policy of this to introduce a new element of discord and

country. What the United States most need distraction into it. ... Mr. Jefferson exare union, peace, and patience. Nor do I pressed the opinion, and others believed, that think that the weakness of a power should it never was in the contemplation of the form a motive, in any case, for inducing us framers of the constitution to add foreign to engage in or to depreciate the evils of territory to the confederacy, out of which war.—Honor and good faith and justice are new states were to be formed. The acquisiequally due from this country towards the tions of Louisiana and Florida may be deweak as towards the strong. And, if an act fended upon the peculiar ground of the relaof injustice were to be perpetrated towards tion in which they stood to the states of the any power, it would be more compatible with Union. After they were admitted, we might the dignity of the nation, and, in my judg- well pause a while, people our vast wastes, ment, less dishonorable, to inflict it upon a develop our resources, prepare the means of powerful instead of a weak foreign nation. defending what we possess, and augment our But are we perfectly sure that we should be strength, power, and greatness. If hereafter

free from injury in a state of war with further territory should be wanted for an Mexico? Have we any security that count- increased population, we need entertain no less numbers of foreign vessels, under the apprehensions but that it will be acquired by authority and flag of Mexico, would not prey means, it is to be hoped, fair, honorable, and upon our defenceless commerce in the Mexi- constitutional. can gulf, on the Pacific ocean, and on every It is useless to disguise that there are those other sea and ocean? What commerce, on the who espouse and those who oppose the annexother hand, does Mexico offer, as an indem- ation of Texas upon the ground of the influnity for our losses, to the gallantry and enter- ence which it would exert, in the balance of

prise of our countrymen? This view of the political power, between two great sections subject supposes that the war would be con- of the Union. I conceive that no motive for fined to the United States and Mexico as the the acquisition of foreign territory would be only belligerents. But have we any certain more unfortunate, or pregnant with more guaranty that Mexico would obtain no allies fatal consequences, than that of obtaining it

among the great European powers? .. . for the purpose of strengthening one part Assuming that the annexation of Texas is against another part of the common confed-

war with Mexico, is it competent to the eracy. Such a principle, put into practical treaty-making power to plunge this country operation, would menace the existence, if it into war, not only without the concurrence of, did not certainly sow the seeds of a dissolubut without deigning to consult congress, to tion of the Union. It would be to proclaim to which, by the constitution, belongs exclusively the world an insatiable and unquenchable

the power of declaring war? thirst for foreign conquest or acquisition of

I have hitherto considered the question territory. For if today Texas be acquired to upon the supposition that the annexation is strengthen one part of the confederacy, toattempted without the assent of Mexico. If morrow Canada may be required to add she yields her consent, that would materially strength to another. And, after that might affect the foreign aspect of the question, if it have been obtained, still other and further did not remove all foreign difficulties. On the acquisitions would become necessary to assumption of that assent, the question would equalize and adjust the balance of political be confined to the domestic considerations power. Finally, in the progress of this spirit which belong to it, embracing the terms and of universal dominion, the part of the conconditions upon which annexation is pro- federacy which is now weakest, would find posed. I do not think that Texas ought to be _ itself still weaker from the impossibility of received into the Union, as an integral part securing new theatres for those peculiar in-

306 DOCUMENTS OF AMERICAN HISTORY stitutions which it is charged with being de- the friend of both, between them, each could

sirous to extend. advance its own happiness by such constituBut would Texas, ultimately, really add tions, laws, and measures, as were best

strength to that which is now considered the adapted to its peculiar condition. They would

weakest part of the confederacy? If my in- be natural allies, ready, by co-operation, to formation be correct, it would not. Accord- repel any European or foreign attack upon ing to that, the territory of Texas is suscepti- either. Each would afford a secure refuge to ble of a division into five states of convenient the persecuted and oppressed driven into exile size and form. Of these, two only would be _ by either of the others. They would emulate adapted to those peculiar institutions to which each other in improvements, in free institu-

I have referred, and the other three, lying tions, and in the science of self-government. west and north of San Antonio, being only Whilst Texas has adopted our constitution as

adapted to farming and grazing purposes, the model of hers, she has, in several imfrom the nature of their soil, climate, and portant particulars, greatly improved upon it. productions, would not admit of those insti- Although I have felt compelled, from the tutions. In the end, therefore, there would be nature of the inquiries addressed to me, to two slave and three free states probably extend this communication to a much greater added to the Union. If this view of the soil length than I could have wished, I could not and geography of Texas be correct, it might do justice to the subject, and fairly and fully serve to diminish the zeal both of those who expose my own opinions in a shorter space. In

oppose and those who are urging annexa- conclusion, they may be stated in a few

tion. ... words to be, that I consider the annexation of In the future progress of events, it is Texas, at this time, without the assent of

probable that there will be a voluntary or Mexico, as a measure compromising the naforcible separation of the British North tional character, involving us certainly in war American possessions from the parent coun- with Mexico, probably with other foreign try. I am strongly inclined to think that it powers, dangerous to the integrity of the will be best for the happiness of all parties Union, inexpedient in the present financial that, in that event, they should be erected condition of the country, and not called for into a separate and independent republic. by any general expression of public opinion. With the Canadian republic on one side, that Iam, respectfully, your obedient servant,

of Texas on the other, and the United States, HENRY CLAY. 165. THE ANNEXATION OF TEXAS Joint Resolution of Congress annexing Texas to the United States March 1, 1845 (U.S. Statutes at Large, Vol. V, p. 797-8) Texas, inhabited largely by Americans, achieved two-thirds vote in the Senate. Fear of English independence from Mexico in 1836; independence __ designs in Texas played a considerable réle in has-

was recognized by the United States and most _ tening annexation. See, J. H. Smith, The Annexaof the powers of Europe, but not by Mexico. tzon of Texas; E. D. Adams, British Interests and

The project of annexation to the United States Activities in Texas; S. F. Bemis, ed. American was continually agitated, and a treaty of an- Secretaries of State, Vol. V, passim; J. S. Reeves, nexation negotiated in 1844 which had been re- American Diplomacy under Tyler and Polk. jected by the Senate became the major issue of

the campaign of 1844. The triumph of Polk on a Resolved ... , That Congress doth con-

_ platform calling for the “re-annexation” of sent that the territory properly included Texas, appeared to give a mandate from the within, and rightfully belonging to the ReAmerican people for annexation, and accordingly hic of Texas, may be erected into a new a joint resolution for annexation was pushed State, to be called the State of Texas, with through Congress and approved March 1. This a | was the first occasion of the use of the joint Yepublican form of government, to be resolution to achieve a desired result in foreign adopted by the people of said republic, by relations instead of a treaty, which demanded a deputies jin convention assembled, with the

TEXAS AND OREGON 307 consent of the existing government, in order which shall be entitled to admission under that the same may be admitted as one of the the provisions of the federal constitution.

States of this Union. And such States as may be formed out of

2. That the foregoing consent of Congress’ that portion of said territory lying south of is given upon the following conditions, and thirty-six degrees thirty minutes north latiwith the following guarantees, to wit: First, tude, commonly known as the Missouri comSaid State to be formed, subject to the ad- promise line, shall be admitted into the Union justment by this government of all questions with or without slavery, as the people of each of boundary that may arise with other gov- State asking admission may desire. And in ernments; and the constitution thereof, with such State or States as shall be formed out the proper evidence of its adoption by the of said territory north of said Missouri compeople of said Republic of Texas, shall be promise line, slavery, or involuntary servitransmitted to the President of the United tude, (except for crime,) shall be prohibited.

States, to be laid before Congress for its 3. That if the President of the United

final action, on or before the first day of States shall in his judgment and discretion January, one thousand eight hundred and deem it most advisable, instead of proceeding forty-six. Second, Said State, when admitted to submit the foregoing resolution to the Reinto the Union, after ceding to the United public of Texas, as an overture on the part States, all public edifices, fortifications, bar- of the United States for admission, to nego-

racks, ports and harbors, navy and navy- tiate with that Republic; then, yards, docks, magazines, arms, armaments, Be it resolved, That a State, to be formed and all other property and means pertaining out of the present Republic of Texas, with to the public defence belonging to said Re- suitable extent and boundaries, and with two public of Texas, shall retain all the public representatives in Congress, until the next funds, debts, taxes, and dues of every kind, apportionment of representation, shall be adwhich may belong to or be due and owing mitted into the Union, by virtue of this act, said republic; and shall also retain all the on an equal footing with the existing States, vacant and unappropriated lands lying within as soon as the terms and conditions of such its limits, to be applied to the payment of the admission, and the cession of the remaining debts and liabilities of said Republic of Texas, Texian territory to the United States shall be and the residue of said lands, after discharg- agreed upon by the Governments of Texas ing said debts and liabilities, to be disposed and the United States: And that the sum of

of as said State may direct; but in no event one hundred thousand dollars be, and the are said debts and liabilities to become a same is hereby, appropriated to defray the charge upon the Government of the United expenses of missions and negotiations, to States. Third. New States, of convenient size, agree upon the terms of said admission and not exceeding four in number, in addition to cession, either by treaty to be submitted to said State of Texas, and having sufficient pop- _ the Senate, or by articles to be submitted to ulation, may hereafter, by the consent of said the two houses of Congress, as the President State, be formed out of the territory thereof, may direct.

166. TEXAS AND OREGON Extract from Polk’s Inaugural Address March 4, 1845 (Richardson, ed. Messages and Papers, Vol. IV, p. 379 ff.) The Democratic campaign of 1844 had been J. S. Reeves, American Diplomacy under Tyler fought on the platform of the “re-annexation of and Polk. Texas and the re-occupation of Oregon”. Polk, a confirmed expansionist, announced his adherence

to these policies in his inaugural address. Of par- ... The Republic of Texas has made

ticular interest is Polk’s statement that “our title known her desire to come into our Union, to to the country of Oregon is clear and unques- [fOrm a part of our Confederacy and enjoy tionable.” See, E. I. McCormac, James K. Polk; with us the blessings of liberty secured and

308 DOCUMENTS OF AMERICAN HisTorRy guaranteed by our Constitution. Texas was independent state or becomes an ally or once a part of our country—was unwisely dependency of some foreign nation more ceded away to a foreign power—is now inde- powerful than herself. Is there one among pendent, and possesses an undoubted right to our citizens who would not prefer perpetual dispose of a part or the whole of her territory peace with Texas to occasional wars, which so and to merge her sovereignty as a separate often occur between bordering independent and independent state in ours. I congratulate nations? Is there one who would not prefer

my country that by an act of the late Con- free intercourse with her to high duties on gress of the United States the assent of this all our products and manufactures which enter Government has been given to the reunion, her ports or cross her frontiers? Is there one and it only remains for the two countries to who would not prefer an unrestricted com-

agree upon the terms to consummate an ob- munication with her citizens to the frontier |

ject so important to both. obstructions which must occur if she remains

I regard the question of annexation as be- out of the Union? Whatever is good or evil longing exclusively to the United States and _ in the local institutions of Texas will remain Texas. They are independent powers compe- her own whether annexed to the United States

tent to contract, and foreign nations have no or not. None of the present States will be right to interfere with them or to take excep- _ responsible for them any more than they are

tions to their reunion. Foreign powers do for the local institutions of each other. They not seem to appreciate the true character of have confederated together for certain speciour Government. Our Union is a confedera- fied objects. Upon the same principle that tion of independent States, whose policy is they would refuse to form a perpetual union peace with each other and all the world. To with Texas because of her local institutions enlarge its limits is to extend the dominions our forefathers would have been prevented of peace over additional territories and in- from forming our present Union. Perceiving creasing millions. The world has nothing to no valid objection to the measure and many fear from military ambition in our Govern- reasons for its adoption vitally affecting the ment. While the Chief Magistrate and the pop- _ peace, the safety, and the prosperity of both ular branch of Congress are elected for short countries, I shall on the broad principle which terms by the suffrages of those millions who formed the basis and produced the adoption

must in their own persons bear all the burdens of our Constitution, and not in any narrow : and miseries of war, our Government can _ spirit of sectional policy, endeavor by all not be otherwise than pacific. Foreign powers constitutional, honorable, and appropriate should therefore look on the annexation of means to consummate the expressed will of Texas to the United States not as the con- the people and Government of the United quest of a nation seeking to extend her do- States by the reannexation of Texas to our minions by arms and violence, but as the Union at the earliest practicable period.

peaceful acquisition of a territory once her Nor will it become in a less degree my own, by adding another member to our con- duty to assert and maintain by all constitufederation, with the consent of that member, tional means the right of the United States thereby diminishing the chances of war and to that portion of our territory which lies opening to them new and ever-increasing beyond the Rocky Mountains. Our title to the

markets for their products. country of the Oregon is “clear and unquesTo Texas the reunion is important, because __tionable,” and already are our people prethe strong protecting arm of our Government paring to perfect that title by occupying it

would be extended over her, and the vast with their wives and children. But eighty resources of her fertile soil and genial climate years ago our population was confined on the would be speedily developed, while the safety west by the ridge of the Alleghanies. Within of New Orleans and of our whole southwest- that period—within the lifetime, I might say,

ern frontier against hostile aggression, as of some of my hearers—our people, increaswell as the interests of the whole Union, ing to many millions, have filled the eastern

would be promoted by it... . valley of the Mississippi, adventurously as-

None can fail to see the danger to our cended the Missouri to its headsprings, and

safety and future peace 1f Texas remains an are already engaged in establishing the bless-

PoLtxk’s REASSERTION OF THE MONROE DOCTRINE 309 ings of self-government in valleys of which for their homes. The increasing facilities of the rivers flow to the Pacific. The world be- intercourse will easily bring the States, of holds the peaceful triumphs of the industry — which the formation in that part of our terriof our emigrants. To us belongs the duty of tory can not be long delayed, within the protecting them adequately wherever they sphere of our federative Union. In the meanmay be upon our soil. The jurisdiction of time every obligation imposed by treaty or our laws and the benefits of our republican conventional stipulations should be sacredly institutions should be extended over them in respected... . the distant regions which they have selected

167. THE REASSERTION OF THE MONROE DOCTRINE Extract from President Polk’s First Annual Message to Congress December 2, 1845 (Richardson, ed. Messages and Papers, Vol. IV, p. 398 ff.) This message of Polk’s was, according to Pro- exemption from European interference. The fessor Perkins, “second only in importance” nations of America are equally sovereign and to the original Monroe Doctrine. It inaugurated independent with those of Europe. They posa new cra in the history of the doctrine, and was cece the same rights, independent of all forclosely connected with Polk’s policy toward Ore- eign interposition, to make war, to conclude continent” rather than, as in the case of Monroe, peace, and to regulate their internal affairs. of “these continents”. On the revival of the Doc- the people of the United States can not, trine, see, D. Perkins. The Monroe Doctrine, therefore, view with indifference attempts of

gon and Texas. Note that Polk speaks of “this . oo ;

1826-1867, ch. ii, and notes. European powers to interfere with the inde-

pendent action of the nations on this conti-

_.. The rapid extension of our settle- nent. The American system of government ments over our territories heretofore unoccu- is entirely different from that of Europe. pied, the addition of new States to our Jealousy among the different sovereigns of Confederacy, the expansion of free principles, | Europe, lest any one of them might become

and our rising greatness as a nation are at- too powerful for the rest, has caused them tracting the attention of the powers of anxiously to desire the establishment of what Europe, and lately the doctrine has been they term the “balance of power.” It can broached in some of them of a “balance of not be permitted to have any application on power” on this continent to check our ad- the North American continent, and especially vancement. The United States, sincerely de- to the United States. We must ever maintain sirous of preserving relations of good under- the principle that the people of this continent

standing with all nations, can not in silence alone have the right to decide their own permit any European interference on the destiny. Should any portion of them, constiNorth American continent, and should any tuting an independent state, propose to unite such interference be attempted will be ready themselves with our Confederacy, this will

to resist it at any and all hazards. be a question for them and us to determine It is well known to the American people without any foreign interposition. We can and to all nations that this Government has never consent that European powers shall never interfered with the relations subsisting interfere to prevent such a union because it between other governments. We have never might disturb the “balance of power” which made ourselves parties to their wars or their they may desire to maintain upon this conalliances; we have not sought their territories tinent. Near a quarter of a century ago the

by conquest; we have not mingled with principle was distinctly announced to the parties in their domestic struggles; and be- world, in the annual message of one of my lieving our own form of government to be _ predecessors. that— the best, we have never attempted to propa- The American continents, by the free and

gate it by intrigues, by diplomacy, or by dependent condition which they have asforce. We may claim on this continent a like sumed and maintain, are henceforth not to be

310 DOCUMENTS OF AMERICAN HIsToRY considered as subjects for future coloniza- at this day but the promulgation of a policy

tion by any European powers. which no European power should cherish the This principle will apply with greatly in- disposition to resist, Existing rights of every creased force should any European power at- European nation should be respected, but it tempt to establish any new colony in North is due alike to our safety and our interests America. In the existing circumstances of that the efficient protection of our laws should the world the present is deemed a proper be extended over our whole territorial limits, occasion to reiterate and reaffirm the prin- and that it should be distinctly announced to ciple avowed by Mr. Monroe and to state my the world as our settled policy that no future cordial concurrence in its wisdom and sound European colony or dominion shall with our policy. The reassertion of this principle, es- consent be planted or established on any part pecially in reference to North America, is of the North American continent. . . .

168. POLK’S MESSAGE ON WAR WITH MEXICO May 11, 1846 (Richardson, ed. Messages and Papers, Vol. IV, p. 437 ff.) This notorious message, declaring that “Mex- Congress of the United States, to annex her-

ico. ..has shed American blood upon the gelf to our Union, and under these circumAmerican soil,” led to a declaration of war, May stances it was plainly our duty to extend our 13. Whether the territory between the Nueces protection over her citizens and soil.

and the Rio Grande, where this act of war took This force was place, was actually American Territory, is concentrated highly a at Corpus

controversial. In any event Polk and his Cabinet Christi, and remained there until after I had had determined upon war as early as May 9, so ‘eceived such information from Mexico as that the alleged provocation for the war was not rendered it probable, if not certain, that the the real one. Whether Polk deserved the appella- Mexican Government would refuse to receive tion of “the mendacious Polk” or not is a mat- our envoy. ter of opinion among historians. On the origins Meantime Texas, by the final action of our of the Mexican War, see, J. H. Smith, The War Congress, had become an integral part of our with Mexico, Vol. 1; J.S. Reeves, The Diplomacy Union. The Congress of Texas, by its act of of Tyler and Polk; BE. C. McCormac, James K. December 19, 1836, had declared the Rio del United States and Mexico, Vol. 1; N. W. Stephen- N orte to be the boundary of that Republic. son, Texas and the Mexican War; G. P. Garri- Its jurisdiction had been extended and exer-

Polk; L.M. Sears, John Slidell; G. L. Rives, The 4

son, Westward Extension, chs. xili-xv. cised beyond the Nueces. The country be-

tween that river and the Del Norte had been To the Senate and House of Representatives: represented in the Congress and in the conThe existing state of the relations between vention of Texas, had thus taken part in the the United States and Mexico renders it act of annexation itself, and is now included proper that I should bring the subject to the within one of our Congressional districts. Our

consideration of Congress... . own Congress had, moreover, with great

In my message at the commencement of unanimity, by the act approved December the present session I informed you that upon 31, 1845, recognized the country beyond the the earnest appeal both of the Congress and Nueces as a part of our territory by including convention of Texas I had ordered an effi- it within our own revenue system, and a reve-

cient military force to take a position “be- nue officer to reside within that district has tween the Nueces and the Del Norte.” This been appointed by and with the advice and had become necessary to meet a threatened consent of the Senate. It became, therefore, invasion of Texas by the Mexican forces, for of urgent necessity to provide for the defense which extensive military preparations had _ of that portion of our country. Accordingly, been made. The invasion was threatened on the 13th of January last instructions were solely because Texas had determined, in ac- issued to the general in command of these

cordance with a solemn resolution of the troops to occupy the left bank of the Del

THE OREGON TREATY 311 Norte. This river, which is the southwestern Rio del Norte, on its left bank, to ascertain boundary of the State of Texas, is an exposed whether the Mexican troops had crossed or

frontier. were preparing to cross the river, “became

The movement of the troops to the Del engaged with a large body of these troops, and Norte was made by the commanding general after a short affair, in which some 16 were under positive instructions to abstain from killed and wounded, appear to have been all aggressive acts toward Mexico or Mexican surrounded and compelled to-surrender.” . . .

citizens and to regard the relations between The cup of forbearance had been exhausted that Republic and the United States as peace- even before the recent information from the

ful unless she should declare war or commit frontier of the Del Norte. But now, after acts of hostility indicative of a state of reiterated menaces, Mexico has passed the

war. ... boundary of the United States, has invaded

The Mexican forces at Matamoras as-_ our territory and shed American blood upon sumed a belligerent attitude, and on the 12th the American soil. She has proclaimed that of April General Ampudia, then in command, hostilities have commenced, and that the two notified General Taylor to break up his camp nations are now at war. within twenty-four hours and to retire be- As war exists, and, notwithstanding all our yond the Nueces River, and in the event of _ efforts to avoid it, exists by the act of Mexico his failure to comply with these demands herself, we are called upon by every considannounced that arms, and arms alone, must’ eration of duty and patriotism to vindicate decide the question. But no open act of hos- with decision the honor, the rights, and the tility was committed until the 24th of April. interests of our country... .

On that day General Arista, who had suc- In further vindication of our rights and ceeded to the command of the Mexican’ defense of our territory, I invoke the prompt forces, communicated to General Taylor that action of Congress to recognize the existence “he considered hostilities commenced and of the war, and to place at the disposition of should prosecute them.” A party of dragoons the Executive the means of prosecuting the of 63 men and officers were on the same day’ _ war with vigor, and thus hastening the restor-

dispatched from the American camp up the ation of peace. ...

169. THE OREGON TREATY June 15, 1846 (Malloy, ed. Treaties, Conventions, etc., Vol. I, p. 656) The Oregon Treaty, establishing the Boundary Art. I. From the point on the forty-ninth between the United States and British America parallel of north latitude, where the boundary be ine boundery contrororsy in nau So annes laid down in existing treaties and conventions

highly favorable to the United States. By the between fe nite’ rane ane Great Britain

convention of 1818 the United States and Great muinates, the ‘ne Of Doundary between the Britain had joint occupancy of the territory be- territories of the United States and those of

tween the 42nd and the S4th parallels; this ar- er Britannic Majesty shall be continued rangement had been extended indefinitely in 1827, Westward along the said forty-ninth parallel

with provision for termination on one year’s of north latitude to the middle of the chan-

notice. A resolution of April 27, 1846 authorized nel which separates the continent from Vanthe President to give notice of the termination couver’s Island, and thence southerly through of the joint occupancy agreement at his discre- the middle of the said channel. and of Fuca’s tion. On the Oregon Treaty, see J. S. Reeves, Straits, to the Pacific Ocean: Provid d.}

American Diplomacy under Tyler and Polk; eee Cd, MOWJ. C. Bell, Opening a Highway to the Pacific, ever, That the navigation of the whole of the 1838-1846; F. Merk, “Oregon Pioneers and the S24 channel and straits, south of the fortyBoundary,” American Hist. Rev. Vol. XXIX, Minth parallel of north latitude, remain free p. 681 ff.; H. S. Commager, “England and the 4nd open to both parties. Oregon Treaty of 1846,” Oregon Historical Qt. ART. I]. From the point at which the forty-

Vol. XXVIII, ninth parallel of north latitude shall be found

312 DOCUMENTS OF AMERICAN History to intersect the great northern branch of the the territory south of the forty-ninth parallel

Columbia River, the navigation of the said of north latitude, as provided in the first branch shall be free and open to the Hudson’s article of this treaty, the possessory rights of Bay Company, and to all British subjects the Hudson’s Bay Company, and of all Brittrading with the same, to the point where the ish subjects who may be already in the occusaid branch meets the main stream of the Co- pation of land or other property lawfully aclumbia, and thence down the said main stream quired within the said territory, shall be

to the ocean, with free access into and respected.

through the said river or rivers, it being un- Art. IV. The farms, lands, and other propderstood that all the usual portages along erty of every description, belonging to the the line thus described shall, in like manner, Puget’s Sound Agricultural Company, on the be free and open. In navigating the said river north side of the Columbia River, shall be or rivers, British subjects, with their goods confirmed to the said company. In case, howand produce, shall be treated on the same ever, the situation of those farms and lands footing as citizens of the United States; it should be considered by the United States to being, however, always understood that noth- be of public and political importance, and the

ing in this article shall be construed as pre- United States government should signify a venting, or intended to prevent, the govern- desire to obtain possession of the whole, or ment of the United States from making any _ of any part thereof, the property so required regulations respecting the navigation of the shall be transferred to the said government, said river or rivers not inconsistent with the at a proper valuation, to be agreed upon be-

present treaty. tween the parties... . ArT. III. In the future appropriation of 170. INDEPENDENT TREASURY ACT

August 8, 1846 :

(U. S. Statutes at Large, Vol. IX, p. 69 ff.) Van Buren, upon his accession to the Presidency, mediate control of said treasurer, and such recommended the establishment of a sub-treasury other apartments as are provided for in this system as a substitute for the National Bank. A act as places of deposit of the public money, bill incorporating this suggestion was three times are hereby constituted and declared to be the defeated, but finally passed July 4, 1840, only to treasury of the United States. And all moneys

be repealed by the incoming Harrison adminis- an

tration, August 13, 1841. The victory of the paid into the same shall be subject to the Democrats in the election of 1844 insured the raft of the treasurer, drawn agreeably to repassage af the act. See, D. Kinley, The Inde- appropriations made by law... . pendent Treasury System; E. M. Shepard, Mar- Sec. 6. That the treasurer of the United tin Van Buren, J. P. Phillips, Methods of Keep- States, the treasurer of the mint of the United

ing the Public Money; A. S. Bolles, Financial States, the treasurers, and those acting as

History of the United States, Vol. Il. such, of the various branch mints, all col-

lectors of the customs, all surveyors of the An Act to provide for the better Organization customs acting also as collectors, all assistof the Treasury, and for the Collection, ant treasurers, all receivers of public moneys Safe-Keeping, Transfer, and Disbursement at the several land offices, all postmasters,

of the public Revenue. and all public officers of whatsoever character,

Be it enacted ..., That the rooms pre- be, and they are hereby, required to keep pared and provided in the new treasury build- safely, without loaning, using, depositing in ing at the seat of government for the use of banks, or exchanging for other funds than as the treasurer of the United States, his assist- allowed by this act, all the public money col-

ants, and clerks, and occupied by them, and lected by them, or otherwise at any time also the fireproof vaults and safes erected in placed in their possession and custody, till

said rooms for the keeping of the public the same is ordered, by the proper departmoneys in the possession and under the im- ment or officer of the government, to be

TREATY OF GUADALUPE HIDALGO 313 transferred or paid out; and when such orders Secretary of the Treasury, or the Postmaster-

for transfer or payment arc received, faith- General so to do, pay over to the treasurer fully and promptly to make the same as of the United States, at the treasury, all pubdirected, and to do and perform all other lic moneys collected by them, or in their

duties as fiscal agents of the government hands; .. . which may be imposed by this or any other Sec. 18. That on January 1, 1847, and acts of Congress, or by any regulation of the thereafter, all duties, taxes, sales of public treasury department made in conformity to lands, debts, and sums of money accruing or law; and also to do and perform all acts and becoming due to the United States, and also duties required by law, or by direction of all sums due for postages or otherwise, to the any of the Executive departments of the general post-office department, shall be paid government, as agents for paying pensions, or in gold and silver coin only, or in treasury for making any other disbursements which notes issued under the authority of the United either of the heads of these departments may States... . be required by law to make, and which are of Sec. 19. That on April 1, 1847, and therea character to be made by the depositaries after, every officer or agent engaged in makhereby constituted, consistently with the ing disbursements on account of the United other official duties imposed upon them. ... States, or of the general post-office, shall Sec. 9. That all collectors and receivers of | make all payments in gold and silver coin, public money, of every character and descrip- or in treasury notes, if the creditor agree to tion, within the District of Columbia, shall, receive said notes in payment... . as frequently as they may be directed by the

171. TREATY OF GUADALUPE HIDALGO Signed, February 2, 1848; Ratified May 30, 1848 (Malloy, ed. Treaties, Conventions, etc., Vol. I, p. 1107 ff.) This Treaty, ending the War with Mexico, was two Republics shall commence in the Gulf negotiated by N. P. Trist. He had been in- of Mexico, three leagues from land, opposite structed to demand the cession of New Mexico the mouth of the Rio Grande, otherwise and California, Lower California, and a right of called Rio Bravo del Norte, or opposite the ed across the Isthmus of Tehuantepec. Trist’s mouth of its deepest branch, if it should have annexation of even more Mexican territory, led ™0re than one branch emptying directly into to Trist’s recall; he disregarded his recall, how- the sea; from thence up the middle of that ever, and concluded the Treaty of Guadalupe iver, following the deepest channel, where it Hidalgo. Polk, after some hesitation, sent the has more than one, to the point where it treaty to the Senate for ratification, at the same strikes the southern boundary of New Mextime confiding to his Diary, “if the treaty was ico; thence, westwardly, along the whole now to be made, I should demand more ter- southern boundary of New Mexico (which ritory”. On the Treaty, see, J. S. Reeves, “Treaty rns north the town called Paso) to its of Guadalupe Hidalgo”, American Hist. Rev.ofaor Vol. V, p. 491 ff.; R. S. Ripley, The War with western termination ; thence, northward, Mexico, Vol. II; J. H. Smith, The War with ong the western line of New Mexico, until Mexico, Vol. II: and see, L. M. Sears, “Nicholas it Intersects the first branch of the River P. Trist, A Diplomat with Ideals,” Miss. Valley Gila; (or if it should not intersect any branch

undering, and a growing sentiment for the ; ; .

Hist. Rev. Vol. XI, p. 85 ff. of that river, then to the point on the said

line nearest to such branch, and thence in a

Art. I. Tuere shall be firm and univer- direct line to the same;) thence down the

sal peace between the United States of Amer- middle of the said branch and of the said ica and the Mexican Republic, and between river, until it empties into the Rio Colorado: their respective countries, territories, cities, thence across the Rio Colorado, following towns, and people, without exception of place the division line between Upper and Lower

or persons... . California, to the Pacific Ocean... .

Art. V. The boundary line between the Art. VII. The River Gila, and the part of

314 DOCUMENTS OF AMERICAN HISTORY the Rio Bravo del Norte lying below the not heretofore decided against the Mexican southern boundary of New Mexico, being, Government, which may have arisen preagreeably to the fifth article, divided in the viously to the date of the signature of this middle between the two republics, the navi- treaty; which discharge shall be final and gation of the Gila and of the Bravo below said _ perpetual, whether the said claims be rejected boundary shall be free and common to the _ or be allowed by the board of commissioners

vessels and citizens of both countries; and provided for in the following article, and neither shall, without the consent of the whatever shall be the total amount of those other, construct any work that may impede allowed... . or interrupt, in whole or in part, the exercise Art. XV. The United States, exonerating of this right; not even for the purpose of Mexico from all demands on account of the favoring new methods of navigation. .. . claims of their citizens mentioned in the preArt. VIII. Mexicans now established in ceding article, and considering them entirely territories previously belonging to Mexico, and forever cancelled, whatever their amount and which remain for the future within the may be, undertake to make satisfaction for limits of the United States, as defined by the the same, to an amount not exceeding three present treaty, shall be free to continue where and one quarter millions of dollars... . they now reside, or to remove at any time to Art. XXI. If unhappily any disagreement the Mexican republic, retaining the property should hereafter arise between the governwhich they possess in the said territories, or ments of the two republics, whether with redisposing thereof, and removing the proceeds _ spect to the interpretation of any stipulation wherever they please, without their being sub- in this treaty, or with respect to any other jected, on this account, to any contribution, particular concerning the political or com-

tax, or charge whatever... . mercial relations of the two nations, the said

Art. XII. In consideration of the exten- governments, in the name of those nations,

sion acquired by the boundaries of the United do promise to each other that they will en-

States, as defined in the fifth article of the deavor, in the most sincere and earnest present treaty, the Government of the United manner, to settle the differences so arising, States engages to pay to that of the Mexican and to preserve the state of peace and friendRepublic the sum of fifteen millions of dol- ship in which the two countries are now plac-

lars... . ing themselves; using, for this end, mutual Art. XIII. The United States engage, representations and pacific negotiations. And

moreover, to assume and pay to the claimants _if, by these means, they should not be enabled

all the amounts now due them, and those to come to an agreement, a resort shall not, hereafter to become due, by reason of the on this account, be had to reprisals, aggresclaims already liquidated and decided against _ sion, or hostility of any kind, by the one rethe Mexican Republic, under the conventions _ public against the other, until the Government between the two republics severally concluded of that which deems itself aggrieved shall

on the eleventh day of April, eighteen hun- have maturely considered, in the spirit of dred and thirty-nine, and on the thirtieth day peace and good neighborship, whether it

of January, eighteen hundred and forty- would not be better that such difference three; so that the Mexican Republic shall be should be settled by the arbitration of comabsolutely exempt, for the future, from all missioners appointed on each side, or by that expense whatever on account of the said of a friendly natian. And should such course

claims. be proposed by either party, it shall be acArt. XIV. The United States do further- ceded to by the other, unless deemed by it more discharge the Mexican Republic from altogether incompatible with the nature of all claims of citizens of the United States, the difference, or circumstances of the case.

WoMAN’sS RIGHTS 315 172. WOMAN’S RIGHTS The Seneca Falls Declaration of Sentiments and Resolutions July 19, 1848 (The History of Woman Suffrage, ed. by E. C. Stanton, S. B. Anthony and M. J. Gage, Vol. I, p. 70 ff.) Though Frances Wright, Ernestine Rose, and safety and happiness. Prudence, indeed, will others had championed the cause of woman’s dictate that governments long established rights early in the century, the immediate origin should not be changed for light and transient of the woman’s rights movement of the mid- cayses- and accordingly all experience hath century was in the anti-slavery crusade. When at town that mankind are more disposed to ine eons moun at Avnerion amen jecate suffer while evils are sufferable, than to right found themselves excluded, they determined that themselves by abolishing the forms to which the cause of emancipation affected them as well they are accustorned. But when a long train as slaves. The Seneca Falls Convention was the of abuses and usurpations, pursuing invariafirst of its kind ever held. On the early woman’s bly the same object, evinces a design to rerights movement, see The History of Woman Suf- duce them under absolute despotism, it is frage, Vol. I; E. A. Hecker, Short History of their duty to throw off such government, and

atus O omen in the Unite ates; 1. otan- . :

wens Rishis) B. * Romane ue of oneal to provide new guards for their future securton nd HL S. Baltch, Elizabeth Cady Stanton; ity. Such has aon the patient suiferance ° A. D. Hallowell, Life and Letters of James anq ‘he women under this government, and suc Lucretia Mott; K. Anthony, Margaret Fuller, 38 DOW the necessity which constrains them to Some interesting comments on the philosophical demand the equal station to which they are implications of the movement are in T. V. Smith, entitled.

The American Philosophy of Equality. The history of mankind is a history of repeated injuries and usurpations on the part 1, DECLARATION OF SENTIMENTS of man toward woman, having in direct obWhen, in the course of human events, it ject the establishment of an absolute tyranny becomes necessary for one portion of the over her. To prove this, let facts be submitted family of man to assume among the people to a candid world.

of the earth a position different from that He has never permitted her to exercise her which they have hitherto occupied, but one inalienable right to the elective franchise. to which the laws of nature and of nature’s He has compelled her to submit to laws, God entitle them, a decent respect: to the in the formation of which she had no voice. opinions of mankind requires that they should He has withheld from her rights which are declare the causes that impel them to such a_ given to the most ignorant and degraded

course. men—both natives and foreigners.

We hold these truths to be self-evident: Having deprived her of this first right of a that all men and women are created equal; citizen, the elective franchise, thereby leaving that they are endowed by their Creator with her without representation in the halls of certain inalienable rights; that among these legislation, he has oppressed her on all sides. are life, liberty, and the pursuit of happiness; He has made her, if married, in the eye that to secure these rights governments are of the law, civilly dead. instituted, deriving their just powers from the He has taken from her all right in property, consent of the governed. Whenever any form _ even to the wages she earns.

of government becomes destructive of these He has made her, morally, an irresponsible ends, it is the right of those who suffer from __ being, as she can commit many crimes with it to refuse allegiance to it, and to insist impunity, provided they be done in the pres-

upon the institution of a new government, ence of her husband. In the covenant of

laying its foundation on such principles, and marriage, she is compelled to promise obedi-

organizing its powers in such form, as to ence to her husband, he becoming, to all them shall seem most likely to effect their intents and purposes, her master—the law

316 DOCUMENTS OF AMERICAN History giving him power to deprive her of her lib- rights and privileges which belong to them as

erty, and to administer chastisement. citizens of the United States.

He has so framed the laws of divorce, as In entering upon the great work before us, to what shall be the proper causes, and in we anticipate no small amount of misconcepcase of separation, to whom the guardianship _ tion, misrepresentation, and ridicule; but we of the children shall be given, as to be wholly _ shall use every instrumentality within our regardless of the happiness of women—the power to effect our object. We shall employ law, in all cases, going upon a false supposi- agents, circulate tracts, petition the State and tion of the supremacy of man, and giving all National legislatures, and endeavor to enlist

power into his hands. the pulpit and the press in our behalf. We After depriving her of all rights as a mar- hope this Convention will be followed by a ried woman, if single, and the owner of prop- series of Conventions embracing every part

erty, he has taxed her to support a govern- of the country. ment which recognizes her only when her

property can be made profitable to it. 2. RESOLUTIONS He has monopolized nearly all the profita- WuereAs, The great precept of nature is ble employments, and from those she is conceded to be, that “man shall pursue his permitted to follow, she receives but a own true and substantial happiness.” Blackscanty remuneration. He closes against her all stone in his Commentaries remarks, that this

the avenues to wealth and distinction which law of Nature being coeval with mankind, he considers most honorable to himself. As a and dictated by God himself , 1S of course suteacher of theology, medicine, or law, she is _ perior in obligation to any other. It is binding

not known. over all the globe, in all countries and at all He has denied her the facilities for obtain- times; no human laws are of any validity if ing a thorough education, all colleges being contrary to this, and such of them as are

closed against her. valid, derive all their force, and all their va-

He allows her in Church, as well as State, lidity, and all their authority, mediately and but a subordinate position, claiming Apostolic immediately, from this original: therefore,

authority for her exclusion from the ministry, Resolved, That all laws which prevent and, with some exceptions, from any public woman from occupying such a station in participation in the affairs of the Church. society as her conscience shall dictate, or He has created a false public sentiment by which place her in a position inferior to that giving to the world a different code of morals of man, are contrary to the great precept of for men and women, by which moral delin- nature, and therefore of no force or authority. quencies which exclude women from society, Resolved, That woman is man’s equal— are not only tolerated, but deemed of little was intended to be so by the Creator, and the

account in man. highest good of the race demands that she He has usurped the prerogative of Jehovah should be recognized as such. himself, claiming it as his right to assign for Resolved, That the women of this country her a sphere of action, when that belongs to ought to be enlightened in regard to the laws

her conscience and to her God. under which they live, that they may no

He has endeavored, in every way that he longer publish their degradation by declaring could, to destroy her confidence in her own themselves satisfied with their present posipowers, to lessen her self-respect and to make __ tion, nor their ignorance, by asserting that her willing to lead a dependent and abject they have all the rights they want.

life. Resolved, That inasmuch as man, while

Now, in view of this entire disfranchise- claiming for himself intellectual superiority, ment of one-half the people of this country, does accord to woman moral superiority, it is

their social and religious degradation—in pre-eminently his duty to encourage her to view of the unjust laws above mentioned, speak and teach, as she has an opportunity, and because women do feel themselves ag- in all religious assemblies. grieved, oppressed, and fraudulently deprived Resolved, That the same amount of virtue, of their most sacred rights, we insist that delicacy, and refinement of behavior that is they have immediate admission to all the required of woman in the social state, should

HoracE MANN ON EDUCATION AND WELFARE 317 also be required of man, and the same trans- cause depends upon the zealous and untiring gressions should be visited with equal sever- efforts of both men and women, for the over-

ity on both man and woman. throw of the monopoly of the pulpit, and for Resolved, That the objection of indelicacy the securing to women an equal participation and impropriety, which is so often brought with men in the various trades, professions, against woman when she addresses a public and commerce. audience, comes with a very ill-grace from Resolved, therefore, That, being invested

those who encourage, by their attendance, her _ by the creator with the same capabilities, and

appearance on the stage, in the concert, or the same consciousness of responsibility for

in feats of the circus. their exercise, it is demonstrably the right Resolved, That woman has too long rested and duty of woman, equally with man, to

satished in the circumscribed limits which promote every righteous cause by every corrupt customs and a perverted application righteous means; and especially in regard to of the Scriptures have marked out for her, the great subjects of morals and religion, it and that it is time she should move in the _ is self-evidently her right to participate with enlarged sphere which her great Creator has her brother in teaching them, both in private

assigned her. and in public, by writing and by speaking, by Resolved, That it is the duty of the women any instrumentalities proper to be used, and of this country to secure to themselves their in any assemblies proper to be held; and this

sacred right to the elective franchise. being a self-evident truth growing out of the Resolved, That the equality of human divinely implanted principles of human narights results necessarily from the fact of the ture, any custom or authority adverse to it, identity of the race in capabilities and re- whether modern or wearing the hoary sanc-

sponsibilities. tion of antiquity, is to be regarded as a selfResolved, That the speedy success of our evident falsehood, and at war with mankind.

173. HORACE MANN ON EDUCATION AND NATIONAL WELFARE 1848

(Twelfth Annual Report of Horace Mann as Secretary of Massachusetis State Board of Education) Horace Mann’s appointment as Secretary of the from the hand of charity or extorted by poornewly organized Board of Education, in 1837, laws. It is not averred that this most desirable inaugurated a new era in the history of American result can, in all instances, be obtained; but enucation. In his annual reports Mann discussed it is, nevertheless, the end to be aimed at.

1e larger implications of education in a de- T tat hj q lit;

mocracy. These reports can be found in The rue statesmansiip an true political econLife and Work of Horace Mann, Vols. U-V. ™Y not less than true philanthropy, present On Mann, see biography by Mrs. Mary Mann, in this perfect theory as the goal, to be more Vol. I of the Life and Work; B. A. Hinsdale, and more closely approximated by our imHorace Mann and the Common School Revival perfect practice. The desire to achieve such in the United States; A. E. Winship, Horace a result cannot be regarded as an unreason-

Mann, the Educator. able ambition; for, though all mankind were

well fed, well clothed, and well housed, they

.... Acardinal object which the govern- might still be half civilized. ment of Massachusetts, and all the influential According to the European theory, men are men in the State, should propose to them- divided into classes——some to toil and earn, selves, is the physical well-being of all the others to seize and enjoy. According to the people,—the sufficiency, comfort, compe- Massachusetts theory, all are to have an equal tence, of every individual in regard to food, chance for earning, and equal security in the raiment, and shelter. And these necessaries enjoyment of what they earn. The latter and conveniences of life should be obtained tends to equality of condition; the former, by each individual for himself, or by each to the grossest inequalities. Tried by any family for themselves, rather than accepted Christian standard of morals, or even by any

318 DOCUMENTS OF AMERICAN HIsToRY of the better sort of heathen standards, can name the relation between them may be any one hesitate, for a moment, in declaring called: the latter, in fact and in truth, will which of the two will produce the greater be the servile dependents and subjects of the amount of human welfare, and which, there- former. But, if education be equally diffused, fore, is the more conformable to the divine _ it will draw property after it by the strongest — will? The European theory is blind to what of all attractions; for such a thing never did

constitutes the highest glory as well as the happen, and never can happen, as that an

highest duty of a State... . intelligent and practical body of men should Our ambition as a State should trace itself be permanently poor. Property and labor in to a different origin, and propose to itself a different classes are essentially antagonistic: different object. Its flame should be lighted but property and labor in the same class are at the skies. Its radiance and its warmth _ essentially fraternal. The people of Massashould reach the darkest and the coldest of chusetts have, in some degree, appreciated abodes of men. It should seek the solution of _ the truth that the unexampled prosperity of such problems as these: To what extent can the State—its comfort, its competence, its competence displace pauperism? How nearly general intelligence and virtue—is attributacan we free ourselves from the low-minded ble to the education, more or less perfect, and the vicious, not by their expatriation, but which all its people have received; but are by their elevation? To what extent can the they sensible of a fact equally important,— resources and powers of Nature be converted namely, that it is to this same education that into human welfare, the peaceful arts of life two-thirds of the people are indebted for not be advanced, and the vast treasures of hu- being to-day the vassals of as severe a tyr-

man talent and genius be developed? How nny, in the form of capital, as the lower much of suffering, in all its forms, can be classes of Europe are bound to in any form of relieved? or, what is better than relief, how brute force? much can be prevented? Cannot the classes Education then, beyond all other devices of of crimes be lessened, and the number of human origin, is a great equalizer of the concriminals in each class be diminished? .. . ditions of men,—the balance wheel of the Now two or three things will doubtless be social machinery. I do not here mean that admitted to be true, beyond all controversy, it so elevates the moral nature as to make in regard to Massachusetts. By its industrial men disdain and abhor the oppression of condition, and its business operations, it is their fellow men. This idea pertains to an-

exposed, far beyond any other State in the other of its attributes. But I mean that it Union, to the fatal extremes of overgrown gives each man the independence and the

wealth and desperate poverty. Its population means by which he can resist the selfishness

is far more dense than that of any other of other men. It does better than to disarm State. It is four or five times more dense than _ the poor of their hostility toward the rich: it

the average of all the other States taken to- prevents being poor. Agrarianism is the regether; and density of population has always venge of poverty against wealth. The wanton been one of the proximate causes of social destruction of the property of others—the inequality. According to population and ter- burning of hay-ricks, and corn-ricks, the deritorial extent there is far more capital in molition of machinery because it. supersedes Massachusetts—capital which is movable, hand-labor, the sprinkling of vitriol on rich and instantaneously available—than in any dresses—is only agrarianism run mad. Eduother State in the Union; and probably both cation prevents both the revenge and the these qualifications respecting population and madness. On the other hand, a fellow-feeling

territory could be omitted without endanger- for one’s class or caste is the common in-

ing the truth of the assertion. .. . stinct of hearts not wholly sunk in selfish

Now surely nothing but universal educa- regard for a person or for a family. The tion can counterwork this tendency to the spread of education, by enlarging the cultidomination of capital and the servility of vated class or caste, will open a wider area labor. If one class possesses all the wealth over which the social feelings will expand; and the education, while the residue of society and, if this education should be universal and

is ignorant and poor, it matters not by what complete, it would do more than all things

THE CoMPROMISE OF 1850 319 else to obliterate factitious distinctions in cal economy, therefore, which busies itself

society. ... about capital and labor, supply and demand,

For the creation of wealth, then,—for the interests and rents, favorable and unfavorexistence of a wealthy people and a wealthy able balances of trade, but leaves out of acnation,—intelligence is the grand condition. count the elements of a wide-spread mental The number of improvers will increase as development, is naught but stupendous folly. the intellectual constituency, if I may so The greatest of all the arts in political econcall it, increases. In former times, and in omy is to change a consumer into a producer; most parts of the world even at the present and the next greatest is to increase the proday, not one man in a million has ever had ducing power,—and this to be directly obsuch a development of mind as made it pos- tained by increasing his intelligence. For mere sible for him to become a contributor to art delving, an ignorant man is but little better or science. ... Let this development pro- than a swine, whom he so much resembles in

ceed, and contributions ... of inestima- his appetites, and surpasses in his power of ble value, will be sure to follow. That politi- mischief... . 174. THE COMPROMISE OF 1850 The new territorial accessions that resulted from promise of 1850 see J. F. Rhodes, History of the War with Mexico precipitated the slavery the United States Since the Compromise of 1850, question into politics in an inescapable manner. Vol. I; H. Von Holst, Constitutional History of As early as August, 1846, David Wilmot of the United States, Vol. III; J. Shouler, History of Pennsylvania had introduced into the House a the United States, Vol. V; E. Channing, History resolution “That as an express and fundamental of the United States, Vol. VI, chs. ili-iv; C. condition to the acquisition of any territory Schurz, Henry Clay, Vol. II; C. Fuess, Daniel from the republic of Mexico by the United Webster, Vol. I1; H. Von Holst, Calhoun; W. E. States, by virtue of any treaty which may be Dodd, Jefferson Davis; A. Johnson, Stephen A. negotiated between them ... neither slavery nor Douglas; A. B. Hart, Samuel P. Chase. The iminvoluntary servitude shall ever exist in any portant debates can be found in T. H. Benton’s part of said territory.” This resolution was never Abridgement of the Debates in Congress, Vol. passed by Congress, but the principle it expressed XVI. The speeches of Calhoun, Webster and was aggressively maintained by the anti-slavery Clay are reprinted in A. Johnston and J. A. element. In 1848 Oregon was organized as a Woodburn, American Orations, Vol. Il. Many

Territory and the principle of the Northwest interesting letters are preserved in J. S. Pike, Ordinance applied, but efforts to organize Cali- First Blows of the Civil War.

fornia and New Mexico failed. In 1849 the peo- 1. CLay’s RESOLUTIONS

ple of California took matters into their own

hands by adopting a constitution which pro- January 29, 1850 hibited slavery. With the entire country seeth- (U.S. Senate Journal, 31st Congress, 1st Session,

ing with excitement and threats of secession p. 118 ff.)

coming from everywhere in the South, the stage It being desirable, for the peace, concord, was set for the greatest debate in Congressional and harmony of the Union of these States, history. Clay, Webster, Calhoun, Davis, Seward, tg settle and adjust amicably all existing Chase and others participated in the discussion. . ¢ t bet th . January 29 Clay introduced his compromise questions of controversy between them arlsresolutions. The resolutions were submitted toa 48 out of the instiiution of slavery upon a committee of which Clay was chairman and re- fair, equitable and just basis: therefore, ported as two bills: an Omnibus Bill covering the 1. Resolved, That California, with suitable organization of the Territories, and a bill to boundaries, ought, upon her application to be prohibit the slave trade in the District of Colum- admitted as one of the States of this Union, bia. In the course of the debates on these bills without the imposition by Congress of any Calhoun, too feeble to speak, presented his last restriction in respect to the exclusion or in-

denunciation of Northern aggressions, Webster troducti £ slaver ‘thin th boundmade his famous Seventh of March speech, and . ucHiOn Of slavery WIthin ose boun

Clay his last effort to save the Union. The aries.

Omnibus Bill was finally passed in separate acts. 2. Resolved, That as slavery does not exist The Bill to admit California as a State was by law, and is not likely to be introduced into passed and approved September 9. On the Com- any of the territory acquired by the United

320 DOCUMENTS OF AMERICAN HIsToORY States from the republic of Mexico, it is in- requirement of the constitution, for the restiexpedient for Congress to provide by law tution and delivery of persons bound to servelther for its introduction into, or exclusion ice or labor in any State, who may escape from, any part of the said territory; and that into any other State or Territory in the appropriate territorial governments ought to Union. And, be established by Congress in all of the said 8. Resolved, That Congress has no power territory, not assigned as the boundaries of to promote or obstruct the trade in slaves bethe proposed State of California, without the tween the slaveholding States; but that the adoption of any restriction or condition on admission or exclusion of slaves brought from

the subject of slavery. one into another of them, depends exclusively

3. Resolved, That the western boundary of upon their own particular laws. the State of Texas ought to be fixed on the Rio del Norte, commencing one marine league 2, Tue Texas anp New Mexico Act

from its mouth, and running up that river September 9, 1850

to the southern line of New Mexico; thence (U.S. Statutes at Large, Vol. IX, p. 446 ff.)

with that line eastwardly, and so continuing An Act proposing to the State of Texas in the same direction to the line as established the Establishment of her Northern and Westbetween the United States and Spain, exclud- ern Boundaries, the Relinguishment by the ing any portion of New Mexico, whether said State of all Territory claimed by her ex-

lying on the east or west of that river. terior to said Boundaries, and of all her claims 4. Resolved, That it be proposed to the upon the United States, and to establish a State of Texas, that the United States will territorial Government for New Mexico. provide for the payment of all that portion of Be it enacted, That the following proposithe legitimate and bona fide public debt of tions shall be, and the same hereby are, ofthat State contracted prior to its annexation fered to the State of Texas, which, when to the United States, and for which the duties agreed to by the said State, and in an act on foreign imports were pledged by the said passed by the general assembly, shall be State to its creditors, not exceeding the sum binding and obligatory, upon the United of —— dollars, in consideration of the said States, and upon the said State of Texas: duties so pledged having been no longer ap- Provided, The said agreement by the said plicable to that object after the said annexa- general assembly shall be given on or before tion, but having thenceforward become pay- the first day of December, eighteen hundred

able to the United States; and upon the and fifty:

condition, also, that the said State of Texas First. The State of Texas will agree that shall, by some solemn and authentic act of her boundary on the north shall commence her legislature or of a convention, relinquish at the point at which the meridian of one to the United States any claim which it has hundred degrees west from Greenwich is in-

to any part of New Mexico. tersected by the parallel of thirty-six degrees 5. Resolved, That it is inexpedient to abol- thirty minutes north latitude, and shall run ish slavery in the District of Columbia whilst from said point due west to the meridian of that institution continues to exist inthe State one hundred and three degrees west from

of Maryland, without the consent of that Greenwich; thence her boundary shall run State, without the consent of the people of due south to the thirty-second degree of the District, and without just compensation north latitude; thence on the said parallel of to the owners of slaves within the District. thirty-two degrees of north latitude to the

6. But, resolucd, That it is expedient to Rio Bravo del Norte, and thence with the prohibit, within the District, the slave trade channel of said river to the Gulf of Mexico. in slaves brought into it from States or places SECOND. The State of Texas cedes to the beyond the limits of the District, either to be United States all her claim to territory exsold therein as merchandise, or to be trans- terior to the limits and boundaries which she ported to other markets without the District agrees to establish by the first article of this

of7. Resolved, Columbia. agreement. That more effectual provision Tuirp. The State of Texas relinquishes all

ought to be made by law, according to the claim upon the United States for liability of

THE COMPROMISE OF 1850 321 the debts of Texas, and for compensation of their admission: Provided, That nothing or indemnity for the surrender to the United in this act contained shall be construed to States of her ships, forts, arsenals, custom- inhibit the government of the United States houses, custom-house revenue, arms and mu-_ from dividing said Territory into two or nitions of war, and public buildings with their more Territories, in such manner and at such

sites, which became the property of the times as Congress shall deem convenient and United States at the time of the annexation. proper, or from attaching any portion of said FourtH. The United States, in considera- Territory to any other State or Territory tion of said establishment of boundaries, ces- of the United States... .

sion of claim to territory, and relinquishment 4. Fucrtive SLAVE Act of will payoftodollars the State Texas S ber 18,18, 1850) sumclaims, of ten millions in a of stock bear-the (September ing five per cent, interest, and redeemable at (U- 5. Statutes at Large, Vol. IX, p. 462 ff.) the end of fourteen years, the interest pay- 4” Act to amend, and supplementary to, the able half-yearly at the treasury of the United Act entitled “An Act respecting Fugitives

States. ... from Justice, and Persons escaping from the Sec. 2. And that all that portion of the Service of their Masters,” approved—|FebTerritory of the United States bounded as ruary 12, 1793]. follows (boundaries) . . . is hereby erected _.. Sec. 5. That it shall be the duty of

into a temporary government, by the name _ all marshals and deputy marshals to obey and

of the Territory of New Mexico: Provided, execute all warrants and precepts issued That nothing in this act contained shall be under the provisions of this act, when to construed to inhibit the government of the them directed; and should any marshal or United States from dividing said Territory deputy marshal refuse to receive such warinto two or more Territories, in such manner rant, or other process, when tendered, or to

and at such times as Congress shall deem use all proper means diligently to execute convenient and proper, or from attaching any the same, he shall, on conviction thereof, portion thereof to any other Territory or be fined in the sum of one thousand dollars, State: And provided, further, That, when to the use of such claimant, ... and after admitted as a State, the said Territory, or arrest of such fugitive, by such marshal or any portion of the same, shall be received his deputy, or whilst at any time in his into the Union, with or without slavery, as custody under the provisions of this act, their constitution may prescribe at the time should such fugitive escape, whether with or

of their admission. without the assent of such marshal or his deputy, such marshal shall be liable, on his

3. THe Utan Act official bond, to be prosecuted for the benefit (September 9, 1850) of such claimant, for the full value of the (U. S. Statutes at Large, Vol. IX, p. 453 ff.) service or labor of said fugitive in the State,

An Act to establish a Territorial Govern- Territory, or District whence he escaped:

ment for Utah and the better to enable the said commis-

Be it enacted, That all that part of the sioners, when thus appointed, to execute their territory of the United States included within duties faithfully and efficiently, in conformity the following limits, to wit: bounded on the with the requirements of the Constitution of

west by the State of California, on the north the United States and of this act, they are by the Territory of Oregon, and on the hereby authorized and empowered, within east by the summit of the Rocky Mountains, their counties respectively, to appoint, .. . and on the south by the thirty-seventh paral- any one or more suitable persons, from time lel of north latitude, be, and the same is’ to time, to execute all such warrants and hereby, created into a temporary government, other process as may be issued by them in by the name of the Territory of Utah; and, the lawful performance of their respective when admitted as a State, the said Territory, duties; with authority to such commissioners, or any portion of the same, shall be received or the persons to be appointed by them, to into the Union, with or without slavery, as execute process as aforesaid, to summon and

their constitution may prescribe at the time call to their aid the bystanders, or posse

322 DOCUMENTS OF AMERICAN HisTorRy comitatus of the proper county, when neces- have escaped as aforesaid. In no trial or hear-

sary to ensure a faithful observance of the ing under this act shall the testimony of clause of the Constitution referred to, in such alleged fugitive be admitted in evidence; conformity with the provisions of this act; and the certificates in this and the first and all good citizens are hereby commanded [fourth] section mentioned, shall be conto aid and assist in the prompt and efficient clusive of the right of the person or persons execution of this law, whenever their services in whose favor granted, to remove such fugimay be required, as aforesaid, for that pur- tive to the State or Territory from which he pose; and said warrants shall run, and be — escaped, and shall prevent all molestation of executed by said officers, any where in the such person or persons by any process issued

State within which they are issued. by any court, judge, magistrate, or other perSec. 6. That when a person held to service son whomsoever.

or labor in any State or Territory of the SEC. 7. That any persons who shall knowUnited States, has heretofore or shall here- ingly and willingly obstruct, hinder, or preafter escape into another State or Territory vent such claimant, his agent or attorney, of the United States, the person or persons or any person or persons lawfully assisting to whom such service or labor may be due, him, her, or them, from arresting such a - . . May pursue and reclaim such fugitive fugitive from service or labor, either with or person, either by procuring a warrant from without process as aforesaid, or shall rescue,

some one of the courts, judges, or commis- or attempt to rescue, such fugitive from sioners aforesaid, of the proper circuit, dis- service or labor, from the custody of such trict, or county, for the apprehension of such claimant, ... or other person or persons fugitive from service or labor, or by seizing lawfully assisting as aforesaid, when so arand arresting such fugitive, where the same rested, . . . or shall aid, abet, or assist such can be done without process, and by taking, person so owing service or labor as aforeor causing such person to be taken, forth- said, directly or indirectly, to escape from with before such court, judge, or commis- such claimant, ... or shall harbor or consioner, whose duty it shall be to hear and ceal such fugitive, so as to prevent the disdetermine the case of such claimant in a covery and arrest of such person, after notice summary manner; and upon satisfactory or knowledge of the fact that such person proof being made, by deposition or affidavit, was a fugitive from service or labor... in writing, to be taken and certified by such _ shall, for either of said offences, be subject court, judge, or commissioner, or by other to a fine not exceeding one thousand dollars, satisfactory testimony, duly taken and certi- and imprisonment not exceeding six months fied by some court, . . . and with proof, also... ; and shall moreover forfeit and pay, by affidavit, of the identity of the person by way of civil damages to the party injured whose service or labor is claimed to be due _ by such illegal conduct, the sum of one thou-

as aforesaid, that the person so arrested does sand dollars, for each fugitive so lost as in fact owe service or labor to the person or aforesaid... . persons claiming him or her, in the State or Sec. 9. That, upon affidavit made by the Territory from which such fugitive may have claimant of such fugitive, ... that he has escaped as aforesaid, and that said person reason to apprehend that such fugitive will escaped, to make out and deliver to such be rescued by force from his or their posclaimant, his or her agent or attorney, a session before he can be taken beyond the certificate setting forth the substantial facts limits of the State in which the arrest is as to the service or labor due from such made, it shall be the duty of the officer makfugitive to the claimant, and of his or her ing the arrest to retain such fugitive in his escape from the State or Territory in which custody, and to remove him to the State he or she was arrested, with authority to whence he fled, and there to deliver him to such claimant, . .. to use such reasonable said claimant, his agent, or attorney. And force and restraint as may be necessary, to this end, the officer aforesaid is hereby under the circumstances of the case, to take authorized and required to employ so many and remove such fugitive person back to the persons as he may deem necessary to overState or Territory whence he or she may come such force, and to retain them in his

THE GEORGIA PLATFORM 323

quire... . he escaped...

service so long as circumstances may re- person to the State or Territory from which

Sec. 10. That when any person held to

service or labor in any State or Territory, or in the District of Columbia, shall escape 5. Act ABOLISHING THE SLAVE TRADE therefrom, the party to whom such service IN THE DISTRICT OF COLUMBIA

or labor shall be due, ... may apply to September 20, 1850

any court of record therein, . . . and make (U.S. Statutes at Large, Vol. IX, p. 467 ff.) satisfactory proof to such court, . . . of the An Act to suppress the Slave Trade in the escape aforesaid, and that the person escap- District of Columbia.

ing owed service or labor to such party. Be it enacted ... , That from and after

Whereupon the court shall cause a record January 1, 1851, it shall not be lawful to to be made of the matters so proved, and _ bring into the District of Columbia any slave also a generat description of the person so whatever, for the purpose of being sold, or escaping, with such convenient certainty as for the purpose of being placed in depot, to

may be; and a transcript of such record,... be subsequently transferred to any other being produced in any other State, Territory, State or place to be sold as merchandize. And

or district in which the person so escaping if any slave shall be brought into the said may be found, . .. shall be held and taken District by its owner, or by the authority or to be full and conclusive evidence of the consent of its owner, contrary to the profact of escape, and that the service or labor visions of this act, such slave shall thereupon of the person escaping is due to the party become liberated and free. in such record mentioned. And upon the Sec. 2. That it shall and may be lawful for

production by the said party of other and each of the corporations of the cities of further evidence if necessary, either oral or Washington and Georgetown, from time to by affidavit, in addition to what is contained time, and as often as may be necessary, to in the said record of the identity of the abate, break up, and abolish any depot or place person escaping, he or she shall be delivered of confinement of slaves brought into the said up to the claimant. And the said court, com- District as merchandize, contrary to the promissioner, judge, or other person authorized visions of this act, by such appropriate means by this act to grant certificates to claimants as may appear to either of the said corporaof fugitives, shall, upon the production of tions expedient and proper. And the same the record and other evidences aforesaid, power is hereby vested in the Levy Court of grant to such claimant a certificate of his Washington county, if any attempt shall be right to take any such person identified and made, within its jurisdictional limits, to esproved to be owing service or labor as afore- tablish a depot or place of confinement for said, which certificate shall authorize such slaves brought into the said District as merclaimant to seize or arrest and transport such chandize for sale contrary to this act.

175. THE GEORGIA PLATFORM 1850

(A. H. Stephens, The War Between the States, Vol. II, app. B.) Resolutions of a Convention held at Milledge- may be clearly apprehended by her Conville, Georgia, to consider the Compromise of federates of the South and of the North, and 1850. This platform was written by Charles J. that she may be blameless of all future conJenkins, and represented the point of view of the sequences—

Union element in Georgia. See, R. H. Shryock, ; , Georgia and the Union in 1850; U. B. Phillips, Be it resolved by the people of Georgia “Georgia and State Rights,” Am. Hist. Assoc. 7 Convention assembled, First. That we hold Reports, 1901, Vol. II; and references to Doc. the American Union secondary in importance

No. 176. only to the rights and principles it was designed to perpetuate. That past associaTo the end that the position of this State tions, present fruition, and future prospects,

324 DOCUMENTS OF AMERICAN History will bind us to it so long as it continues to of Columbia; and, whilst she does not wholly

be the safe-guard of those rights and prin- approve, will abide by it as a permanent

ciples. adjustment of this sectional controversy.

Second. That if the thirteen original Fourth. That the State of Georgia, in the

Parties to the Compact, bordering the At- judgment of this Convention, will and ought lantic in a narrow belt, while their separate to resist, even (as a last resort) to a disrupinterests were in embryo, their peculiar tend- tion of every tie which binds her to the encies scarcely developed, their revolutionary Union, any future Act of Congress abolishing

trials and triumphs still green in memory, Slavery in the District of Columbia, withfound Union impossible without compromise, out the consent and petition of the slavethe thirty-one of this day may well yield holders thereof, or any Act abolishing Slavery

somewhat in the conflict of opinion and in places within the slave-holding States, policy, to preserve that Union which has purchased by the United States for the extended the sway of Republican Govern- erection of forts, magazines, arsenals, dockment over a vast wilderness to another ocean, yards, navy-yards, and other like purposes; and proportionately advanced their civiliza- or in any Act suppressing the slave-trade

tion and national greatness. between slave-holding States; or in any re-

Third. That in this spirit the State of fusal to admit as a State any Territory

Georgia has maturely considered the action applying because of the existence of Slavery of Congress, embracing a series of measures therein; or in any Act prohibiting the in-

for the admission of California into the troduction of slaves into the Territories of

Union, the organization of Territorial Gov- Utah and New Mexico; or in any Act repealernments for Utah and New Mexico, the ing or materially modifying the laws now in establishment of a boundary between the force for the recovery of fugitive slaves. latter and the State of Texas, the suppression Fifth. That it is the deliberate opinion of of the slave-trade in the District of Columbia, this Convention, that upon the faithful ex-

and the extradition of fugitive slaves, and ecution of the Fugitive Slave Bill by the (connected with them) the rejection of prop- proper authorities, depends the preservation ositions to exclude slavery from the Mexican of our much loved Union. Territories, and to abolish it in the District

176. RESOLUTIONS OF THE NASHVILLE CONVENTION June 10, 1850 (Resolutions, Addresses, and Journal of Proceedings of the Southern Convention, p. 57 ff.) The Nashville Convention was called by the Alabama Hist. Soc. Transactions, Vol. V; A. C. more radical of the Southern leaders to consider Cole, “The South and the Right of Secession in what action should be taken on the Compromise _ the Early Fifties,” Miss. Valley Hist. Rev., Vol. I; of 1850. Nine slave States were represented, but R. P. Brooks, “Howell Cobb and the Crisis of the moderates were from the beginning in con- 1850”, Miss. Valley Hist. Review, Vol. IV.

onvention, and from the point of i

trol of the original sponsors it was a fiasco. A 1. Resolved, That the territories of the second convention, attended by only a handful United States belong to the people of the

of delegates, met in November and drew up _ several States of this Union as their common resolutions denouncing the Compromise and re- property. That the citizens of the several asserting the right of secession. See, J. W. Du- States have equal rights to migrate with their

Bose, Life and Times of Wiliam Lowndes property to these territories, and are equally Yancey; L. A. White, Robert Barnwell Rhett; entitled to the protection of the federal J. Hodgson, The Cradle of the Confederacy, or government in the enjoyment of that propthe Times of Troup, Quitman, and Yancey; erty so long as the territories remain under P.M. Hamer, The Secession Movement in South Carolina, 1847-1852; M. J. White, Secession the charge of that government. Movement in the United States, 1847-1852; D. T. 2. Resolved, That Congress has no power Herndon, “The Nashville Convention of 1850”, to exclude from the territory of the United

RESOLUTIONS OF THE NASHVILLE CONVENTION 325 States any property lawfully held in the cated and disciplined under a republican adStates of the Union, and any act which may ministration in habits of self government, be passed by Congress to effect this result and fitted for an association as a State, and

is a plain violation of the Constitution of to the enjoyment of a place in the con-

the United States... . federacy. A community so formed and organ4. Resolved, That to protect property ex- ized might well claim admission to the isting in the several States of the Union the Union and none would dispute the validity

people of these States invested the federal of the claim... . government with the powers of war and 9. Resolved, That a recognition of this negotiation and of sustaining armies and principle would deprive the questions benavies, and prohibited to State authorities tween Texas and the United States of their the exercise of the same powers. They made sectional character, and would leave them

no discrimination in the protection to be for adjustment, without disturbance from afforded or the description of the property sectional prejudices and passions, upon con-

to be defended, nor was it allowed to the siderations of magnanimity and Justice... . federal government to determine what should 11. Resolved, That in the event a domibe held as property. Whatever the States nant majority shall refuse to recognize the deal with as property the federal govern- great constitutional rights we assert, and shall ment is bound to recognize and defend as_ continue to deny the obligations of the Iedsuch. Therefore it is the sense of this Con- eral Government to maintain them, it is the vention that all acts of the federal govern- sense of this convention that the territories ment which tend to denationalize property should be treated as property, and divided of any description recognized in the Constitu- between the sections of the Union, so that

tion and laws of the States, or that dis- the rights of both sections be adequately criminate in the degree and efficiency of the secured in their respective shares. That we

protection to be afforded to it, or which are aware this course is open to grave obweaken or destroy the title of any citizen jections, but we are ready to acquiesce in upon American territories, are plain and the adoption of the line of 36 deg. 30 min. palpable violations of the fundamental law north latitude, extending to the Pacific ocean,

under which it exists. as an extreme ~cncession, upon consideration 5. Resolved, That the slaveholding States of what is due to the stability of our insticannot and will not submit to the enactment _ tution.

by Congress of any law imposing onerous 12. Resolved, That it is the opinion of conditions or restraints upon the rights of this Convention that this controversy should masters to remove with their property into _ be ended, either by a recognition of the conthe territories of the United States, or to — stitutional rights of the Southern people, or

any law making discrimination in favor of by an equitable partition of the territories. the proprietors of other property against That the spectacle of a confederacy of States,

them. ... involved in quarrels over the fruits of a 8. Resolved, That the performance of its war in which the American arms were

duties, upon the principle we declare, would crowned with glory, is humiliating. That the enable Congress to remove the embarrass- incorporation of the Wilmot Proviso in the ments in which the country is now involved. _ offer of settlement, a proposition which four-

The vacant territories of the United States, teen States regard as disparaging and disno longer regarded as prizes for sectional honorable, is degrading to the country. A rapacity and ambition, would be gradually termination to this controversy by the disoccupied by inhabitants drawn to them by ruption of the confederacy or by the abantheir interests and feelings. The institutions donment of the territories to prevent such fitted to them would be naturally applied by a result, would be a climax to the shame governments formed on American ideas, and which attaches to the controversy which it

approved by the deliberate choice of their is the paramount duty of Congress to constituents. The community would be edu- avoid....

© 326 DOCUMENTS OF AMERICAN HISTORY 177. CLAYTON-BULWER TREATY April 19, 1850

(Malloy, ed. Treaties, Conventions, etc. Vol. I, p. 659 ff.) The project of a canal across the Isthmus had ties, be exempted from blockade, detention long been agitated, and was part of Polk’s or capture by either of the belligerents; and foreign policy. In as much as Great Britain this provision shall extend to such a distance controlled the eastern terminus of the Nicaragua from the two ends of the said canal as may route and was expanding in Central America, hereafter be found expedient to establish. the Clayton-Bulwer Treaty represented a diplo- Arr. IIL. In order to secure the construc. rogation of this treaty, see Doc. No. 354. On the tion of the said canal, the contracting parties Isthmian project see I. D. Travis, History of ¢ngage that if any such canal shall be underthe Clayton-Bulwer Treaty; L. M. Keasby, The taken upon fair and equitable terms by any Nicaragua Canal and the Monroe Doctrine; C.H. parties having the authority of the local Huberich, The Trans-Isthmian Canal: a Study Government or Governments through whose in American Diplomatic History, 1825-1904; territory the same may pass, then the perD. Perkins, The Monroe Doctrine, 1826-1867, sons employed in making the said canal, and

matic victory for the United States. For the ab- mom ,

ch. iv. their property used, or to be used, for that

object, shall be protected, from the comArt. I. The Governments of the United mencement of the said canal to its compleStates and Great Britain hereby declare that tion, by the Governments of the United neither the one nor the other will ever obtain States and Great Britain, from unjust detenor maintain for itself any exclusive control tion, confiscation, seizure or any violence over the said ship canal; agreeing that neither whatsoever... . will ever erect or maintain any fortifications ArT. V. The contracting parties further commanding the same, or in the vicinity engage, that when the said canal shall have thereof, or occupy, or fortify, or colonize been completed, they will protect it from or assume, or exercise any dominion over interruption, seizure or unjust confiscation, Nicaragua, Costa Rica, the Mosquito coast, and that they will guarantee the neutrality or any part of Central America; nor will thereof, so that the said canal may forever either make use of any protection which be open and free, and the capital invested either affords or may afford, or any alliance therein secure. Nevertheless, the Governwhich either has or may have to or with any ments of the United States and Great Britain, state or people, for the purpose of erecting in according their protection to the construcor maintaining any such fortifications, or of tion of the said canal, and guaranteeing its

occupying, fortifying, or colonizing Nicara- neutrality and security when completed, gua, Costa Rica, the Mosquito coast, or any always understand that this protection and part of Central America, or of assuming or guarantee are granted conditionally, and may exercising dominion over the same; nor will be withdrawn by both Governments, or either the United States or Great Britain take ad- Government, if both Governments, or either vantage of any intimacy, or use any alliance, Government, should deem that the persons connection or influence that either may pos- or company undertaking or managing the sess with any State or Government through same adopt or establish such regulations conwhose territory the said canal may pass, for cerning the traffic thereupon as are contrary the purpose of acquiring or holding, directly to the spirit and intention of this convenor indirectly, for the citizens or subjects of — tion, elther by making unfair discriminations the one, any rights or advantages in regard in favor of the commerce of one of the conto commerce or navigation through the said tracting parties over the commerce of the canal which shall not be offered on the same _ other, or by imposing oppressive exactions terms to the citizens or subjects of the other. or unreasonable tolls upon the passengers, Art. II. Vessels of the United States or vessels, goods, wares, merchandise or other Great Britain traversing the said canal shall, articles. Neither party, however, shall within case of war between the contracting par- draw the aforesaid protection and guarantee

TRIAL OF Mrs. DOUGLAS 327 without first giving six months’ notice to the should be unnecessarily lost in commencing

other. and constructing the said canal, the Govern-

Art. VI. The contracting parties in this ments of the United States and Great Britain convention engage to invite every State with determine to give their support and enwhich both or either have friendly inter- couragement to such persons or company course to enter into stipulations with them as may first offer to commence the same, similar to those which they have entered with the necessary capital, the- consent of into with each: other, to the end that all the local authorities, and on such principles

other States may share in the honor and as accord with the spirit and intention of advantage of having contributed to a work of _ this convention... .

such general interest and importance as the ArT. VIII. The Governments of the canal herein contemplated. And the contract- United States and Great Britain having not ing parties likewise agree that each shall enter only desired, in entering into this conven-

into treaty stipulations with such of the tion, to accomplish a particular object, but Central American States as they may deem also to establish a general principle, they advisable, for the purpose of more effectu- hereby agree to extend their protection, by ally carrying out the great design of this treaty stipulations, to any other practicable convention, namely, that of constructing and communications, whether by canal or rail-

maintaining the said canal as a ship com- way, across the isthmus which connects munication between the two oceans for the North and South America, and especially to benefit of mankind, on equal terms to all, the interoceanic communications, should the and of protecting the same; and they also same prove to be practicable, whether by agree that the good offices of either shall be canal or railway, which are now proposed employed, when requested bythe other, in to be established by the way of Tehuantepec aiding and assisting the negotiation of such or Panama. In granting, however, their joint treaty stipulations; and should any dif- protection to any such canals or railways as ferences arise as to right or property over are by this article specified, it is always un-

the territory through which the said canal derstood by the United States and Great shall pass between the States or Govern- Britain that the parties constructing or ownments of Central America, and such dif- ing the same shall impose no other charges ferences should in any way impede or ob-- or conditions of traffic thereupon than the struct the execution of the said canal, the aforesaid Governments shall approve of as Governments of the United States and Great just and equitable; and that the same canals Britain will use their good offices to settle or railways, being open to the citizens and

such differences in the manner best suited subjects of the United States and Great to promote the interests of the said canal, Britain on equal terms, shall also be open and to strengthen the bonds of friendship on like terms to the citizens and subjects of and alliance which exist between the con- every other State which is willing to grant

tracting parties. : , thereto such protection as the United States _ Art. VII. It being desirable that no time and Great Britain engage to afford.

| TO READ

' 178. TRIAL OF MRS. DOUGLAS FOR TEACHING COLORED CHILDREN Norfolk, Virginia, 1853 (American State Trials, ed. J. D. Lawson, Vol. VII, p. 56 ff.)

The slave codes of most Southern states forbade _jail. See U. B. Phillips, American N egro Slavery; teaching slaves to read or write; some, as those C S. Sydnor, Slavery in Mississippi.

of Virginia, extended the prohibition to all Loge

negroes. Though these laws were generally dis- BAKER, J. Upon an indictment found regarded, the decision of the Court below indi- 84inst you for assembling with negroes to

cates that they were at times enforced. Mrs. instruct them to read and write, and for Douglas was convicted and spent one month in associating with them in an unlawful as-

328 DocUMENTS OF AMERICAN History sembly, you were found guilty, and a mere confined to wrongs committed upon the nominal fine imposed, on the last day of this negro; wrongs are committed and cruelly court held in the month of November. ... practiced in a like degree by the lawless The Court is not called on to vindicate the white man upon his own color; and while the policy of the law in question, for so long as negroes of our town and State are known it remains upon the statute book, and un- to be surrounded by most of the substantial repealed, public and private justice and comforts of life, and invited both by precept morality require that it should be respected and example to participate in proper, moral and sustained, There are persons, I believe, and religious duties, it argues, it seems to in our community, opposed to the policy me, a sickly sensibility towards them to say of the law in question. They profess to be- their persons, and feelings, and interests are lieve that universal intellectual culture is not sufficiently respected by our laws, which,

necessary to religious instruction and educa- in effect, tend to nullify the act of our tion, and that such culture is suitable to a Legislature passed for the security and prostate of slavery; and there can be no misap-_ tection of their masters.

prehension as to your opinions on this sub- ... The first legislative provision upon ject, judging from the indiscreet freedom this subject was introduced in the year 1831, with which you spoke of your regard for the immediately succeeding the bloody scenes of

colored race in gencral. Such opinions in the memorable Southampton insurrection: the present state of our society I regard and that law being found not. sufficiently as manifestly mischievous. It is not true penal to check the wrongs complained of, that our slaves cannot be taught religious was re-enacted with additional penalties in and moral duty, without being able to read the year 1848, which last mentioned act,

the Bible and use the pen... . after several years’ trial and experience, has

A valuable report or document recently been re-affirmed by adoption, and incorpopublished in the city of New York by the rated into our present code. After these sevSouthern Aid Society sets forth many valua- eral and repeated recognitions of the wisdom ble and important truths upon the condition and propriety of the said act, it may well of the Southern slaves, and the utility of be said that bold and open opposition to it

moral and religious instruction, apart from is a matter not to be slightly regarded, a knowledge of books. J recommend the care- especially as we have reason to believe that ful perusal of it to all whose opinions concur every Southern slave state in our country, with your own. It shows that a system of asa measure of self-preservation and protec-

catechetical instruction, with a clear and_ tion, has deemed it wise and just to adopt simple exposition of Scripture, has been em- laws with similar provisions.

ployed with gratifying success; that the slave There might have been no occasion for population of the South are peculiarly sus- such enactments in Virginia, or elsewhere, on

ceptible of good religious influences. Their the subject of negro education, but as a mere residence among a Christian people has matter of self-defense against the schemes

wrought a great and happy change in their of Northern incendiaries, and the outcry condition: they have been raised from the against holding our slaves in bondage. Many night of heathenism to the light of Christian- now living well remember how, and when,

ity, and thousands of them have been and why the anti-slavery fury began, and brought to a saving knowledge of the Gospel. by what means its manifestations were made Of the one hundred millions of the negro public. Our mails were clogged with abolition race, there cannot be found another so large pamphlets and inflammatory documents, to be a body as the three millions of slaves in the distributed among our Southern negroes to in-

United States, at once so intelligent, so in- duce them to cut our throats, Sometimes, it clined to the Gospel, and so blessed by the may be, these libelous documents were diselevating influence of civilization and Chris- tributed by Northern citizens professing tianity. Occasional instances of cruelty and Southern feelings, and at other times by oppression, it is true, may sometimes occur, Southern people professing Northern feeland probably will ever continue to take place ings. These, however, were not the only under any system of laws; but this is not} means resorted to by the Northern fanatics

APPEAL OF THE INDEPENDENT DEMOCRATS 329 to stir up insubordination among our slaves. tection for the South, and that was They scattered far and near pocket handker- adopted. ... In vindication of the policy chiefs, and other similar articles, with fright- and justness of our laws, which every indiful engravings, and printed over with anti- vidual should be taught to respect, the judgslavery nonsense, with the view to work ment of the Court is, in addition to the proper

upon the feeling and ignorance of our fine and costs, that you be imprisoned for

negroes, who otherwise would have remained the period of one month in the jail of this comfortable and happy. Under such circum- city. ... stances there was but one measure of pro-

179. APPEAL OF THE INDEPENDENT DEMOCRATS January 19, 1854 (J. W. Schuckers, Life and Public Services of S. P. Chase, p. 140 ff.) The effort of Douglas to push through the of a sacred pledge; as a criminal betrayal Kansas-Nebraska Bill was the immediate occasion _ of precious rights; as part and parcel of an

for this “appeal”, signed by six of the most atrocious plot to exclude from a vast unocProminent abolitionists in the country. More cupied region immigrants from the Old World moderate Democrats like Seward refused to sign and free laborers from our own States, and fect: it was reprinted in all of the important convert it into a dreary region of despotism, papers of the country, and was partly responsible mhabited by masters and slaves.

the document. The Appeal had a profound ef- “oe , ,

for the organization of the Republican Party. Take your maps, fellow citizens, we enFor Douglas’s reply to the Appeal, see Con- treat you, and see what country it is which gressional Globe, 33 Cong. 1st Sess. XXVIII, this bill gratuitously and recklessly proposes pt. I, p. 275 ff. See A. Beveridge, Abraham Lin- to open to slavery. tk. coln, Vol. If, p. 184 ff.; J. F. Rhodes, History This immense region, occupying the very of the United States jrom the Compromise of heart of the North American Continent, and

Ae Bat sp vi J ohnson, 5. A. Douglas, larger, by thirty-three thousand square miles,

a an than all the existing free States—including

California . . . this immense region the bill As Senators and Representatives in the now before the Senate, without reason and Congress of the United States it is our duty without excuse, but in flagrant disregard of tO warn our constituents, whenever im- sound policy and sacred faith, purposes to minent danger menaces the freedom of our open to slavery. institutions or the permanency of the Union. We beg your attention, fellow-citizens, to Such danger, as we firmly believe, now a few historical facts: impends, and we earnestly solicit your prompt The original settled policy of the United

attention to it. States, clearly indicated by the Jefferson proAt the last session of Congress a bill for viso of 1784 and the Ordinance of 1787, was

the organization of the Territory of Ne- non-extension of slavery. braska passed the House of Representatives In 1803 Louisiana was acquired by purby an overwhelming majority. That bill was chase from F rance. ... based on the principle of excluding slavery In 1818, six years later, the inhabitants from the new Territory. It was not taken of the Territory of Missouri applied to Conup for consideration in the Senate and con- gress for authority to form a State constitu-

sequently failed to become a law. tion, and for admission into the Union. There At the present session a new Nebraska bill were, at that time, in the whole territory has been reported by the Senate Committee acquired from France, outside of the State on Territories, which, should it unhappily of Louisiana, not three thousand slaves.

receive the sanction of Congress, will open There was no apology, in the circumall the unorganized Territories of the Union — stances of the country, for the continuance of

to the ingress of slavery. Slavery. The original national policy was We arraign this bill as a gross violation against it, and not less the plain language

330 DOCUMENTS OF AMERICAN History of the treaty under which the territory had to freedom and free Institutions forever. For

been acquired from France. more than thirty years—during more than It was proposed, therefore, to incorporate half our national existence under our present

in the bill authorizing the formation of a Constitution—this compact has been uniState government, a provision requiring that versally regarded and acted upon as inviolathe constitution of the new State should con- ble American law. In conformity with it, tain an article providing for the abolition Iowa was admitted as a free State and Min-

of existing slavery, and prohibiting the nesota has been organized as a free Terri-

further introduction of slaves. tory.

This provision was vehemently and perti- It is a strange and ominous fact, well naciously opposed, but finally prevailed in calculated to awaken the worst apprehensions the House of Representatives by a decided and the most fearful forebodings of future vote. In the Senate it was rejected, and—in calamities, that it is now deliberately proconsequence of the disagreement between the posed to repeal this prohibition, by implica-

two Houses—the bill was lost. tion or directly—the latter certainly the

At the next session of Congress, the con- manlier way—and thus to subvert the comtroversy was renewed with increased violence. pact, and allow slavery in all the yet unIt was terminated at length by a compromise. organized territory. Missouri was allowed to come into the Union We cannot, in this address, review the with slavery; but a section was inserted in various pretenses under which it is attempted the act authorizing her admission, excluding to cloak this monstrous wrong, but we must

Slavery forever from all the territory not altogether omit to notice one.

acquired from France, not included in the It is said that Nebraska sustains the same

new State, lying north of 36° 30%. ... relations to slavery as did the territory The question of the constitutionality of this acquired from Mexico prior to 1850, and prohibition was submitted by President Mon- that the pro-slavery clauses of the bill are roe to his cabinet. John Quincy Adams was necessary to carry into effect the compromise

then Secretary of State; John C. Calhoun of that year. was Secretary of War; William H. Crawford No assertion could be more groundwas Secretary of the Treasury; and William less... . Wirt was Attorney-General. Each of these The statesmen whose powerful support

eminent gentlemen—three of them being carried the Utah and New Mexico acts never from the slave states—gave a written opin- dreamed that their provisions would be ever ion, affirming its constitutionality, and there- applied to Nebraska... . upon the act received the sanction of the Here is proof beyond controversy that the President himself, also from a slave State. principle of the Missouri act prohibiting

Nothing is more certain in history than slavery north of 36° 30’, far from being the fact that Missouri could not have been abrogated by the Compromise Acts, is exadmitted as a slave State had not certain pressly affirmed; and that the proposed remembers from the free States been recon- peal of this prohibition, instead of being an ciled to the measure by the incorporation affirmation of the Compromise Acts, is a of this prohibition into the act of admission. repeal of a very prominent provision of the

Nothing is more certain than that this pro- most important act of the series. It is

hibition has been regarded and accepted by solemnly declared in the very Compromise the whole country as a solemn compact Acts “that nothing herein contained shall be against the extension of slavery into any construed to impair or qualify” the prohibipart of the territory acquired from France _ tion of slavery north of 36° 30’; and yet in lying north of 36° 30’, and not included in _ the face of this declaration, that sacred prothe new State of Missouri. The same act— hibition is said to be overthrown. Can prelet it be ever remembered—which authorized sumption further go? To all who, in any the formation of a constitution by the State, way, lean upon these compromises, we comwithout a clause forbidding slavery, con- mend this exposition. secrated, beyond question and beyond honest These pretenses, therefore, that the terrecall, the whole remainder of the Territory ritory covered by the positive prohibition of

THE KANSAS-NEBRASKA ACT 331 1820, sustains a similar relation to slavery ALL MEN. Do not submit to become agents with that acquired from Mexico, covered in extending legalized oppression and system-

by no prohibition except that of disputed tized injustice over a vast territory yet exconstitutional or Mexican law, and that the empt from these terrible evils. Compromises of 1850 require the incorpora- We implore Christians and Christian minis-

tion of the pro-slavery clauses of the Utah ters to interpose. Their divine religion reand New Mexico Bill in the Nebraska act, quires them to behold in every man a are mere inventions, designed to cover from brother, and to labor for the advancement public reprehension meditated bad faith. and regeneration of the human race. Were he living now, no one would be more Whatever apologies may be offered for the forward, more eloquent, or more indignant toleration of slavery in the States, none can in his denunciation of that bad faith, than be offered for its extension into TerritoHenry Clay, the foremost champion of both ries where it does not exist, and where that

compromises. ... extension involves the repeal of ancient law

We confess our total inability properly to and the violation of solemn compact. Let all delineate the character or describe the con- protest, earnestly and emphatically, by corsequences of this measure. Language fails respondence, through the press, by memorito express the sentiments of indignation and ls, by resolutions of public meetings and abhorrence which it inspires; and no vision legislative bodies, and in whatever other less penetrating and comprehensive than that mode may seem expedient, against this enor-

of the All-Seeing can reach its evil is- mous crime.

, sues. ... For ourselves, we shall resist it by speech We appeal to the people. We warn you and vote, and with all the abilities which " that the dearest interests of freedom and God has given us. Even if overcome in the the Union are in imminent peril. Demagogues impending struggle, we shall not submit. We may tell you that the Union can be main- — shall go home to our constituents, erect anew

tained only by submitting to the demands the standard of freedom, and call on the of slavery. We tell you that the Union can people to come to the rescue of the country only be maintained by the full recognition from the domination of slavery. We will not of the just claims of freedom and man. The’ despair; for the cause of human freedom Union was formed to establish justice and is the cause of God.

secure the blessings of liberty. When it fails 5. P. Chase to accomplish these ends it will be worth- Charles Sumner

long endure. Edward Wade We entreat you to be mindful of that Gerritt Smith less, and when it becomes worthless it cannot J. R. Giddings

fundamental maxim of Democracy—EQUAL Alexander De Witt.

RIGHTS AND EXACT JUSTICE FOR

180. THE KANSAS-NEBRASKA ACT May 30, 1854 (U.S. Statutes at Large, Vol. X, p. 277 ff.) This momentous measure organized two Ter- by Chase, issued an “Appeal of the Independent ritories, Kansas and Nebraska, divided by the Democrats”, Doc. No. 179, calling for the orfortieth parallel; it specifically repealed the Mis- ganization of an anti-slavery party, and in Februsourl Compromise, which had come to be re- ary and July of 1854 the new Republican Party garded as sacrosanct by many people in the came into existence. The passage of the KansasNorth, and recognized the principle of “squatter Nebraska Bill with its provision for “popular sovereignty.” Probably no bill ever introduced sovereignty” led to a struggle for the control

to Congress was fraught with graver conse- of Kansas that soon earned for that Territory quences. Senator Douglas, who sponsored the the name of “Bleeding” Kansas. Lincoln, in his

Bill, became anathema to a large part of the debates with Douglas, attacked the theory of North; a group of Northern Democrats, headed _ popular sovereignty with such skill as seriously

332 DOCUMENTS OF AMERICAN HIistToORY to damage Douglas’s popularity in the South and __ plicable, shall have the same force and effect

to earn for himself a national reputation. It was within the said Territory of Nebraska as charged and long believed that Douglas, in his elsewhere within the United States, except championship of this bill, was actuated solely the eighth section of the act preparatory to by ambition for the Presidency. It is probable, the admission of Missouri into the Un; however, that Douglas sincerely believed that Ome . non, the territory opened up by the Kansas-Nebraska approved March 6, 1820, which, being inbill would become, because of its geography and Consistent with the principle of nonclimate, free territory. He was also profoundly intervention by Congress with slavery in the interested in the construction of a trans-con- States and Territories, as recognized by the tinental railway along a Northern route, and legislation of eighteen hundred and fifty, anxious therefore to throw open the region west commonly called the Compromise Measures,

of Iowa to settlement. The literature on the jg hereby declared inoperative and void; it Kansas-Nebraska Act is extensive. See, P. O. Ray, being the true intent and meaning of this

The Repeal of theHistory Missouriof Compromise; S. B. t not to legislate into4Territ Dixon, A True the Missouri Comacer 8 S yslavery into any erritory

promise and Its Repeal; F. H. Hodder, ‘Genesis or State, nor to exclude it therefrom, but of the Kansas-Nebraska Act,” Wisconsin Hist, © leave the people thereof perfectly free Soc. Proceedings, 1912; J. F. Rhodes, History of to form and regulate their domestic instituthe United States, Vol. I, ch. v; A. Johnson, S. tions in their own way, subject only to the A. Douglas, chs. vili-ix; A. J. Beveridge, Abra- Constitution of the United States: Provided, ham Lincoln, Vol. Il, chs. iii-iv; G. F. Milton, That nothing herein contained shall be con-

The Eve of the Conflict, ch. vii. ff. strued to revive or put in force any law or regulation which may have existed prior to the act of March 6, 1820, either protectAn Act to Organize the Territories of ing, establishing, prohibiting, or abolishing

Nebraska and Kansas. slavery... .

Be it enacted ... , That all that part of SEC. 19. And be it further enacted, That

the territory of the United States included all that part of the Territory of the United | within the following limits, except such por- States included within the following limits, tions thereof as are hereinafter expressly except such portions thereof as are hereinexempted from the operations of this act, to after expressly exempted from the opera-

wit: beginning at a point in the Missouri tions of this act, to wit, beginning at a

River where the fortieth parallel of north point on the western boundary of the State latitude crosses the same; thence west on of Missouri, where the thirty-seventh parallel said parallel to the east boundary of the of north latitude crosses the same; thence Territory of Utah, on the summit of the west on said parallel to the eastern boundary Rocky Mountains; thence on said summit of New Mexico; thence north on_ said northward to the forty-ninth parallel of north boundary to latitude thirty-eight; thence folJatitude; thence east on said parallel to the lowing said boundary westward to the east

western boundary of the territory of Min- boundary of the Territory of Utah, on the nesota; thence southward on said boundary summit of the Rocky Mountains; thence to the Missouri River; thence down the main northward on said summit to the fortieth channel of said river to the place of begin- parallel of latitude; thence east on said ning, be, and the same is hereby, created into _ parallel to the western boundary of the State

a temporary government by the name of of Missouri; thence south with the western the Territory of Nebraska; and when ad- boundary of said State to the place of bemitted as a State or States, the said Ter- ginning, be, and the same is hereby, created ritory, or any portion of the same, shall be into a temporary government by the name received into the Union with or without of the Territory of Kansas; and when adslavery, as their constitution may prescribe mitted as a State or States, the said Terri-

at the time of their admission: .. . tory, or any portion of the same, shall be Sec. 14. And be it further enacted,... received into the Union with or without

That the Constitution, and all laws of the slavery, as their constitution may prescribe

United States which are not locally inap- at the time of their admission: ...

THE OSTEND MANIFESTO 333 181. THE OSTEND MANIFESTO October 18, 1854 (U. S, 33d Congress, 2d Session, House Executive Doc. No. 93) In August, 1854, Secretary of State Marcy in- human events, the time has arrived when structed our minister to Spain, Pierre Soule, to the vital interests of Spain are as seriously negotiate for the purchase of Cuba, and sug- jnvolved in the sale, as those of the United

gested a consultation with our ministers to ctates in the purchase, of the island and

2 ; orable toa purchase. both nations. opposition to such The three min- ; | . | ; isters accordingly met at Ostend, Belgium, and Under these circumstances we cannot an France and England, Mr. Mason and Mr. Bu- that the transaction will prove equally hon-

chanan, for the purpose of considering European ;

drew up the notorious Ostend Manifesto. The ticipate a failure, unless possibly through the report was repudiated by Marcy, and Soulé re- malign influence of foreign powers who possigned his mission. Buchanan’s participation in sess no right whatever to interfere in the the Manifesto recommended him to the Southern matter. Democrats as a suitable candidate for the Presi- We proceed to state some of the reasons dency. See, S. F. Bemis, ed. American Secretaries hich have brought us to this conclusion, of State, Vol. VI, P. 183 ff; R. F. Nichols, Frank- and, for the sake of clearness, we_ shall ster, “Mr. Marcy, the Cuban Question and the specily them under two distinct heads: Ostend Manifesto,” Pol. Sci. Quart., Vol. VIII; 1. The United States ought, if practicable, A. A. Ettinger, Mission to Spain of Pierre Soulé, 0 purchase Cuba with as little delay as

lin Pierce, chs, xlvi-xlviii, and appendix; S. Web- , oe

1853-1855. possible.

2. The probability is great that the govern-

Aix la Chapelle, October 18, 1854. ment and cortes of Spain will prove willing Sir:—The undersigned, in compliance with — to sell it, because this would essentially pro-

the wish expressed by the President in the mote the highest and best interests of the several confidential despatches you have ad- Spanish people.

dressed to us, respectively, to that effect, Then, 1. It must be clear to every reflecthave met in conference, first at Ostend, in ing mind that, from the peculiarity of its Belgium, on the 9th, 10th, and 11th instant, geographical position, and the considerations and then at Aix la Chapelle, in Prussia, on attendant on it, Cuba is as necessary to the the days next following, up to the date North American republic as any of its pres-

hereof. ... ent members, and that it belongs naturally We have arrived at the conclusion, and to that great family of States of which the

are thoroughly convinced, that an immediate Union is the providential nursery. . . .

and earnest effort ought to be made by the The natural and main outlet to the prodgovernment of the United States to purchase —_ ucts of this entire population, the highway of

Cuba from Spain at any price for which it their direct intercourse with the Atlantic and can be obtained, not exceeding the sum of the Pacific States, can never be secure, but

$—. must ever be endangered whilst Cuba is a deThe proposal should, in our opinion, be pendency of a distant power in whose posmade in such a manner as to be presented _ session it has proved to be a source of conthrough the necessary diplomatic forms to stant annoyance and embarrassment to their

the Supreme Constituent Cortes about to interests. assemble. On this momentous question, in Indeed, the Union can never enjoy repose, which the people both of Spain and the nor possess reliable security, as long as Cuba United States are so deeply interested, all is not embraced within its boundaries. our proceedings ought to be open, frank, Its immediate acquisition by our governand public. They should be of such a char- ment is of paramount importance, and we acter as to challenge the approbation of cannot doubt but that it is a consummation

the world. devoutly wished for by its inhabitants.

We firmly believe that, in the progress of The intercourse which its proximity to our

334 DOCUMENTS OF AMERICAN HisToRyY coasts begets and encourages between them ment of this vexed question, by the cession and the citizens of the United States, has, of Cuba to the United States, would forever in the progress of time, so united their in- prevent the dangerous complications between terests and blended their fortunes that they nations to which it may otherwise give birth. now look upon each other as if they were It is certain that, should the Cubans them-

one people and had but one destiny. selves organize an insurrection against the Considerations exist which render delay Spanish government, and should other indein the acquisition of this island exceedingly pendent nations come to the aid of Spain in

dangerous to the United States... . the contest, no human power could, in our Cuba has thus become to us an unceasing opinion, prevent the people and government

danger, and a permanent cause of anxiety of the United States from taking part in

and alarm. such a civil war in support of their neighbors |

But we need not enlarge on these topics. and friends. It can scarcely be apprehended that foreign But if Spain, dead to the voice of her own powers, in violation of international law, interest, and actuated by stubborn pride and would interpose their influence with Spain to a false sense of honor, should refuse to sell

prevent our acquisition of the island... . Cuba to the United States, then the quesBesides, the commercial nations of the tion will arise, What ought to be the course world cannot fail to perceive and appreciate of the American government under such cirthe great advantages which would result to cumstances? Self-preservation is the first law

their people from a dissolution of the forced of nature, with States as well as with inand unnatural connexion between Spain and dividuals. All nations have, at different Cuba, and the annexation of the latter to periods, acted upon this maxim. Although the United States. The trade of England it has been made the pretext for committing and France with Cuba would, in that event, as- flagrant injustice, as in the partition of sume at once an important and profitable char- Poland and other similar cases which history acter, and rapidly extend with the increasing records, yet the principle itself, though often

population and prosperity of the island. abused, has always been recognized. . . .

2. But if the United States and every Our past history forbids that we should

commercial nation would be benefited by acquire the island of Cuba without the conthis transfer, the interests of Spain would sent of Spain, unless justified by the great also be greatly and essentially promoted. law of self-preservation. We must, in any She cannot but see what such a sum of event, preserve our own conscious rectitude money as we are willing to pay for the and our own self-respect. island would effect in the development of Whilst pursuing this course we can afford

her vast natural resources. .. . to disregard the censures of the world, to Should Spain reject the present golden which we have been so often and so un-

opportunity for developing her resources, and justly exposed.

removing her financial embarrassments, it After we shall have offered Spain a price

may never again return... . for Cuba far beyond its present value, and Under no probable circumstances can Cuba this shall have been refused, it will then ever yield to Spain one per cent. on the large be time to consider the question, does Cuba,

amount which the United States are willing in the possession of Spain, seriously ento pay for its acquisition. But Spain is in danger our internal peace and existence of imminent danger of losing Cuba, without our cherished Union?

remuneration. .. . Should this question be answered in the

It is not improbable, therefore, that Cuba affirmative, then, by every law, human and may be wrested from Spain by a successful divine, we shall be justified in wresting it revolution; and in that event she will lose from Spain if we possess the power; and both the island and the price which we are this upon the very same principle that would now willing to pay for it—a price far beyond justify an individual in tearing down the what was ever paid by one people to an- burning house of his neighbor if there were

other for any province. no other means of preventing the flames from It may also be remarked that the settle- destroying his own home.

MASSACHUSETTS PERSONAL LIBERTY ACT 335 Under such circumstances we ought neither endanger or actually to consume the fair to count the cost nor regard the odds which fabric of our Union.

Spain might enlist against us. We forbear to We fear that the course and current of enter into the question, whether the present events are rapidly tending towards such a condition of the island would justify such catastrophe. We, however, hope for the best, a measure? We should, however, be recreant though we ought certainly to be prepared to our duty, be unworthy of our gallant fore- for the worst... .

fathers, and commit base treason against Yours, very respectfully,

our posterity, should we permit Cuba to be James Buchanan. Africanized and become a second St. Do- J. Y. Mason. mingo, with all its attendant horrors to the Pierre Soule. white race, and suffer the flames to extend Hon. Wm. L. Marcy, Secretary of State. to our own neighboring shores seriously to

182. MASSACHUSETTS PERSONAL LIBERTY ACT May 21, 1855 (Acts and Resolves Passed by the General Court of Massachusetts in the year 1855, p. 924 ff.) This remarkably stringent personal liberty act of said courts, or by any judge of probate; which practically nullified the Fugitive Slave Act and it may be issued by any justice of the of 1850, resulted from the revulsion of feeling at peace, if no magistrate above named is

the time of the capture of Anthony Burns in- Lown to said justice of the peace to be

1854. The bill was passed over the veto of Gov- within five miles of the place where the against Judge E. G. Loring, who had returned party Is imprisoned or restrained, ane it sm Burns to slavery. Governor Gardner refused to be returnable before the supreme judicial remove Loring, but he was subsequently removed court, or any one of the justices thereof, in 1858. See J. Parker, Personal Liberty Laws; whether the court may be in session or not, J. Hurd, The Law of Freedom and Bondage; and in term time or vacation... . -R. C. Hurd, Personal Liberty and Habeas Cor- Sec. 6. If any claimant shall appear to depus; H. Wilson, History of the Rise and Fall and the custody or possession of the perof the Slave Power, Vol. I; C. E. Stevens, son for whose benefit such writ is sued out, Anthony Burns, a History; A. B. Hart, ed. Com- such claimant shall state in writing the facts monwealth History of Massachusetts, Vol. IV, ; ; ,; vo ch. xvi; C. M. Fuess, Life of Caleb Cushing; on which he relies, with precision and cer-

ernor Gardner. Section fourteen was directed ty is j . d trained. and it shall

T. Parker, Discourses of Slavery, Vol. II. tainty; and neither the claimant of the al-

leged fugitive, nor any person interested in An Act to protect the Rights and Liberties his alleged obligation to service or labor, nor of the People of the Commonwealth of the alleged fugitive, shall be permitted to

Massachusetts. testify at the trial of the issue; and no con-

Sec. 1. [Act of 1842 extended. | fessions, admissions or declarations of the

Sec. 2. The meaning of the one hundred and _ alleged fugitive against himself shall be given

eleventh chapter of the Revised Statutes is in evidence. Upon every question of fact inhereby declared to be, that every person volved in the issue, the burden of proof shall imprisoned or restrained of his liberty is be on the claimant, and the facts alleged and entitled, as of right and of course, to the necessary to be established, must be proved

writ of habeas corpus, except in the cases by the testimony of at least two credible mentioned in the second section of that witnesses, or other legal evidence equivalent

chapter. thereto, and by the rules of evidence known Sec. 3. The writ of habeas corpus may be and secured by the common law; and no issued by the supreme judicial court, the ex parte deposition or affidavit shall be recourt of common pleas, by any justice’s court ceived in proof in behalf of the claimant, or police court of any town or city, by any and no presumption shall arise in favor of

court of record, or by any Justice of either the claimant from any proof that the al-

336 DOCUMENTS OF AMERICAN HISTORY leged fugitive or any of his ancestors had _ the ninth section of this act, shall be deemed actually been held as a slave, without proof to have resigned any commission from the

that such holding was legal. Commonwealth that he may possess, and he Sec. 7. If any person shall remove from the _ shall be thereafter incapacitated from appear-

limits of this Commonwealth, or shall assist ing as counsel or attorney in the courts of in removing therefrom, or shall come into the this Commonwealth... . Commonwealth with the intention of remov- Sec. 14. Any person holding any judicial ofing or of assisting in the removing there- fice under the constitution or laws of this from, or shall procure or assist in procuring Commonwealth, who shall continue, for ten to be so removed, any person being in the’ days after the passage of this act, to hold the peace thereof who is not “held to service or office of United States commissioner, or any labor” by the “party” making “claim,” or office .. . which qualifies him to issue any

who has not “escaped” from the “party” warrant or other process... under the

making ‘“‘claim,” within the meaning of those [Fugitive Slave Acts] shall be deemed to

words in the constitution of the United have violated good behavior, to have given States, on the pretence that such person is reason for the loss of public confidence, and so held or has so escaped, or that his “serv- furnished sufficient ground either for imice or labor” is so “due,” or with the intent peachment or for removal by address. to subject him to such “service or labor,” Sec. 15. Any sheriff, deputy sheriff, jailer,

he shall be punished by a fine of not less coroner, constable, or other officer of this than one thousand, nor more than five thou- Commonwealth, or the police of any city sand dollars, and by imprisonment in the State or town, or any district, county, city or town

Prison not less than one, nor more than five’ officer, or any officer or other member of

years. ... the volunteer militia of this Commonwealth, Sec. 9. No person, while holding any office who shall hereafter arrest .. . any person

of honor, trust, or emolument, under the laws _ for the reason that he is claimed or adjudged

of this Commonwealth, shall, in any capac- to be a fugitive from service or labor, shall

ity, issue any warrant or other process, or be punished by fine... and by imprisongrant any certificate, under or by virtue of ment.... an act of congress [February 12, 1793] ... Sec. 16. The volunteer militia of the Comor under or by virtue of an act of congress monwealth shall not act in any manner in [September 18, 1853] ... or shall in any the seizure . . . of any person for the reason capacity, serve any such warrant or other that he is claimed or adjudged to be a fugi-

process. tive from service or labor... . Sec. 10. Any person who shall grant any Sec. 19. No jail, prison, or other place of certificate under or by virtue of the acts of confinement belonging to, or used by, either congress, mentioned in the preceding section, the Commonwealth of Massachusetts or any shall be deemed to have resigned any com- county therein, shall be used for the detenmission from the Commonwealth which he tion or imprisonment of any person accused

may possess, his office shall be deemed or convicted of any offence created by [the vacant, and he shall be forever thereafter Federal Fugitive Slave Acts] . . . or accused ineligible to any office of trust, honor or or convicted of obstructing or resisting any emolument under the laws of this Common- process, warrant, or order issued under either

wealth. of said acts, or of rescuing, or attempting

Sec. 11. Any person who shall act as counsel to rescue, any person arrested or detained or attorney for any claimant of any alleged under any of the provisions of either of the fugitive from service or labor, under or by _ said acts.... virtue of the acts of congress mentioned in

AMERICAN PARTY PLATFORM 337 183. AMERICAN PARTY PLATFORM 1856

(A Political Text-book for 1860, p. 23 ff.) The American or Know-Nothing Party repre- and to regulate their domestic and social afsented the nativist sentiment, but it attracted fairs in their own mode, subject only to the large numbers, North and South, who hoped provisions of the Federal Constitution, with that its program might distract attention from the privilege of admission into the Union the slavery struggle and that it might effect some sb never they have the requisite population reconciliation between the sections. the Party for one Representative in Congress: Pronominated ex-president Millard Fillmore, and se- ‘ cured almost nine hundred thousand votes. It vided, always, that none but those who are was particularly strong in Massachusetts, New Citizens of the United States, under the ConYork, and Maryland. On the Know-Nothings stitution and laws thereof, and who have a see, L. D. Scisco, Political Nativism in New fixed residence in any such Territory, ought York; L. F. Schmeckebier, Know-Nothing Party to participate in the formation of the Conin Maryland; C. Stickney, Know-Nothingism in stitution, or in the enactment of laws for said Rhode Island; H. J. Desmond, The Know- Territory or State. Nothing ihenl T. C. Smith, Parties and Slavery, 8. An enforcement of the principles that

yee no State or Territory ought to admit others ; than citizens to the right of suffrage, or of

2. The perpetuation of the Federal Union holding political offices of the United States.

and Constitution, as the palladium of our 9. A change in the laws of naturalization, civil and religious liberties, and the only making a continued residence of twenty-one sure bulwarks of American Independence. years, of all not heretofore provided for, an 3. Americans must rule America; and to indispensable requisite for citizenship herethis end native-born citizens should be se- after, and excluding all paupers, and persons lected for all State, Federal and municipal convicted of crime, from landing upon our offices of government employment, in prefer- shores; but no interference with the vested

ence to all others. Nevertheless, rights of foreigners.

4. Persons born of American parents resid- 10. Opposition to any union between

ing temporarily abroad, should be entitled to Church and State; no interference with reli-

all the rights of native-born citizens. gious faith or worship, and no test oaths for 5. No person should be selected for politi- office... . cal station (whether of native or foreign 13. Opposition to the reckless and unwise birth), who recognizes any allegiance or obli- policy of the present Administration in the

gation of any description to any foreign general management of our national affairs, prince, potentate or power, or who refuses to and more especially as shown in removing recognize the Federal and State Constitutions “Americans” (by designation) and Conserva-

(each within its sphere) as paramount to all tives in principle, from office, and placing

other laws, as rules of political action. foreigners and Ultraists in their places; as

6. The unqualified recognition and mainte- shown in a truckling subserviency to the

nance of the reserved rights of the several stronger, and an insolent and cowardly States, and the cultivation of harmony and bravado toward the weaker powers; as shown fraternal good will between the citizens of in reopening sectional agitation, by the rethe several States, and to this end, non-inter- peal of the Missouri Compromise; as shown ference by Congress with questions appertain- in granting to unnaturalized foreigners the ing solely to the individual States, and non- right of suffrage in Kansas and Nebraska; as intervention by each State with the affairs of | shown in its vacillating course on the Kansas

any other State. and Nebraska question; as shown in the cor7. The recognition of the right of native- ruptions which pervade some of the Departborn and naturalized citizens of the United ments of the Government; as shown in disStates, permanently residing in any territory gracing meritorious naval officers through thereof, to frame their constitution and laws, prejudice or caprice: and as shown in the

338 DocUMENTS OF AMERICAN HISTORY blundering mismanagement of our foreign re- otherwise resulting therefrom, we would

lations. build up the “American Party” upon the 14. Therefore, to remedy existing evils, principles herein before stated... . and prevent the disastrous consequences

184. CONSTITUTION OF THE COMMITTEE OF VIGILANTES OF SAN FRANCISCO May 15, 1856 (American State Trials, ed. J. D. Lawson, Vol. XV, p. 65 ff.) The influx of lawless elements to California at and lawful act for the maintenance of law the time of the Gold Rush had led, in 1851, to and order, and to sustain the laws when faiththe organization of Vigilance Committees who fully and properly administered; but we are took the law into their own hands. A new out- determined that no thief, burglar, incendiary,

break of lawlessness, together with the apparent . . breakdown of the machinery of law-enforcement, assassin, ballot-box stuffer, or other disturb-

led in 1856 to the organization of the famous “"* of the peace, shall escape punishment, San Francisco Committee of Vigilantes which either by the quibbles of the law, the inseH. H. Bancroft designated as “the greatest dem- curity of prisons, the carelessness or corruponstration in the cause of civil righteousness, tion of police, or a laxity of those who prewithout subversion of the law or of the govern- tend to administer justice; and to secure the ment that the world: has ever seen.” On the objects of this association, we do hereby work of the Committee, see, H. H. Bancroft, agree: Popular Tribunals, Vol. 11; F. Tuthill, History ist. That the name and style of this assoof California. For the earlier Vigilante organiza- ciation shall be the Committee of Vigilance, tion, see M. F. Williams, History of the San for th . £ the ballot-b he li Francisco Vigilance Committee of 1851, Uni- or t e protection of the ba ot- ox, the IVES, versity of California Publications in History, liberty and property of the citizens and resiVol. XII. For the workings of vigilante com- dents of the City of San Francisco. mittees elsewhere, see N. P. Langford, Vigilante 2d. That there shall be rooms for the delibDays and Ways; T. J. Dimsdale, Vigilantes of erations of the Committee, at which there Montana. The records of the Trial of criminals shall be some one or more members of the by the Vigilante Committee of 1856 can be Committee appointed for that purpose, n

found in American State Trials, Vol. XV. constant attendance at all hours of the day Whereas, it has become apparent to the and night, to receive the report of any memcitizens of San Francisco that there is no ber of the association, or of any other person security for life and property, either under or persons of any act of violence done to the the regulations of society, as it at present person OF property of any citizen of San exists, or under the laws as now administered; Francisco; and if, in the judgment of the and that by the association together of bad member or members of the Committee prescharacters, our ballot boxes have been stolen ent, it be such an act as justifies or demands and others substituted, or stuffed with votes the interference of this Committee, either in that were not polled, and thereby our elec- aiding in the execution of the laws, or the tions nullified, our dearest rights violated, and prompt and summary punishment of the of-

no other method left by which the will of fender, the Committee shall be at once asthe people can be manifested; therefore, the sembled for the purpose of taking such action citizens whose names are hereunto attached, as the majority of them, when assembled, do unite themselves into an association for _ shall determine upon.

maintenance of peace and good order of so- 3d. That it shall be the duty of any memciety—the preservation of our lives and prop- ber or members of the Committee on duty at erty, and to insure that our ballot boxes shall the committee rooms, whenever a general ashereafter express the actual and unforged semblage of the Committee be deemed neceswill of the majority of our citizens; and we do sary, to cause a call to be made, in such a

bind ourselves, each unto the other, by a manner as shall be found advisable. solemn oath, to do and perform every just 4th. That whereas, an Executive Commit-

DRED SCOTT V. SANDFORD 339 tee, has been chosen by the General Commit- 8th. That no persons, accused before this tee, 1t shall be the duty of said Executive body, shall be punished until after fair and Committee to deliberate and act upon all impartial trial and conviction. important questions, and decide upon the 9th. That whenever the General Commitmeasures necessary to carry out the objects tee have assembled for deliberation, the defor which this association was formed. cision of the majority, upon any question that Sth. That whereas, this Committee has may be submitted to them by the Executive been organized into subdivisions, the Execu- Committee, shall be binding upon the whole; tive Committee shall have the power to call, provided nevertheless, that when the delewhen they shall so determine, upon a board gates are deliberating upon the punishment to of delegates, to consist of three representa- be awarded to any criminals, no vote inflicting tives from each division, to confer with them the death penalty shall be binding, unless

upon matters of vital importance. passed by two-thirds of those present and

6th. That all matters of detail and gov- tntitled to vote. ernment shall be embraced in a code of By- 10th. That all good citizens shall be eligi-

Laws. ble for admission to this body, under such

7th. That the action of this body shall be regulations as may be prescribed by a comentirely and vigorously free from all con- mittee on qualifications; and if any unworthy sideration of, or participation in the merits persons gain admission, they shall on due or demerits, or opinion or acts, of any and proof be expelled; and believing ourselves to all sects, political parties, or sectional divi- be executors of the will of the majority of sions in the community; and every class of our citizens, we do pledge our sacred honor, orderly citizens, of whatever sect, party, or to defend and sustain each other in carrying nativity, may become members of this body. out the determined action of this commitNo discussion of political, sectional, or sec- tee, at the hazard of our lives and our fortarlan subjects shall be allowed in the rooms _ tunes. of the association.

185. DRED SCOTT v. SANDFORD 19 Howard, 393 1857

Error to the U.S. circuit court for the district of all of the judges giving separate opinions. Of the Missouri. In 1834 Dred Scott, a negro slave, was dissenting opinions, that by Justice Curtis dealt taken by his master from Missouri, a slave state, most elaborately with the question of citizento Illinois, a free state, and hence to Wisconsin ship.

Territory where slavery was forbidden by the This case, probably the most famous in the Missouri Compromise of 1820. Subsequently history of the Court, has been the subject of an Scott was brought back to Missouri, and in extensive literature. See the discussion of the 1846 he began suit to obtain his freedom, on the case and bibliographical notes in Warren, Suground that he had become free when taken into preme Court, Vol. II, ch. xxvi; C. B. Swisher, free territory. The case was eventually brought R. B. Taney; Hodder, “Some Phases of the Dred on appeal to the Supreme Court. Three major Scott Case,” Miss. Valley Hist. Rev. Vol. XVI; questions were involved: whether Scott was a Corwin, “Dred Scott Decision in the Light of citizen of the State of Missouri, so as to give the Contemporary Legal Doctrines,” A. H. R., Vol. Federal courts jurisdiction; whether he had been XVII; Cattarall, “Some Antecedents of the Dred set free by his sojourn in the free state of Illinois; Scott Case,” A. H. R., Vol. XXX; Cohn, “Dred whether he had been set free by his sojourn in Scott Decision in the Light of Later Events,” the free Territory of Wisconsin, e.g., whether the 46 Am. Law Rev. 848. Missouri Compromise was constitutional. The

Court ruled that Scott was not a citizen of the Taney, C. J... . There are two leading United States or of the State of Missouri and questions presented by the record:

therefore not competent to sue in the Federal 1. Had the Circuit Court of the United courts. Having thus refused jurisdiction, the court States jurisdiction to hear and determine the went on to pass on the other questions presented, case between these parties? And,

340 DOCUMENTS OF AMERICAN History 2. If it had jurisdiction, is the judgment the citizen? One of which rights is the privi-

it has given erroneous or not? lege of suing in a court of the United States The plaintiff in error, who was also the in the cases specified in the Constitution.

plaintiff in the court below, was, with his It will be observed, that the plea applies wife and children, held as slaves by the de- to that class of persons only whose ancestors

fendant, in the State of Missouri, and he were negroes of the African race, and imbrought this action in the Circuit Court of ported into this country, and sold and held as the United States for that district, to assert slaves. The only matter in issue before the the title of himself and his family to freedom. court, therefore, is, whether the descendants

The declaration is... that he and the of such slaves, when they shall be emancidefendant are citizens of different States; pated, or who are born of parents who had that is, that he is a citizen of Missouri, and become free before their birth, are citizens of the defendant a citizen of New York. a State, in the sense in which the word citizen The defendant pleaded in abatement to is used in the Constitution of the United the jurisdiction of the court, that the plaintiff States. And this being the only matter in dis-

was not a citizen of the State of Missouri, as pute on the pleadings, the court must be alleged in his declaration, being a negro of understood as speaking in this opinion of that African descent whose ancestors were of pure class only, that is of persons who are the African blood, and who were brought into descendants of Africans who were imported

this country and sold as slaves. into this country and sold as slaves... .

To this plea the plaintiff demurred, and We proceed to examine the case as prethe defendant joined in demurrer. .. . sented by the pleadings. Before we speak of the pleas in bar, it will The words “people of the United States” be proper to dispose of the questions which and “citizens” are synonymous terms, and have arisen on the plea in abatement. mean the same thing. They both describe the That plea denies the right of the plaintiff political body who, according to our repubto sue in a court of the United States, for the _lican institutions, form the sovereignty, and

reasons therein stated. who hold the power and conduct the govern-

If the question raised by it is legally before ment through their representatives. They are us, and the court should be of opinion that what we familiarly call the “sovereign peothe facts stated in it disqualify the plaintiff ple,” and every citizen is one of this people, from becoming a citizen, in the sense in which and a constituent member of this sovereignty. that word is used in the Constitution of the The question before us is, whether the class of United States, then the judgment of the Cir- persons described in the plea in abatement

cuit Court is erroneous, and must be re- compose a portion of this people, and are

versed. ... constituent members of this sovereignty? We The question to be decided is, whether the think they are not, and that they are not facts stated in the plea are sufficient to show included, and were not intended to be inthat the plaintiff is not entitled to sue as a_ cluded, under the word “citizens” in the Con-

citizen in a court of the United States. stitution, and can, therefore, claim none of This is certainly a very serious question, the rights and privileges which that instruand one that now for the first time has been ment provides for and secures to citizens of

brought for decision before this court. But the United States. On the contrary, they it is brought here by those who have a right were at that time considered as a subordinate

to bring it, and it is our duty to meet it and inferior class of beings, who had been

and decide it. subjugated by the dominant race, and whether The question is simply this: Can a negro, emancipated or not, yet remained subject to

whose ancestors were imported into this’ their authority, and had no rights or privicountry, and sold as slaves, become a member __leges but such as those who held the power

of the political community formed and and the government might choose to grant brought into existence by the Constitution of them... . the United States, and as such become en- In discussing this question, we must not titled to all the rights, and privileges, and confound the rights of citizenship which a immunities, guarantied by that instrument to state may confer within its own limits, and

DRED ScoTT V. SANDFORD 341 the rights of citizenship as a member of the full rights of citizenship in every other State Union. It does not by any means follow, be- without their consent. Does the Constitution cause he has all the rights and privileges of of the United States act upon him whenever a citizen of a State, that he must be a citizen he shall be made free under the laws of a

of the United States. He may have all of the State, and raised there to the rank of a rights and privileges of the citizen of a State, citizen, and immediately clothe him with all

and yet not be entitled to the rights and the privileges of a citizen in every other privileges of a citizen in any other State. For, State, and in its own courts?

previous to the adoption of the Constitution The court think the affirmative of these of the United States, every State had the propositions cannot be maintained. And if undoubted right to confer on whomsoever it it cannot, the plaintiff in error could not be a pleased the character of a citizen, and to en- citizen of the State of Missouri, within the dow him with all its rights. But this character, meaning of the Constitution of the United of course, was confined to the boundaries of States, and, consequently, was not entitled to the State, and gave him no rights or privileges sue in its courts. in other States beyond those secured to him It is true, every person, and every class and by the laws of nations and the comity of description of persons, who were at the time States. Nor have the several States surren- of the adoption of the Constitution recognized dered the power of conferring these rights as citizens in the several States, became also and privileges by adopting the Constitution citizens of this new political body; but none of the United States. Each State may still other; it was formed by them, and for them

confer them upon an alien, or any one it and their posterity, but for no one else. And thinks proper, or upon any class or description the personal rights and privileges guarantied of persons; yet he would not be a citizen in to citizens of this new sovereignty were inthe sense in which that word is used in the tended to embrace those only who were then Constitution of the United States, nor entitled members of the several state communities, or to sue as such in one of its courts, nor to the who should afterwards, by birthright or otherprivileges and immunities of a citizen in the wise, become members, according to the proother States. The rights which he would ac- visions of the Constitution and the principles quire would be restricted to the State which on which it was founded... .

gave them... . It becomes necessary, therefore, to deterIt is very clear, therefore, that no State mine who were citizens of the several States can, by any Act or law of its own, passed when the Constitution was adopted. And in

since the adoption of the Constitution, intro- order to do this, we must recur to the governduce a new member into the political com- ments and institutions of the thirteen Colomunity created by the Constitution of the nies, when they separated from Great Britain United States. It cannot make him a member and formed new sovereignties. . . . We must of this community by making him a member inquire who, at that time, were recognized as of its own. And for the same reason it cannot _ the people or citizens of a State... .

introduce any person, or description of per- In the opinion of the court, the legislation sons, who were hot intended to be embraced and histories of the times, and the language in this new political family, which the Con- used in the Declaration of Independence, stitution brought into existence, but were in- show, that neither the class of persons who

tended to be excluded from it. had been imported as slaves, nor their deThe question then arises, whether the pro- scendants, whether they had become free or visions of the Constitution, in relation to the not, were then acknowledged as a part of the personal rights and privileges to which the people, nor intended to be included in the citizen of a State should be entitled, embraced —_ general words used in that memorable instru-

the negro African race, at that time in this ment.

ported, who had then or should afterwards be of publgs vomice gis ay £0 realize the state

made free in any State; and to put it in the , fo ‘e ‘which, - revation ° tha t unfortupower of a single State to make him a citizen - htened ich Prevaiied in the civilized and of the United States, and endue him with the of tee De portions of the world at the time

) of the Declaration of Independence, and when

342 DoCUMENTS OF AMERICAN HISTORY the Constitution of the United States was posterity the blessings of liberty, or any of

framed and adopted... . the personal rights so carefully provided for

They had for more than a century before the citizen. .. . been regarded as beings of an inferior order; Indeed, when we look to the condition of and altogether unfit to associate with the white this race in the several States at the time, it race, either in social or political relations; and 18 impossible to believe that these rights and

so far inferior that they had no rights which Privileges were intended to be extended to the white man was bound to respect; and that them... . the negro might justly and lawfully be reduced The legislation of the States therefore to slavery for his benefit... . This opinion Shows, in a manner not to be mistaken, the was at that time fixed and universal in the i™ferior and subject condition of that race civilized portion of the white race. It was re- at the time the Constitution was adopted, garded as an axiom in morals as well as in 2nd long afterwards, throughout the thirteen politics, which no one thought of disputing, States by which that instrument was framed; or supposed to be open to dispute; and men 4nd it is hardly consistent with the respect in every grade and position in society daily and due to these States, to suppose that they habitually acted upon it in their private pur- regarded at that time, as fellow-citizens and suits, as well as in matters of public concern, members of the sovereignty, a class of beings without doubting for a moment the correct- whom they had thus stigmatized; . . . More

ness of this opinion. . . . especially, it cannot be believed that the large The legislation of the different Colonies slave-holding States regarded them as in-

furnishes positive and undisputable proof of cluded in the word “citizens,” or would have

this fact. ... consented to a constitution which might comThe language of the Declaration of Inde- pel them to receive them that character

pendence is equally conclusive... . from another State. For if .hey were so reThis state of public opinion had undergone ceived, and entitled to the privileges and im- , no change when the Constitution was adopted, ™unities of citizens, it would exempt them as is equally evident from its provisions and from the operation of the special laws and

language... . from the police regulations which they considBut there are two clauses in the Consti- ered to be necessary for their own safety... . tution which point directly and specifically to And all of this would be done in the face the negro race as a separate class of persons, of the subject race of the same color, both

and show clearly that they were not regarded _‘free and slaves, inevitably producing discon-

as a portion of the people or citizens of the tent and insubordination among them, and

Government then formed. endangering the peace and safety of the One of these clauses reserves to each of the State... . thirteen States the right to import slaves un- But it is said that a person may be a citizen, til the year 1808, if he thinks it proper. And and entitled to that character, although he the importation which it thus sanctions was does not possess all the rights which may

unquestionably of persons of the race of belong to other citizens; as, for example, the which we are speaking, as the traffic in slaves _ right to vote, or to hold particular offices; and in the United States had always been confined that yet, when he goes into another State, he

to them. And by the other provision the is entitled to be recognized there as a citizen, States pledge themselves to each other to although the State may measure his rights by maintain the right of property of the master, the rights which it allows to persons of a by delivering up to him any slave who may _ like character or class, resident in the State, have escaped from his service, and be fu «i and refuse to him the full rights of citizenwithin their respective territories. ... And _— ship. these two provisions show, conclusively, that This argument overlooks the language of neither the description of persons therein re- the provision in the Constitution of which we ferred to, nor their descendants, were em- are speaking. braced in any of the other provisions of the Undoubtedly, a person may be a citizen, Constitution: for certainly these two clauses that is, a member of the community who were not intended to confer on them or their form the sovereignty, although he exercises

DRED SCOTT V. SANDFORD 343 no share of the political power, and is inca- the facts relied on by the plaintiff entitled pacitated from holding particular offices... . him to his freedom. . . . So, too, a person may be entitled to vote In considering this part of the controversy, by the law of the State, who is not a citizen two questions arise: Ist. Was he, together even of the State itself. And in some of the with his family, free in Missouri by reason States of the Union foreigners not naturalized of the stay in the territory of the United States are allowed to vote. And the State may give hereinbefore mentioned? And 2d, If they were the right to free negroes and mulattoes, but not, is Scott himself free by reason of his rethat does not make them citizens of the State, moval to Rock Island, in the State of Illinois, and still less of the United States. And the as stated in the above admissions? provision in the Constitution giving privileges We proceed to examine the first question. and immunities in other States, does not ap- The Act of Congress, upon which the plain-

ply to them. tiff relies, declares that slavery and involunNeither does it apply to a person who, be- tary servitude, except as a punishment for ing the citizen of a State, migrates to another crime, shall be forever prohibited in all that State. For then he becomes subject to the part of the territory ceded by France, under laws of the State in which he lives, and he the name of Louisiana, which lies north of is no longer a citizen of the State from which _ thirty-six degrees thirty minutes north lati-

| he removed. And the State in which he resides tude, and not included within the limits of may then, unquestionably, determine his Missouri. And the difficulty which meets us status or condition, and place him among the at the threshold of this part of the inquiry 1s, class of persons who are not recognized as whether Congress was authorized to pass this citizens, but belong to an inferior and subject law under any of the powers granted to it

race: and may deny him the privileges and by the Constitution; for if the authority 1s

immunities enjoyed by its citizens... . not given by that instrument, it is the duty _.. But if he ranks as a citizen of the of this court to declare it void and inoperaState to which he belongs, within the mean- __ tive, and incapable of conferring freedom upon ing of the Constitution of the United States, any one who is held as a slave under the laws

then, whenever he goes into another State, of any one of the States. the Constitution clothes him, as to the rights The counsel for the plaintiff has laid much of person, with all the privileges and im- stress upon that article in the Constitution munities which belong to citizens of the State. | which confers on Congress the power “to disAnd if persons of the African race are citizens pose of and make all needful rules and reg-

of a state, and of the United States, they ulations respecting the territory or other propwould be entitled to all of these privileges erty belonging to the United States;” but, in and immunities in every State, and the State the judgment of the court, that provision has could not restrict them; for they would hold no bearing on the present controversy, and these privileges and immunities, under the the power there given, whatever it may be, paramount authority of the Federal Govern- is confined, and was intended to be confined, ment, and its courts would be bound to main- _to the territory which at that time belonged tain and enforce them, the Constitution and to, or was claimed by, the United States, and laws of the State to the contrary notwith- was within their boundaries as settled by the

standing. ... treaty with Great Britain, and can have no And upon a full and careful consideration influence upon a territory afterwards acquired of the subject, the court is of opinion that, from a foreign Government. It was a special upon the facts stated in the plea in abate- provision for a known and particular territory, ment, Dred Scott was not a citizen of Mis- and to meet a present emergency, and nothing souri within the meaning of the Constitution more.... of the United States, and not entitled as such If this clause is construed to extend to territo sue in its courts; and, consequently, that tory acquired by the present Government the Circuit Court had no jurisdiction of the from a foreign nation, outside of the limits case, and that the judgment on the plea in of any charter from the British Government

abatement is erroneous... . to a colony, it would be difficult to say, why it We proceed, therefore, to inquire whether was deemed necessary to give the Govern-

344 DocUMENTS OF AMERICAN HIsToORY ment the power to sell any vacant lands be- out; and the Federal Government can exercise longing to the sovereignty which might be no power over his person or property, beyond

found within it; and if this was necessary, what that instrument confers, nor lawfully why the grant of this power should precede deny any right which it has reserved... . the power to legislate over it and establish a The rights of private property have been Government there; and still more difficult to guarded with equal care. Thus the rights of say, why it was deemed necessary so specially property are united with the rights of person,

and particularly to grant the power to make and placed on the same ground by the fifth needful rules and regulations in relation to amendment to the Constitution. .. . An Act any personal or movable property it might of Congress which deprives a person of the acquire there. For the words, other property United States of his liberty or property necessarily, by every known rule of interpre- merely because he came himself or brought tation, must mean property of a different de- his property into a particular Territory of the scription from territory or land. And the diff- United States, and who had committed no culty would perhaps be insurmountable in offense against the laws, could hardly be endeavoring to account for the last member of dignified with the name of due process of the sentence, which provides that “nothing in law... . this Constitution shall be so construed as to And this prohibition is not confined to the prejudice any claims of the United States or States, but the words are general, and extend any particular State,” or to say how any par- to the whole territory over which the Conticular State could have claims in or to a __ stitution gives it power to legislate, including territory ceded by a foreign Government, or those portions of it remaining under territorial to account for associating this provision with government, as well as that covered by States.

the preceding provisions of the clause, with It is a total absence of power everywhere which it would appear to have no connec- within the dominion of the United States, and

tion... . places the citizens of a territory, so far as But the power of Congress over the person _ these rights are concerned, on the same foot-

or property of a citizen can never be a mere’ ing with citizens of the States, and guards discretionary power under our Constitution them as firmly and plainly against any inand form of Government. The powers of the roads which the general government might Government and the rights and privileges of attempt, under the plea of implied or incithe citizen are regulated and plainly defined dental powers. And if Congress itself canby the Constitution itself. And when the Terri- not do this—if it is beyond the powers tory becomes a part of the United States, conferred on the Federal Government—it will the Federal Government enters into posses- be admitted, we presume, that it could not sion in the character impressed upon it by authorize a territorial government to exerthose who created it. It enters upon it with cise them. It could confer no power on any its powers over the citizen strictly defined, local government, established by its authorand limited by the Constitution, from which _ ity, to violate the provisions of the Constitu-

it derives its own existence, and by virtue _ tion. of which alone it continues to exist and act It seems, however, to be supposed, that as a Government and sovereignty. It has no there is a difference between property in a power of any kind beyond it; and it cannot, slave and other property, and that different when it enters a Territory of the United States, rules may be applied to it in expounding the put off its character, and assume discretionary Constitution of the United States. And the or despotic powers which the Constitution has laws and usages of nations, and the writings denied to it. It cannot create for itself a new of eminent jurists upon the relation of master character separated from the citizens of the and slave and their mutual rights and duties,

United States, and the duties it owes them and the powers which governments may exunder the provisions of the Constitution. The ercise over it, have been dwelt upon in the Territory being a part of the United States, argument. the Government and the citizen both enter But . . . if the Constitution recognizes the

ét under the authority of the Constitution, right of property of the master in a slave, with their respective rights defined and marked and makes no distinction between that de-

LINcoLN’s House DIVIDED SPEECH 345 scription of property and other property of the court that the Act of Congress which owned by a citizen, no tribunal, acting under prohibited a citizen from holding and owning

the authority of the United States, whether property of this kind in the territory of the it be legislative, executive, or judicial, has a United States north of the line therein menright to draw such a distinction, or deny to tioned, is not warranted by the Constitution, it the benefit of the provisions and guarantees and is therefore void; and that neither Dred which have been provided for the protection Scott himself, nor any of his family, were of private property against the encroach- made free by being carried into this territory;

ments of the Government. even if they had been carried there by the

Now ... the right of property in a slave owner, with the intention of becoming a peris distinctly and expressly affirmed in the manent resident... . Constitution. The right to traffic in it, like an Upon the whole, therefore, it is the judgordinary article of merchandise and property, ment of this court, that it appears by the was guaranteed to the citizens of the United record before us that the plaintiff in error States, in every State that might desire it, is not a citizen of Missouri, in the sense in for twenty years. And the Government in which that word is used in the Constitution; express terms is pledged to protect it in all and that the Circuit Court of the United future time, if the slave escapes from his States, for that reason, had no jurisdiction in owner... . And no word can be found in the case, and could give no judgment in it. the Constitution which gives Congress a Its judgment for the defendant must, congreater power over slave property, or which sequently, be reversed, and a mandate issued entitles property of that kind to less pro- directing the suit to be dismissed for want of tection than property of any other descrip- jurisdiction. tion. The only power conferred is the power Wayne, J., NELSON, J., Grier, J., DANIEL, J., coupled with the duty of guarding and pro- CAMPBELL, J., AND Catron, J., filed separate

tecting the owner in his rights. concurring opinions. MCLEAN, J. and CurUpon these considerations, it is the opinion 1s, J. dissented.

186. LINCOLN’S HOUSE DIVIDED SPEECH Springfield, Illinois, June 17, 1858 (Writings of Abraham Lincoln, Constitutional ed., Vol. III, p. 1 ff.) This speech was delivered at the close of the itself cannot stand.” I believe this governRepublican State Convention, in the Hall of the ment cannot endure permanently half slave House of Representatives. Though the “house di- and half free. I do not expect the Union to vided” phrase had been used frequently before, be dissolved; I do not expect the house to it was this speech of Lincoln’s that gave currency fall: but I d . 7 . and familiarity to the phrase and the idea. For , » Dut . o expect it will cease to be dian analysis of the speech and a description of vided. It will become all one thing, or all the the setting, see A. Beveridge, Abraham Lin- other. Either the opponents of slavery will

coln, Vol. Il, p. 575 ff. arres. the further spread of it, and place it

where the public mind shall rest in the belief

Mr. PRESIDENT AND GENTLEMEN OF THE _ that it is in the course of ultimate extinction,

CONVENTION: If we could first know where or its advocates will push it forward till it we are, and whither we are tending, we could — shall become alike lawful in all the States,

better judge what to do, and how to do it. old as well as new, North as well as South. We are now far into the fifth year since a Have we no tendency to the latter condipolicy was initiated with the avowed object tion? and confident promise of putting an end to Let any one who doubts, carefully conslavery agitation. Under the operation of that template that now almost complete legal compolicy, that agitation has not only not ceased, bination—piece of machinery, so to speak— but has constantly augmented. In my opinion, compounded of the Nebraska doctrine and it will not cease until a crisis shall have been the Dred Scott decision. Let him consider, reached and passed. “‘A house divided against not only what work the machinery is adapted

346 DocuUMENTS OF AMERICAN History to do, and how well adapted, but also let occasion of the Silliman letter to indorse and him study the history of its construction, and strongly construe that decision, and to extrace, if he can, or rather fail, if he can, to press his astonishment that any different view trace the evidences of design, and concert of had ever been entertained! action, among its chief architects, from the At length a squabble springs up between

beginning. the President and the author of the Nebraska The new year of 1854 found slavery ex- Bill, on the mere question of fact, whether cluded from more than half the States by the Lecom»ton Constitution was or was not State Constitutions, and from most of the in any just sense made by the people of National territory by Congressional prohibi- Kansas; and in that quarrel the latter detion. Four days later, commenced the strug- clares that all he wants is a fair vote for the gle which ended in repealing that Congres- people, and that he cares not whether slavery sional prohibition. This opened all the be voted down or voted up. I do not under-

National territory to slavery, and was the stand his declaration, that he cares not

first point gained... . whether slavery be voted down or voted up,

While the Nebraska Bill was passing to be intended by him other than as an apt

through Congress, a Jaw case, involving the definition of the policy he would impress question of a negro’s freedom, by reason of upon the public mind. . . . That principle is his owner having voluntarily taken him first the only shred left of his original Nebraska

into a free State, and then into a territory doctrine. Under the Dred Scott decision covered by the Congressional prohibition, and ‘“‘squatter sovereignty” squatted out of exist-

held him as a slave for a long time in each, ence, tumbled down like temporary scaffoldwas passing through the United States Cir- ing; like the mould at the foundry, served cuit Court for the District of Missouri; and through one blast, and fell back into loose both Nebraska Bill and lawsuit were brought sand; helped to carry an election, and then to a decision in the same month of May, was kicked to the winds. His late joint strug1854. The negro’s name was “Dred Scott,” gle with the Republicans, against the Lecomp-

which name now designates the decision fi- ton Constitution, involves nothing of the nally made in the case. Before the then next _ original Nebraska doctrine. That struggle was

Presidential election, the law case came to, made on a point—the right of a people to and was argued in, the Supreme Court of the make their own constitution—upon which he

United States; but the decision of it was and the Republicans have never differed. deferred until after the election. Still, before The several points of the Dred Scott decithe election, Senator Trumbull, on the floor sion, in connection with Senator Douglas’s of the Senate, requested the leading advocate “care not” policy, constitute the piece of ma-

of the Nebraska Bill to state his opinion chinery, in its present state of advancement. whether the people of a Territory can con- This was the third point gained. The working

stitutionally exclude slavery from their points of that machinery are: limits; and the latter answers: “That is a Firstly, That no negro slave, imported as question for the Supreme Court.” such from Africa, and no descendant of such The election came. Mr. Buchanan was - slave, can ever be a citizen of any State, in elected, and the indorsement, such as it was, __ the sense of that term as used in the Consti-

secured. That was the second point gained. tution of the United States. This point is .. . The Presidential inauguration came, and made in order to deprive the negro, in every still no decision of the court; but the incom- possible event, of the benefit of that proviing President, in his inaugural address, fer- sion of the United States Constitution which vently exhorted the people to abide by the declares that ‘‘The citizens of each State shall forthcoming decision, whatever it might be. be entitled to all privileges and immunities

Then, in a few days, came the decision. of citizens in the several States.” The reputed author of the Nebraska Bill Secondly, That, “subject to the Constitufinds an early occasion to make a speech at’ tion of the United States,” neither Congress this capital indorsing the Dred Scott decision, nor a Territorial Legislature can exclude and vehemently denouncing all opposition to slavery from any United States Territory. it. The new President, too, seizes the early This point is made in order that individual

THE LINCOLN-—-DOUGLAS DEBATES 347 men may fill up the Territories with slaves, out then would have damaged the “perfectly without danger of losing them as property, free’? argument upon which the election was and thus to enhance the chances of perma-_ to be carried. Why the outgoing President’s nency to the institution through all the future. _felicitation on the indorsement? Why the deThirdly, That whether the holding a negro lay of a reargument? Why the incoming Presin actual slavery in a free State makes him ident’s advance exhortation in favor of the free, as against the holder, the United States decision? These things look like the cautious courts will not decide, but will leave to be patting and petting of a spirited horse predecided by the courts of any slave State the paratory to mounting him, when it is dreaded negro may be forced into by the master. This that he may give the rider a fall. And why the point is made, not to be pressed immediately; hasty after-indorsement of the decision by

but, if acquiesced in for a while, and ap- the President and others? parently indorsed by the people at an election, We cannot absolutely know that all these then to sustain the logical conclusion that exact adaptations are the result of preconcert. what Dred Scott’s master might lawfully do But when we see a lot of framed timbers, with Dred Scott, in the free State of Illinois, different portions of which we know have every other master may lawfully do with any been gotten out at different times and places other one, or one thousand slaves, in Illinois, and by different workmen,—Stephen, Frank-

Or in any other free State. lin, Roger, and James, for instance,—and

Auxiliary to all this, and working hand in when we see these timbers joined together, hand with it, the Nebraska doctrine, or what and see they exactly make the frame of a is left of it, is to educate and mould public house or a mill, all the tenons and mortises opinion, at least Northern public opinion, — exactly fitting, and all the lengths and propornot to care whether slavery is voted down or _ tions of the different pieces exactly adapted to voted up. This shows exactly where we now _ their respective places, and not a piece too are; and partially, also, whither we are tend- many or too few,—not omitting even scaffold-

ing... . ing,—or, if a single piece be lacking, we see

Why was the amendment, expressly declar- the place in the frame exactly fitted and ing the right of the people, voted down? prepared yet to bring such piece in,—in such Plainly enough now,—the adoption of it a case, we find it impossible not to believe would have spoiled the niche for the Dred that Stephen and Franklin and Roger and Scott decision. Why was the court decision James all understood one another from the held up? Why even a Senator’s individual beginning, and all worked upon a common opinion withheld, till after the Presidential plan or draft drawn up before the first blow election? Plainly enough now,—the speaking was struck. .. .

187. THE LINCOLN-DOUGLAS DEBATES 1858

(The Writings of Abraham Lincoln, Constitutional ed., Vols. III-IV) Lincoln had been a candidate for the United Freeport, where Lincoln forced Douglas to anStates Senate in 1854-55; on that memorable nounce the so-called Freeport Doctrine. In the occasion he had thrown his vote to Lyman election Lincoln carried districts containing a Trumbull and thus secured the election of Trum- larger population than those which Douglas carbull over Douglas. In June, 1858 Lincoln was ried, but Douglas received the majority of the chosen as the Republican candidate for the Sena- _ votes of the legislature. The Debates dramatized torship (Doc. No. 186), and on July 24 he chal- Lincoln before the country and paved the way lenged his opponent, Douglas, to a series of Joint for his candidacy in 1860, while they distinctly debates. The challenge was accepted, and seven embarrassed Douglas in the south. Extracts from Joint debates arranged for. The debates were the second, third and seventh debates are given held at Ottawa, Freeport, Jonesboro, Charleston, below. The Debates have been reprinted in nu-

Galesburg, Quincy, and Alton, Illinois, from merous editions. See, A. Beveridge, Abraham August 21 to October 15. Perhaps the most im- Lincoln, Vol. I, chs. ix, x; C. Sandburg, Abraham portant of the debates was the second, held at Lincoln, The Prairie Years; A. J ohnson, Stephen

348 DocUMENTS OF AMERICAN History A. Douglas; G. F. Milton, The Eve of Conflict, versa] application, to require a Territory to ch. xx; A. C. Cole, The Era of the Civil War, contain the requisite population for a member

Centennial History of Mlinois, Vol. IV. of Congress before it is admitted as a State into the Union. I made that proposition in 1. THE SECOND JoInT DEBATE the Senate in 1856, and I renewed it during

Freeport, August 27, 1858 the last session, in a bill providing that no

LINCOLN’S OPENING SPEECH AND DovucLAs’s Territory of the United States should form a

REPLY constitution and apply for admission until it

; , had the requisite population. On another oc-

Mr. Lincoln's Speech casion I proposed that neither Kansas nor

... I now proceed to propound to the any other Territory should be admitted until Judge the interrogatories, so far as I have it had the requisite population. Congress did framed them. I will bring forward a new in- not adopt any of my propositions containing stallment when I get them ready. I will bring this general rule, but did make an exception them forward now only reaching to number’ of Kansas. I will stand by that exception.

four. Either Kansas must come in as a free State, The first one is: with whatever population she may have, or

Question 1—If the people of Kansas shall, the rule must be applied to all the other Terby means entirely unobjectionable in all other _ritories alike. I therefore answer at once, respects, adopt a State constitution, and ask that, it having been decided that Kansas has admission into the Union under it, before people enough for a slave State, I hold that they have the requisite number of inhabitants she has enough for a free State. I hope Mr. according to the English bill—some ninety- Lincoln is satisfied with my answer; ...

three thousand,—will you vote to admit The next question propounded to me by

them? Mr. Lincoln is, Can the people of a Territory

Q. 2. Can the people of a United States in any lawful way, against the wishes of any Territory, in any lawful way, against the wish citizen of the United States, exclude slavery

of any citizen of the United States, exclude from their limits prior to the formation of slavery from its limits prior to the formation a State constitution? I answer emphatically,

of a State constitution? as Mr. Lincoln has heard me answer a hun-

Q. 3. If the Supreme Court of the United dred times from every stump in Illinois, that States shall decide that States cannot exclude in my opinion the people of a T erritory can, slavery from their limits, are you in favor of by lawful means, exclude slavery from their acquiescing in, adopting, and following such limits prior to the formation of a State con-

decision as a rule of political action? stitution. Mr. Lincoln knew that I had

Q. 4. Are you in favor of acquiring addi- answered that question over and over again. tional territory, in disregard of how such ac- He heard me argue the Nebraska Bill on that quisition may affect the nation on the slavery principle all over the State in 1854, in 1855,

question? .. . and in 1856, and he has no excuse for pre, tending to be in doubt as to my position on

Senator Douglas’s Reply that question. It matters not what way the

First, he desires to know if the people of Supreme Court may hereafter decide as to Kansas shall form a constitution by means _ the abstract question whether slavery may or entirely proper and unobjectionable, and ask may not go into a Territory under the Conadmission into the Union as a State, before stitution, the people have the lawful means to they have the requisite population fora mem- introduce it or exclude it as they please, for ber of Congress, whether I will vote for that the reason that slavery cannot exist a day or —

admission. ....I will answer his ques- an hour anywhere, unless it is supported by tion. In reference to Kansas, it is my opinion local police regulations. Those police regula-

that as she has population enough to consti- tions can only be established by the local tute a slave State, she has people enough for legislature; and if the people are opposed to a free State. I will not make Kansas an _ slavery, they will elect representatives to that exceptional case to the other States of the body who will by unfriendly legislation efUnion. I hold it to be a sound rule, of uni- fectually prevent the introduction of it into

THE LINCOLN-DOUGLAS DEBATES 349 their midst. If, on the contrary, they are for nation. With our natural increase, growing it, their legislation will favor its extension. with a rapidity unknown in any part of the Hence, no matter what the decision of the globe, with the tide of emigration that is fleeSupreme Court may be on that abstract ques- ing from despotism in the Old World to seek tion, still the right of the people to make a refuge in our own, there is a constant torrent

slave Territory or a free Territory is perfect pouring into this country that requires

and complete under the Nebraska Bill. I hope more land, more territory upon which to setMr. Lincoln deems my answer satisfactory tle; and just as fast as our interests and our

on that point... . destiny require additional territory in the _.. The third question which Mr. Lin- North, in the South, or on the islands of the

coln presented is, if the Supreme Court of the ocean, I am for it; and when we acquire it,

United States shall decide that a State of will leave the people, according to the Nethis Union cannot exclude slavery from its braska Bill, free to do as they please on the own limits, will I submit to it? .. . He casts subject of slavery and every other quesan imputation upon the Supreme Court of the tion.... United States, by supposing that they would

violate the Constitution of the United States. 2. Tue Tuirp Joint DEBATE I tell him that such a thing is not possible. It Jonesboro, September 15, 1858

wouldon be an of moral treason thatdescend no Lincoln’s to Douglas man theactbench could ever to. Reply COMES y8 Mr. Lincoln himself would never in his parti- .. . At Freeport I propounded four intersan feelings so far forget what was right as rogatories to him, claiming it as a right that

to be guilty of such an act. he should answer as many interrogatories for The fourth question of Mr. Lincoln is, meas I did for him, and I would reserve myAre you in favor of acquiring additional ter- self for a future installment when I got them ritory, in disregard as to how such acquisition ready. The Judge, in answering me upon that may affect the Union on the slavery question? occasion, put in what I suppose he intends as This question is very ingeniously and cun- answers to all four of my interrogatories. The

ningly put. first one of these interrogatories I have before The Black Republican creed lays it down me, and it is in these words: expressly that under no circumstances shall “Question 1. If the people of Kansas shall,

we acquire any more territory, unless slavery by means entirely unobjectionable in all other

is first prohibited in the country. ...I respects, adopt a State constitution, and ask answer that whenever it becomes necessary, admission into the Union under it, before in our growth and progress, to acquire more _ they have the requisite number of inhabitants territory, that I am in favor of it, without according to the English bill,”—-some ninety-

reference to the question of slavery; and three thousand,—‘‘will you vote to admit when we have acquired it, I will leave the them?” people free to do as they please, either to As I read the Judge’s answer in the newsmake it slave or free territory, as they prefer. paper, and as I remember it as pronounced

It is idle to tell me or you that we have at the time, he does not give any answer territory enough... . I tell you, increase, which is equivalent to yes or no,—TI will or and multiply, and expand, is the law of this I won’t. He answers at very considerable nation’s existence. You cannot limit this great length, rather quarrelling with me for asking

Republic by mere boundary lines, saying, the question, and insisting that Judge Trum“Thus far shalt thou go, and no farther.” bull had done something that I ought to say Any one of you gentlemen might as well say something about, and finally getting out such

to a son twelve years old that he is big statements as induce me to infer that he enough, and must not grow any larger; and means to be understood he will, in that supin order to prevent his growth, put a hoop _ posed case, vote for the admission of Kansas. around him to keep him to his present size. I only bring this forward now for the purpose What would be the result? Either the hoop of saying that if he chooses to put a different must burst and be rent asunder, or the child construction upon his answer, he may do it.

must die. So it would be with this great But if he does not, I shall from this time

350 DocCUMENTS OF AMERICAN HIsTORY forward assume that he will vote for the exclude slavery from the Territory, unless in admission of Kansas in disregard of the violation of that decision? That is the diffiEnglish bill. He has the right to remove any culty... . misunderstanding I may have. I only men- I held that the proposition that slavery tion it now, that I may hereafter assume this cannot enter a new country without police to be the true construction of his answer, 1f regulations is historically false. It is not true

he does not now choose to correct me. at all. I hold that the history of this country The second interrogatory that I pro- shows that the institution of slavery was

pounded to him was this: Originally planted upon this continent with“Question 2. Can the people of a United out these “police regulations” which the States Territory, in any lawful way, against Judge now thinks necessary for the actual the wish of any citizen of the United States, establishment of it. Not only so, but is there exclude slavery from its limits prior to the not another fact: how came this Dred Scott

formation of a State Constitution?” decision to be made? It was made upon the

To this Judge Douglas answered that they case of a negro being taken and actually held can lawfully exclude slavery from the Terri- in slavery in Minnesota Territory, claiming tory prior to the formation of a constitution. his freedom because the Act of Congress proHe goes on to tell us how it can be done. As_ hibited his being so held there. Will the I understand him, he holds that it can be Judge pretend that Dred Scott was not held done by the Territorial Legislature refusing ‘there without police regulations? There is at to make any enactments for the protection least one matter of record as to his having of slavery in the Territory, and especially by been held in slavery in the Territory, not adopting unfriendly legislation to it. For the only without police regulations, but in the sake of clearness, I state it again: that they teeth of Congressional legislation supposed to can exclude slavery from the Territory, Ist, be valid at the time. This shows that there by withholding what he assumes to be an __ is vigor enough in slavery to plant itself in a indispensable assistance to it in the way of new country even against unfriendly legislalegislation; and, 2d, by unfriendly legislation. tion. It takes not only law, but the enforce-

If I rightly understand him, I wish to ask ment of law to keep it out. That is the your attention for a while to his position. history of this country upon the subject. In the first place, the Supreme Court of I wish to ask one other question. It being the United States has decided that any Con- understood that the Constitution of the gressional prohibition of slavery in the Ter- United States guarantees property in slaves ritories is unconstitutional; that they have in the Territories, if there is any infringereached this proposition as a conclusion from ment of the right of that property, would their former proposition, that the Constitu- not the United States courts, organized for tion of the United States expressly recognizes the government of the Territory, apply such property in slaves, and from that other Con- remedy as might be necessary in that case? stitutional provision, that no person shall be It is a maxim held by the courts that there

deprived of property without due process of is no wrong without its remedy; and the law. Hence they reach the conclusion that as courts have a remedy for whatever is acthe Constitution of the United States ex- knowledged and treated as a wrong. pressly recognizes property in slaves, and Again: I will ask you, my friends, if you prohibits any person from being deprived of were elected members of the Legislature, property without due process of law, to what would be the first thing you would have pass an Act of Congress by which aman who to do before entering upon your duties? owned a slave on one side of a line would be Swear to support the Constitution of the deprived of him if he took him on the other United States. Suppose you believe, as Judge side, is depriving him of that property with- Douglas does, that the Constitution of the out due process of law. That I understand to United States guarantees to your neighbor the be the decision of the Supreme Court. I un-_ right to hold slaves in that Territory; that derstand also that Judge Douglas adheres they are his property: how can you clear your most firmly to that decision; and the diffi- oaths unless you give him such legislation as culty is, how is it possible for any power to is necessary to enable him to enjoy that

Tue LINCOLN-DOUGLAS DEBATES 351 property? What do you understand by sup- thereof, escaping into another, shall in conseporting the Constitution of a State, or of the quence of any law or regulation therein be United States? Is it not to give such consti- discharged from such service or labor, but

tutional helps to the rights established by shall be delivered up on claim of the party that Constitution as may be practically to whom such service or labor may be due,”’ needed? Can you, if you swear to support the is powerless without specific legislation to Constitution, and believe that the Constitu- enforce it. Now, on what ground would a tion establishes a right, clear your oath, with- | member of Congress, who is opposed to slavout giving it support? Do you support the ery in the abstract, vote for a Fugitive law, Constitution if, knowing or believing there as I would deem it my duty to do? Because

is a right established under it which needs there is a constitutional right which needs specific legislation, you withhold that legis- legislation to enforce it. And although it 1s lation? Do you not violate and disregard your _ distasteful to me, I have sworn to support the

oath? I can conceive of nothing plainer in Constitution; and having so sworn, I cannot the world. There can be nothing in the words conceive that I do support it if I withhold “support the Constitution,” if you may run from that right any necessary legislation to counter to it by refusing support to any make it practical. And if that is true in regard right established under the Constitution. And to a Fugitive Slave law, is the right to have fuwhat I say here will hold with still more force _ gitive slaves reclaimed any better fixed in the

against the Judge’s doctrine of “unfriendly Constitution than the right to hold slaves in legislation.”” How could you, having sworn tothe Territories? For this decision is a just

support the Constitution, and believing it exposition of the Constitution, as Judge guaranteed the right to hold slaves in the Douglas thinks. Is the one right any better Territories, assist in legislation intended to than the other? Is there any man who, while defeat that right? That would be violating a member of Congress, would give support your own view of the Constitution. Not only to the one any more than the other? If I so, but if you were to do so, how long would wished to refuse to give legislative support to it take the courts to hold your votes uncon- _ slave property in the Territories, ifa member

stitutional and void? Not a moment. of Congress, I could not do it, holding the Lastly, I would ask: Is not Congress itself view that the Constitution establishes that under obligation to give legislative support to right. If I did it at all, it would be because I any right that is established under the United deny that this decision properly construes States Constitution? I repeat the question: the Constitution. But if I acknowledge, with Is not Congress itself bound to give legisla- Judge Douglas, that this decision properly tive support to any right that is established in _construes the Constitution, I cannot conceive the United States Constitution? A member of that I would be less than a perjured man if Congress swears to support the Constitution I should refuse in Congress to give such pro-

of the United States: and if he sees a right tection to that property as in its nature it established by that Constitution which needs needed.

specific legislative protection, can he clear |

his oath without giving that protection? Let 3. THE SEVENTH JOINT DEBATE

me ask you why many of us who are opposed. Alton, October 15, 1858 to slavery upon principle give our acquies- §pouGLAs’s SPEECH, LINCOLN’S REPLY, AND

cence to a Fugitive Slave law? Why do we DOUGLAS’S REJOINDER

hold ourselves under obligations to pass such ;

a law, and abide by it when it is passed? Be- Senator Douglas's Speech cause the Constitution makes provision that LADIES AND GENTLEMEN: It is now nearly

the owners of slaves shall have the right to four months since the canvass between Mr. reclaim them. It gives the right to reclaim Lincoln and myself commenced. On the 16th slaves; and that right is, as Judge Douglas of June the Republican Convention assemsays, a barren right, unless there is legisla- bled at Springfield and nominated Mr. Lin-

tion that will enforce it. coln as their candidate for the United States

The mere declaration, ‘““No person held to Senate, and he, on that occasion, delivered a service or labor in one State under the laws speech in which he laid down what he under-

352 DocuMENTS OF AMERICAN History stood to be the Republican creed, and the not include the negro, others might take the platform on which he proposed to stand dur- position that it did not include other men. ing the contest. The principal points in that He said that all these distinctions between speech of Mr. Lincoln’s were: First, that this this man and that man, this race and the government could not endure permanently other race, must be discarded, and we must divided into free and slave States, as our all stand by the Declaration of Independence, fathers made it; that they must all become declaring that all men were created equal.

free or all become slave; all become one The issue thus being made up between thing, or all become the other,—otherwise Mr. Lincoln and myself on three points, we this Union could not continue to exist. I give went before the people of the State. Duryou his opinions almost in the identical lan- ing the following seven weeks, between the guage he used. His second proposition was Chicago speeches and our first meeting at a crusade against the Supreme Court of the Ottawa, he and I addressed large assemblages United States because of the Dred Scott de- of the people in many of the central councision, urging as an especial reason for his — ties. In my speeches I confined myself closely

Opposition to that decision that it deprived to those three positions which he had taken, the negroes, of the rights and benefits of that controverting his proposition that this Union

clause in the Constitution of the United could not exist as our fathers made it, States which guarantees to the citizens of divided into free and slave States, controverteach State all the rights, privileges, and im- ing his proposition of a crusade against the munities of the citizens of the several States. Supreme Court because of the Dred Scott On the 10th of July I returned home, and decision, and controverting his proposition delivered a speech to the people of Chicago, that the Declaration of Independence _inin which I announced it to be my purpose’ cluded and meant the negroes as well as the to appeal to the people of Illinois to sustain white men, when it declared all men to be the course I had pursued in Congress. In that created equal... . I took up Mr. Lincoln’s speech I joined issue with Mr. Lincoln on three propositions in my several speeches, the points which he had presented. Thus there analyzed them, and pointed out what I bewas an issue clear and distinct made up be- lieved to be the radical errors contained in

tween us on these two propositions laid them. First, in regard to his doctrine that down in the speech of Mr. Lincoln at Spring- this government was in violation of the law

field, and controverted by me in my reply of God, which says that a house divided to him at Chicago. On the next day, the against itself cannot stand, I repudiated it 11th of July, Mr. Lincoln replied to me at as a slander upon the immortal framers of Chicago, explaining at some length and re- our Constitution. I then said, I have often affirming the positions which he had taken’ repeated, and now again assert, that in my in his Springfield speech. In that Chicago opinion our government can endure forever,

speech he even went further than he had divided into free and slave States as our before, and uttered sentiments in regard to fathers made it,—each State having the right the negro being on an equality with the white to prohibit, abolish, or sustain slavery, just man. He adopted in support of this position as it pleases. This government was made — the argument which Lovejoy and Codding upon the great basis of the sovereignty of the and other Abolition lecturers had made fa- States, the right of each State to regulate miliar in the northern and central portions its own domestic institutions to suit itself; of the State: to wit, that the Declaration and that right was conferred with the underof Independence having declared all men free standing and expectation that, inasmuch as

and equal, by divine law, also that negro each locality had separate interests, each equality was an inalienable right, of which locality must have different and distinct local they could not be deprived. He insisted, in and domestic institutions, corresponding to

that speech, that the Declaration of Inde- its wants and interests. Our fathers knew pendence included the negro in the clause when they made the government that the asserting that all men were created equal, laws and institutions which were well adapted

and went so far as to say that if one man’ to the Green Mountains of Vermont were was allowed to take the position that it did unsuited to the rice plantations of South

THe LINcOLN-DOUGLAS DEBATES 353 Carolina. They knew then, as well as we tory of the United States the same as any know now, that the laws and institutions other description of property, yet when you which would be well adapted to the beautiful get them there they are subject to the local prairies of Illinois would not be suited to law of the Territory just like all other propthe mining regions of California. They knew _ erty. Vou will find in a recent speech dethat in a republic as broad as this, having livered by that able and eloquent statesman such a variety of soil, climate, and interest, Hon. Jefferson Davis, at Bangor, Maine, that

there must necessarily be a corresponding he took the same view of this subject that variety of local laws,—the policy and in- I did in my Freeport speech. He there sald: stitutions of each State adapted to its con- “Tf the inhabitants of any Territory should dition and wants. For this reason this Union refuse to enact such laws and police regula-

was established on the right of each State tions as would give security to their propto do as it pleased on the question of slavery, erty or to his, it would be rendered more and every other question; and the various oF less valueless in proportion to the difStates were not allowed to complain of, ficulties of holding it without such protection. much less interfere with, the policy of their In the case of property in the labor of man,

neighbors. .. . or what is usually called slave property, the _.. These measures [Compromise of insecurity would be so great that the owner 1850] passed on the joint action of the two could not ordinarily retain it. Therefore, parties. They rested on the great principle though the right would remain, the remedy that the people of each State and each Terri- being withheld, it would follow that the tory should be left perfectly free to form owner would be practically debarred, by the and regulate their domestic institutions to circumstances of the case, from taking slave

suit themselves. You Whigs and we Demo- _ property into a Territory where the sense of

crats justified them in that principle. In the inhabitants was opposed to its introduc1854, when it became necessary to organize tion. So much for the oft-repeated fallacy the Territories of Kansas and Nebraska, I of forcing slavery upon any community.” brought forward the bill on the same prin- You will also find that the distinguished ciple. In the Kansas-Nebraska Bill you find Speaker of the present House of Repreit declared to be the true intent and mean- sentatives, Hon. Jas. L. Orr, construed the ing of the act not to legislate slavery into Kansas and Nebraska Bill in this same way any State or Territory, nor to exclude it in 1856, and also that great intellect of the therefrom, but to leave the people thereof South, Alex. H. Stephens, put the same conperfectly free to form and regulate their struction upon it in Congress that I did in domestic institutions in their own way. I my Freeport speech. The whole South are stand on that same platform in 1858 that I rallying to the support of the doctrine that did in 1850, 1854, and 1856... . It has oc- if the people of a Territory want slavery, curred to me that in 1854 the author of the they have a right to have it, and if they do Kansas and Nebraska Bill was considered a not want it, that no power on earth can pretty good Democrat. It has occurred to me force it upon them. I hold that there is no that in 1856, when I was exerting every nerve principle on earth more sacred to all the and every energy for James Buchanan, stand- friends of freedom than that which says that ing on the same platform then that I do now, no institution, no law, no constitution, should

that I was a pretty good Democrat. They be forced on an unwilling people contrary to now tell me that I am not a Democrat, be- their wishes; and I assert that the Kansas cause I assert that the people of a Territory, and Nebraska Bill contains that principle. as well as those of a State, have the right It is the great principle contained in that to decide for themselves whether slavery can Dill. It is the principle on which James

or cannot exist in such Territory... . Buchanan was made President. Without that I... further ... say that while, under principle, he never would have been made the decision of the Supreme Court, as President of the United States. I will never recorded in the opinion of Chief Justice violate or abandon that doctrine, if I have Taney, slaves are property like all other to stand alone. I have resisted the blandishproperty, and can be carried into any Terri- ments and threats of power on the one side,

354 DOCUMENTS OF AMERICAN History and seduction on the other, and have stood the difficulties of getting rid of it in any

immovably for that principle, fighting for it satisfactory way, and to all the constitutional when assailed by Northern mobs, or threat- obligations thrown about it. Yet, having a

ened by Southern hostility. I have defended due regard for these, they desire a policy it against the North and the South, and I in regard to it that looks to its not creatwill defend it against whoever assails it, and ing any more danger. They insist that it I will follow it wherever its logical con- should, as far as may be, be treated as a clusions lead me. I say to you that there is wrong: and one of the methods of treating but one hope, one safety for this country, it as a wrong is to make provision that it and that is to stand immovably by that — shall grow no larger. They also desire a principle which declares the right of each policy that looks to a peaceful end of slavery State and each Territory to decide these at some time, as being wrong. These are the questions for themselves. This government views they entertain in regard to it as I was founded on that principle, and must be understand them: and all their sentiments, administered in the same sense in which it all their arguments and propositions, are

was founded... . brought within this range. I have said, and

. I repeat it here, that if there be a man

Mr. Lincoln’s Reply amongst us who docs not think that the in-

. . . Now, irrespective of the moral aspect _ stitution of slavery is wrong in any one of

of this question as to whether there is a the aspects of which I have spoken, he is

right or wrong in enslaving a negro, I am misplaced, and ought not to be with us. And

still in favor of our new Territories being if there be a man amongst us who is so in such a condition that white men may find impatient of it as a wrong as to disregard a home,—may find some spot where they its actual presence among us and the difcan better their condition; where they can ficulty of getting rid of it suddenly in a settle upon new soil and better their con- satisfactory way, and to disregard the condition in life. I am in favor of this, not — stitutional obligations thrown about it, that merely (I must say it here as I have else- man is misplaced if he is on our platform. where) for our own people who are born We disclaim sympathy with him in practical amongst us, but as an outlet for free white action. He is not placed properly with us. people everywhere—the world over—in On this subject of treating it as a wrong, which Hans, and Baptiste, and Patrick, and and limiting its spread, let me say a word. all other men from all the world, may find Has anything ever threatened the existence new homes and better their conditions in of this Union save and except this very in-

life. stitution of slavery? What is it that we hold

I have stated upon former occasions, and most dear amongst us? Our own liberty and I may as well state again, what I understand prosperity. What has ever threatened our to be the real issue in this controversy be- liberty and prosperity, save and except this tween Judge Douglas and myself. ... The institution of slavery? If this is true, how do real issue in this controversy—the one press- you propose to improve the condition of ing upon every mind—is the sentiment on things by enlarging slavery,—by spreading it the part of one class that looks upon the out and making it bigger? You may have a institution of slavery as @ wrong, and of an- wen or cancer upon your person, and not be other class that does not look upon it as a able to cut it out, lest you bleed to death: wrong. The sentiment that contemplates the but surely it is no way to cure it, to engraft institution of slavery in this country as a_ it and spread it over your whole body. That wrong is the sentiment of the Republican is no proper way of treating what you regard party. It is the sentiment around which all a wrong. You see this peaceful way of dealtheir actions, all their arguments, circle, from ing with it as a wrong,—restricting the spread

which all their propositions radiate. They of it, and not allowing it to go Into new look upon it as being a moral, social, and countries where it has not already existed. political wrong; and while they contemplate That is the peaceful way, the old-fashioned

it as such, they nevertheless have due re- way, the way in which the fathers themgard for its actual existence among us, and _ selves set us the example.

Tue Lincotn-DOUGLAS DEBATES 355 On the other hand, I have said there is tinue to struggle. The one is the common |

a sentiment which treats it as mot being right of humanity, and the other the divine wrong. That is the Democratic sentiment right of kings... . And whenever we can

of this day.... get rid of the fog which obscures the real

_.. The Democratic policy in regard to question, when we can get Judge Douglas that institution will not tolerate the merest and his friends to avow a policy looking to breath, the slightest hint, of the least degree its perpetuation,—we can get out from among of wrong about it. Try it by some of Judge that class of men and bring them to the side Douglas’s arguments. He says he “don’t care of those who treat it as a wrong. Then there whether it is voted up or voted down” in will soon be an end of it, and that end will the Territories. I do not care myself, in deal- be its “ultimate extinction.” Whenever the ing with that expression, whether it is in- issue can be distinctly made, and all extranetended to be expressive of his individual ous matter thrown out so that men can fairly. sentiments on the subject, or only of the see the real difference between the parties, national policy he desires to have established. this controversy will soon be settled, and it It is alike valuable for my purpose. Any man will be done peaceably too. There will be no can say that who does not see anything wrong war, no violence. It will be placed again in slavery; but no man can logically say where the wisest and best men of the world

it who does see a wrong in it, because no placedit.... man can logically say he don’t care whether I understand I have ten minutes yet. I will

a wrong is voted up or voted down. He employ it in saying something about this may say he don’t care whether an indifferent argument Judge Douglas uses, while he susthing is voted up or down, but he must logi- tains the Dred Scott decision, that the people cally have a choice between a right thing and of the Territories can still somehow exclude

a wrong thing. He contends that whatever slavery. The first thing I ask attention to community wants slaves has a right to have is the fact that Judge Douglas constantly them. So they have, if it is not a wrong. said, before the decision, that whether they But if it is a wrong, he cannot say people could or not, was a question for the Suhave a right to do wrong. He says that upon preme Court. But after the court had made

the score of equality slaves should be al- the decision he virtually says it is mot a lowed to go in a new Territory, like other question for the Supreme Court, but for the property. This is strictly logical if there is people. And how is it he tells us they can no difference between it and other property. exclude it? He says it needs “police regulaIf it and other property are equal, this argu- tions,” and that admits of “unfriendly legislament is entirely logical. But if you insist that tion.” Although it is a right established by one is wrong and the other right, there is the Constitution of the United States to take no use to institute a comparison between a slave into a Territory of the United States right and wrong. You may turn over every- and hold him as property, yet unless the thing in the Democratic policy from begin- Territorial Legislature will give friendly ning to end, whether in the shape it takes on legislation, and more especially if they adopt the statute book, in the shape it takes in unfriendly legislation, they can practically the Dred Scott decision, in the shape it takes exclude him. Now, without meeting this

in conversation, or the shape it takes in proposition as a matter of fact, I pass to short maxim-like arguments,—it everywhere consider the real constitutional obligation. carefully excludes the idea that there is any- Let me take the gentleman who looks me

thing wrong in it. in the face before me, and let us suppose

That is the real issue. That is the issue that he is a member of the Territorial Legisthat will continue in this country when these lature. The first thing he will do will be to

poor tongues of Judge Douglas and myself swear that he will support the Constitushall be silent. It is the eternal struggle be- tion of the United States. His neighbor by tween these two principles—right and wrong his side in the Territory has slaves and needs —throughout the world. They are the two Territorial legislation to enable him to enjoy principles that have stood face to face from that constitutional right. Can he withhold the the beginning of time, and will ever con- legislation which his neighbor needs for the

356 DOCUMENTS OF AMERICAN History enjoyment of a right which is fixed in his Territory, provided this Dred Scott decision favor in the Constitution of the United is correct. I defy any man to make an arguStates which he has sworn to support? Can ment that will justify unfriendly legislation he withhold it without violating his oath? to deprive a slaveholder of his right to hold And, more especially, can he pass unfriendly his slave in a Territory, that will not equally, legislation to violate his oath? Why, this isa in all its length, breadth, and_ thickness, monstrous sort of talk about the Constitu- furnish an argument for nullifying the Fugition of the United States! There has never tive Slave law. Why, there is not such an been as outlandish or lawless a doctrine from Abolitionist in the nation as Douglas, after the mouth of any respectable man on earth. all!

I do not believe it is a constitutional right _

to hold slaves in a Territory of the United Mr. Douglas’s Rejoinder States. I believe the decision was improperly Mr. Lincoln tries to avoid the main issue

made and I go for reversing it. Judge Douglas __ by attacking the truth of my proposition that

is furlous against those who go for reversing our fathers made this government divided a decision. But he is for legislating it out of into free and slave States, recognizing the all force while the law itself stands. I repeat right of each to decide all its local questions

that there has never been so monstrous a for itself. Did they not thus make it? It is doctrine uttered from the mouth of a re- true that they did not establish slavery in

spectable man... . any of the States, or abolish it in any of I say that no man can deny his obligation them; but finding thirteen States, twelve of to give the necessary legislation to support which were slave and one free, they agreed slavery in a Territory, who believes it is a to form a government uniting them together

constitutional right to have it there. No as they stood, divided into free and slave man can, who does not give the Aboli- States, and to guarantee forever to each tionists an argument to deny the obligation State the right to do as it pleased on the enjoined by the Constitution to enact a_ slavery question. Having thus made _ the Fugitive State law. Try it now. It is the government, and conferred this right upon

strongest Abolition argument ever made. I each State forever, I assert that this governsay if that Dred Scott decision is correct, ment can exist as they made it, divided into

then the right to hold slaves in a Territory free and slave States, if any one State is equally a constitutional right with the right chooses to retain slavery. He says that he of a slaveholder to have his runaway re- looks forward to a time when slavery shall turned. No one can show the distinction be- be abolished everywhere. I look forward to tween them. The one is express, so that we a time when each State shall be allowed to cannot deny it. The other is construed to be_ do as it pleases. If it chooses to keep slavery in the Constitution, so that he who believes forever, it is not my business, but its own; the decision to be correct believes in the if it chooses to abolish slavery, it is its own right. And the man who argues that by un- business,—not mine. I care more for the friendly legislation, in spite of that constitu- great principle of self-government, the right tional right, slavery may be driven from the of the people to rule, than I do for all the Territories, cannot avoid furnishing an argu- negroes in Christendom. I would not enment by which Abolitionists may deny the danger the perpetuity of this Union, I would obligation to return fugitives, and claim the not blot out the great inalienable rights of power to pass laws unfriendly to the right of | the white man, for all the negroes that ever

the slaveholder to reclaim his fugitive. I existed. Hence, I say, let us maintain this do not know how such an argument may government on the principles that our fathers strike a popular assembly like this, but I made it, recognizing the right of each State defy anybody to go before a body of men to keep slavery as long as its people deterwhose minds are educated to estimating evi- mine, or to abolish it when they please. But dence and reasoning, and show that there is Mr. Lincoln says that when our fathers made an iota of difference between the constitu- this government they did not look forward to tional right to reclaim a fugitive and the’ the state of things now existing, and thereconstitutional right to hold a slave, in a_ fore he thinks the doctrine was wrong; ...

Tue LiInNcotn-DOUGLAS DEBATES 357 Our fathers, I say, made this government on whether slavery shall or shall not exist within

the principle of the right of each State to their limits. The point upon which Chief do as it pleases in its own domestic affairs, Justice Taney expresses his opinion is simply subject to the Constitution, and allowed the — this, that slaves, being property, stand on people of cach to apply to every new change an equal footing with other property, and of circumstances such remedy as they may consequently that the owner has the same see fit to improve their condition. This right right to carry that property into a Territory

they have for all time to come. that he has any other, subject to the same Mr. Lincoln went on to tell you that he conditions. Suppose that one of your mer-

does not at all desire to interfere with slavery chants was to take fifty or one hundred thou-

in the States where it exists, nor does his sand dollars’ worth of liquors to Kansas. He party. I expected him to say that down here. has a right to go there, under that decision ; Let me ask him, then, how he expects to but when he gets there he finds the Maine put slavery in the course of ultimate extinc- liquor law in force, and what can he do with tion everywhere, if he does not intend to his property after he gets it theree He cannot interfere with it in the States where it exists? sell it, he cannot use it; it is subject to the He says that he will prohibit it in all Terri- local law, and that law is against him, and tories, and the inference is, then, that unless the best thing he can do with it is to bring they make free States out of them he will it back into Missouri or Illinois and sell it. keep them out of the Union; for, mark you, If you take negroes to Kansas, as Colonel he did not say whether or not he would vote Jefferson Davis said in his Bangor speech, to admit Kansas with slavery or not, as her from which I have quoted to-day, you must people might apply (he forgot that, as usual, take them there subject to the local law. If etc.): he did not say whether or not he was the people want the institution of slavery, in favor of bringing the Territories now in they will protect and encourage it; but if existence into the Union on the principle they do not want it, they will withhold that of Clay’s Compromise measures on the protection, and the absence of local legislaslavery question. I told you that he would tion protecting slavery excludes it as comnot. His idea is that he will prohibit slavery pletely as a positive prohibition. You slavein all the Territories and thus force them all holders of Missouri might as well understand, to become free States, surrounding the slave what you know practically, that you cannot

States with a cordon of free States, and carry slavery where the people do not want hemming them in, keeping the slaves con- it. All you have a right to ask is that the fined to their present limits whilst they go on people shall do as they please: if they want multiplying, until the soil on which they live — slavery, let them have it; if they do not will no longer feed them, and he will thus want it, allow them to refuse to encourage it.

be able to put slavery in a course of ulti- My friends, if, as I have said before, we mate extinction by starvation. He will ex- will only live up to this great fundamental tinguish slavery in the Southern States as _ principle, there will be peace between the the French general exterminated the Al- North and the South. Mr. Lincoln admits gerines when he smoked them out. He is that, under the Constitution, on all domestic going to extinguish slavery by surrounding questions, except slavery, we ought not to the Slave States, hemming in the slaves, and interfere with the people of each State. What

| starving them out of existence, as you smoke right have we to interfere with slavery any a fox out of his hole. He intends to do that more than we have to interfere with any in the name of humanity and Christianity, other question? He says that this slavery in order that we may get rid of the terrible question is now the bone of contention. crime and sin entailed upon our fathers of Why? Simply because agitators have com-

holding slaves. .. . bined in all the free States to make war I ask you to look into these things, and upon it. Suppose the agitators in the States then tell me whether the Democracy or the should combine in one half of the Union to Abolitionists are right. I hold that the people make war upon the railroad system of the

of a Territory, like those of a State... other half? They would thus be driven to the have the right to decide for themselves same sectional strife. Suppose one section

358 DOCUMENTS OF AMERICAN HIsToRY makes war upon any other peculiar institu- laws as they are passed, while they stand the tion of the opposite section, and the same proper test, and sustain the decisions of the strife is produced. The only remedy and Supreme Court and the constituted authori-

safety is that we shall stand by the Con- _ ties. stitution as our fathers made it, obey the 188. ABLEMAN v. BOOTH 21 Howard, 506 1859

Two writs of custody to the supreme court of laws of the United States, is now for the Wisconsin. Booth was held by Ableman, United first time asserted and acted upon in the states marshal, for violation of the fugitive slave supreme court of a State... . law of September 18, 1850. The supreme court If the judicial power exercised in this inof Wisconsin discharged him from custody on a stance has been reserved to the States, no writ of habeas corpus. He was subsequently tried offence against the laws of the United States again before the United States district court, an aaia sentenced to imprisonment and fine. The supreme 4M _ be punished by their own courts, with-

court of Wisconsin again ordered his release on Ut the permission and according to the the ground that the fugitive slave law was un- judgement of the courts of the State in constitutional. See Warren, Supreme Court, which the party happens to be imprisoned; (1928 ed.) Vol. II. ch. xxvii; J. Hurd, The Law for if the Supreme Court of Wisconsin pos-

of Freedom and Bondage, Vol. II. sessed the power it has exercised in relation to offences against the act of. Congress in —

Taney, C. J... . It will be seen, from the question, it necessarily follows that they foregoing statement of facts, that a judge must have the same judicial authority in of the supreme court of the State of Wis- relation to any other law of the United consin, in the first of these cases, claimed States; and, consequently, their supervisand exercised the right to supervise and annul ing and controlling power would embrace the

the proceedings of a commissioner of the whole criminal code of the United States, United States, and to discharge a prisoner and extend to offences against our revenue who had been committed by the commis- laws, or any other law, intended to guard

sioner for an offense against the laws of the different departments of the General

this government, and that this exercise of Government from fraud or violence. And it power by the judge was afterwards sanc- would embrace all crimes, from the highest tioned and affirmed by the supreme court of to the lowest; including felonies which are

the State. punished with death, as well as misdemeanIn the second case, the state court has ours, which are punished by imprison-

gone a step further, and... claimed and ment....

exercised this jurisdiction, but have also de- It would seem to be hardly necessary to | termined that their decision is final and con- do more than state the result to which these clusive upon all the courts of the United decisions of the State courts must inevitably

States, and ordered their clerk to disregard lead. It is, of itself, a sufficient and conand refuse obedience to the writ of error clusive answer; for no one will suppose that issued by this court, pursuant to the act of | a Government which has now lasted nearly Congress of 1789, to bring here for examina- seventy years, enforcing its laws by its own tion and revision the judgment of the state tribunals, and preserving the union of the

court. States could have lasted a single year, or These propositions are new in the juris- fulfilled the high trusts committed to it, if

prudence of the United States, as well as of offences against its laws could not have been the States; and the supremacy of the state punished without the consent of the State in

courts over the courts of the United States, which the culprit was found.

in cases arising under the Constitution and The judges of the supreme court of Wis-

ABLEMAN Vv. BooTH 359 consin do not distinctly state from what lead to acts of aggression and injustice by source they suppose they have derived this one State upon the rights of another, which judicial power. There can be no such thing as_ would ultimatcly terminate in violence and judicial authority, unless it is conferred by force, unless there was a common arbiter a government or sovereignty; and if the between them, armed with power enough to Judges and courts of Wisconsin possess the protect and guard the rights of all, by apjurisdiction they claim, they must derive it propriate laws, to be carried into execution either from the United States or the State. peaceably by its judicial tribunals. It certainly has not been conferred on them The language of the Constitution, by which by the United States; and it is equally clear this power is granted is too plain to admit that it was not in the power of the State to of doubt or to need comment. It declares

confer it, even if it had attempted to do that “this Constitution, and the laws of the so; for no State can authorize one of its United States which shall be passed in pursujudges or courts to exercise judicial power, ance thereof, and all treaties made, or which by habcas corpus or otherwise, within the shall be made, under the authority of the jurisdiction of another and independent gov- United States, shall be the supreme law of ernment. And although the State of Wis- the land, and the judges in every State shall consin is sovereign within its territorial be bound thereby, anything in the constitu-

limits to a certain extent, yet that sover- tion or laws of any State to the contrary eignty is limited and restricted by the Consti- notwithstanding.”

tution of the United States. ... And the But the supremacy thus conferred on this State of Wisconsin had no more power to government could not peaceably be mainauthorize these proceedings of its judges and tained, unless it was clothed with judicial courts, than it would have had if the prisoner power, equally paramount in authority to had been confined in Michigan, or in any carry it into execution; for if left to the other State of the Union, for an offense courts of justice of the several States, conagainst the laws of the State in which he flicting decisions would unavoidably take

was imprisoned... . place, and the local tribunals could hardly be

But, as we have already said, questions of | expected to be always free from the local inthis kind must always depend upon the Con- fluences of which we have spoken. And the

stitution and laws of the United States, and Constitution and laws and treaties of the not of a State. The Constitution was not United States, and the powers granted to the formed merely to guard the States against federal government, would soon receive difdanger from foreign nations, but mainly to ferent interpretations in different States, and secure union and harmony at home; for if the government of the United States would this object could be attained, there would be soon become one thing in one State and anbut little danger from abroad; and to accom- other thing in another. It was essential, plish this purpose, it was felt by the states- therefore, to its very existence as a governmen who framed the Constitution, and by ment, that it should have the power of esthe people who adopted it, that it was neces- tablishing courts of justice, altogether indesary that many of the rights of sovereignty pendent of state power, to carry into effect which the States then possessed should be its own laws; and that a tribunal should be ceded to the general government; and that, established in which all cases which might

in the sphere of action assigned to it, it arise under the Constitution and laws and Should be supreme, and strong enough to treaties of the United States, whether in a execute its own laws by its own tribunals, state court or in a court of the United States without interruption from a State or from should be finally and conclusively decided.

state authorities. And it was evident that Without such a tribunal, it is obvious that anything short of this would be inadequate there would be no uniformity of judicial to the main object for which the government decision; and that the supremacy (which is was established; and that local interests, local but another name for independence), so carepassions or prejudices, incited and fostered fully provided in the clause of the Constituby individuals for sinister purposes, would tion above referred to, could not possibly be

360 DOCUMENTS OF AMERICAN History maintained peaceably, unless it was associ- judicial power upon the federal government, ated with this paramount judicial authority. it declares that the jurisdiction of its courts Accordingly, it was conferred on the gen- shall extend to all cases arising under “‘this eral government, in clear, precise, and com- constitution” and the laws of the United

prehensive terms... . States—leaving out the words of restriction The importance which the framers of the contained in the grant of legislative power Constitution attached to such a tribunal for which we have above noticed. The judicial the purpose of preserving internal tranquil- power covers every legislative act of Conlity, is strikingly manifested by the clause gress, whether it be made within the limits which gives this court jurisdiction over the of its delegated powers, or be an assumpsovereign States which compose this Union, tion of power beyond the grants in the Conwhen a controversy arises between them. _ stitution. . . . Experience has demonstrated that this This judicial power was justly regarded as power was not unwisely surrendered by the indispensable, not merely to maintain the States; for in the time that has already supremacy of the laws of the United States, elapsed since this government came into ex- but also to guard the States from any enistence, several irritating and angry contro- croachment upon their reserved rights by the versies have taken place between adjoining general government. And as the ConstituStates, in relation to their respective bounda- tion is the fundamental and supreme law, if ries, and which have sometimes threatened it appears that an act of Congress is not

to end in force and violence, but for the pursuant to and within the limits of the

power vested in this court to hear them and power assigned to the federal government,

decide between them. it is the duty of the courts of the United

The same purposes are clearly indicated by States to declare it unconstitutional and the different language employed when con- void... .

ferring supremacy upon the laws of the We do not question the authority of a United States, and jurisdiction upon its state court, or judge, who is authorized by courts. In the first case, it provides that the laws of the State to issue the writ of “this Constitution, and the laws of the habeas corpus, to issue it in any case where United States which shall be made in pur- the party is imprisoned within its territorial suance thereof, shall be the supreme law of limits, provided it does not appear, when the

the land, and obligatory upon the judges in application is made, that the person imevery State.” The words in italics show the prisoned is in custody under the authority precision and forethought which marks every of the United States. . . . But, after the reclause in the instrument. The sovereignty to turn is made, and the state judge or court be created was to be limited in its powers of judicially apprized that the party is in legislation, and it it passed a law not au- custody under the authority of the United thorized by its enumerated powers, it was not States, they can proceed no further. No State

to be regarded as the supreme law of the judge or Court after they are judicially inland, nor were the state judges bound to formed that the party is imprisoned under carry it into execution. And as the courts the authority of the United States, has any of a State, and the courts of the United right to interfere with him, or to require him States, might, and indeed certainly would, to be brought before them. And if the auoften differ as to the extent of the powers’ thority of a State, in the form of judicial conferred by the general government, it was process or otherwise, should attempt to conmanifested that serious controversies would trol the marshal or other authorized officer arise between the authorities of the United or agent of the United States, in any respect,

States and of the States, which must be in the custody of his prisoner, it would be settled by force of arms, unless some tribunal his duty to resist it, and to call to his aid any

was created to decide between them finally force that might be necessary to maintain

and without appeal. the authority of law against illegal inter-

The Constitution has accordingly pro- ference. No judicial process, whatever form vided, as far as human foresight could pro- it may assume, can have any lawful authorvide, against this danger. And in conferring ity outside of the limits of the jurisdiction

Joun Brown’s LAST SPEECH 361 of the court or judge by whom it is issued; to revise and correct it, and not for a state

and an attempt to enforce it beyond these court... . a

boundaries is nothing less than lawless vio- But although we think it unnecessary to

lence. discuss these questions, yet, as they have And no power is more clearly conferred by been decided by the state court, and are the Constitution and the laws of the United before us on the record, and we are not

States, than the power of this court to decide willing to be misunderstood, it is proper to ultimately and finally, all cases arising under say that, in the judgement of this court, the such Constitution and laws; and for that pur- act of Congress commonly called the fugipose to bring here for revision, by writ of tive slave law is, in all of its provisions, fully error, the judgement of a state court, where authorized by the Constitution of the United

such questions have arisen, and the right States; that the commissioner had lawful claimed under them is denied by the highest authority to issue the warrant and commit.

judicial tribunal in the State... . the party, and that his proceedings were If there was any defect of power in the regular and conformable to law... . commissioner, or in his mode of proceeding, Judgement of the state court reversed.

it was for the tribunals of the United States

189. JOHN BROWN’S LAST SPEECH : November 2, 1859

(American State Trials, ed. by J. D. Lawson, Vol. VI, p. 800 ff.) John Brown, most fanatical of abolitionists, treason, or the destruction of property, or planned to incite a general insurrection of slaves to excite or incite slaves to rebellion, or to in Virginia and form a free state somewhere iN ake insurrection. the mountains of western Maryland and Virginia. I have another objection; and that is, it With the aid of funds gathered in New England jg unjust that I should suffer such a penalty. and New York he collected supplies and arms at Had I interfered in the manner which I on the night of October 16 moved on the town admit, and which I admit has been fairly of Harper’s Ferry and captured the government proved (for I admire the truthfulness and armory. United States marines under the com- candor of the greater portion of the witnesses mand of Col. R. E. Lee carried the armory by who have testified in this case),—had I so

a farmhouse near Harper’s Ferry, Virginia, and . ; assault, and captured Brown and some of his fol- _ interfered in behalf of the rich, the powerful,

lowers. He was indicted for treason and for the intelligent, the so-called great, or in beconspiring with slaves to commit murder, con- half of any of their friends,—either father, vcted and sentenced to be hanged Qn Brown see nother, brother, sister, wife, of children, oF and Letters of John Brown; R. P. Warren, @2Y of that class,—and suffered and sacrificed John Brown. The trial is given in full in Ameri- what I have in this interference, it would

can State Trials, Vol. VI. have been all right; and every man in this

court would have deemed it an act worthy I have, may it please the Court, a few of reward rather than punishment.

words to say. This court acknowledges, as I suppose, the In the first place, I deny everything but validity of the law of God. I see a book

what I have all along admitted,—the design kissed here which I suppose to be the Bible,

on my part to free the slaves. I intended or at least the New Testament. That teaches certainly to have made a clean thing of that me that all things whatsoever I would that matter, as I did last winter, when I went into men should do to me, I should do even so Missouri and there took slaves without the to them. It teaches me, further, to “rememsnapping of a gun on either side, moved them ber them that are in bonds, as bound with through the country, and finally left them them.” I endeavored to act up to that inin Canada. I designed to have done the same _ struction. I say, I am yet too young to un-

thing again, on a larger scale. That was all derstand that God is any respecter of perI intended. I never did intend murder, or sons. I believe that to have interfered as I

362 DOCUMENTS OF AMERICAN History have done—as I have always freely admitted son, or excite slaves to rebel, or make any I have done—in behalf of His despised poor, general insurrection. I never encouraged any

was not wrong, but right. Now, if it is man to do so, but always discouraged any deemed necessary that I should forfeit my idea of that kind.

life for the furtherance of the ends of Let me say, also, a word in regard to the justice, and mingle my blood further with statements made by some of those connected the blood of my children and with the blood with me. I hear it has been stated by some of millions in this slave country whose rights of them that I have induced them to join

are disregarded by wicked, cruel, and un- me. But the contrary is true. I do not say just enactments,—I submit; so let it be done! this to injure them, but as regretting their

Let me say one word further. weakness. There is not one of them but

I feel entirely satisfied with the treatment joined me of his own accord, and the greater

I have received on my trial. Considering part of them at their own expense. A numall the circumstances, it has been more gener- ber of them I never saw, and never had a ous than I expected. But I feel no conscious- word of conversation with, till the day they

ness of guilt. I have stated from the first came to me ; and that was for the purpose what was my intention, and what was not. II have stated. never had any design against the life of any Now I have done. person, nor any disposition to commit trea190. RESOLUTIONS ON SECESSION FROM FLOYD COUNTY, GEORGIA 1860

(The Confederate Records of the State of Georgia, ed. by A. D. Candler, Vol. I, p. 115 ff.) These resolutions are typical of the resolutions fect; . . . has prompted the armed invasion which were passed by many counties in Georgia of Southern soil, by stealth... for the on the eve of secession. The struggle between the — diabolical] purpose of inaugurating a ruthless

Unionists and the dis-unionists in Georgia was war of the blacks against the whites throughmore severe than elsewhere in the South wit h out the Southern States; has prompted large the exception of Virginia. See, I. W. Avery, His- masses Of Northern people openly to sym-

tory of the State of Georgia from 1850 to 1881; G. M. Battey, History of Rome and Floyd pathize with the treacherous and traitorous

County; U. B. Phillips, Georgia and State Rights; invaders of our country, and elevate the H. Fielder, Sketch of the Life and Times of leader of a band of midnight assassins, and Joseph E. Brown; HW. J. Pearce, Benjamin H. robbers ... to the rank of a hero and a

Hill; U. B. Phillips, Life of Robert Toombs; martyr... ; has disrupted the churches, P.S. Flippin, Herschel V. Johnson; L. Pendleton, and destroyed all national parties, and has

Alexander H. Stephens. now finally organized a party confined to a

Whereas, the abolition sentiment of the E. McPherson, Political History of Reconstruc- ree Negroes, Or Mulattoes sha c compe

tion, p. 29 ff. tent in civil cases, when a party or parties to the suit, either plaintiff or plaintiffs, de1. Civit RicHTS OF F'REEDMEN fendant or defendants, and a white person

IN MissIssIpPl or white persons, is or are the opposing party

Sec.1. Be it enacted, ... That all freed- or parties, plaintiff or plaintiffs, defendant or men, free negroes, and mulattoes may sue defendants. They shall also be competent and be sued, implead and be impleaded, in witnesses in all criminal prosecutions where all the courts of law and equity of this State, the crime charged is alleged to have been and may acquire personal property, and committed by a white person upon or against choses in action, by descent or purchase, andthe person or property of a freedman, free may dispose of the same in the same man- negro, or mulatto: Provided, that in all cases ner and to the same extent that white per- said witnesses shall be examined in open sons may: Provided, That the provisions of court, on the stand; except, however, they this section shall not be so construed as to may be examined before the grand jury, and allow any freedman, free negro, or mulatto — shall in all cases be subject to the rules and to rent or lease any lands or tenements ex- tests of the common law as to competency cept in incorporated cities or towns, in which and credibility... .

places the corporate authorities shall control Sec. 6... . All contracts for labor made

the same.... with freedmen, free negroes, and mulattoes

BLACK CopvE oF MISSISSIPPI 3 for a longer period than one month shall be hundred dollars and the costs; and if said in writing, and in duplicate, attested and fine and costs shall not be immediately paid, read to said freedman, free negro, or mulatto the court shall sentence said convict to not by a beat, city or county officer, or two dis- exceeding two months’ imprisonment in the interested white persons of the county in county jail, and he or she shall moreover be which the labor is to be performed, of which _ liable to the party injured in damages: Proeach party shall have one; and said contracts vided, if any person shall, or shall attempt to, shall be taken and held as entire contracts, persuade, entice, or cause any freedman, free

and if the laborer shall quit the service of negro, or mulatto to desert from any legal the employer before the expiration of his employment of any person, with the view term of service, without good cause, he shall to employ said freedman, free negro, or forfeit his wages for that year up to the time mulatto without the limits of this State, such

of quitting. person, on conviction, shall be fined not less Sec. 7... . Every civil officer shall, and than fifty dollars, and not more than five every person may, arrest and carry back to hundred dollars and costs; and if said fine his or her legal employer any freedman, free and costs shall not be immediately paid, the

negro, or mulatto who shall have quit the court shall sentence said convict to not exservice of his or her employer before the ceeding six months imprisonment in the

expiration of his or her term of service county jail... .

without good cause; and said officer and per- |

- gon shall be entitled to receive for arresting 2, MISSISSIPPI APPRENTICE LAW and carrying back every deserting employe (Laws of Mississippi, 1865, p. 86)

aforesaid the sum of five dollars, and ten Sec. 1. ... It shall be the duty of all cents per mile from the place of arrest to sheriffs, justices of the peace, and other the place of delivery; and the same shall be civil officers of the several counties in this paid by the employer, and held as a set-off State, to report to the probate courts of for so much against the wages of said de- their respective counties semi-annually, at serting employe: Provided, that said arrested the January and July terms of said courts, party, after being so returned, may appeal to all freedmen, free negroes, and mulattoes, the justice of the peace or member of the under the age of eighteen, in their respective board of police of the county, who, on no- counties, beats or districts, who are orphans,

tice to the alleged employer, shall try sum- or whose parent or parents have not the marily whether said appellant is legally em- means or who refuse to provide for and ployed by the alleged employer, and has good = support said minors; and thereupon it shall

cause to quit said cmployer; either party be the duty of said probate court to order shall have the right of appeal to the county the clerk of said court to apprentice said court, pending which the alleged deserter shall minors to some competent and suitable per-

be remanded to the alleged employer or son, on such terms as the court may direct, otherwise disposed of, as shall be right and having a particular care to the interest of just; and the decision of the county court said minor: Provided, that the former owner

shall be final... . of said minors shall have the preference

Sec. 9. . . . If any person shall persuade when, in the opinion of the court, he or she or attempt to persuade, entice, or cause any shall be a suitable person for that purpose.

freedman, free negro, or mulatto to desert Sec. 2... . The said court shall be fully from the legal employment of any person be- satisfied that the person or persons to whom

fore the expiration of his or her term of said minor shall be apprenticed shall be a service, or shall knowingly employ any such suitable person to have the charge and care deserting freedman, free negro, or mulatto, of said minor, and fully to protect the inor shall knowingly give or sell to any such terest of said minor. The said court shall deserting freedman, free negro, or mulatto, require the said master or mistress to exeany food, raiment, or other thing, he or she cute bond and security, payable to the State shall be guilty of a misdemeanor, and, upon of Mississippi, conditioned that he or she

conviction, shall be fined not less than shall furnish said minor with sufficient food twenty-five dollars and not more than two and clothing; to treat said minor humanely;

4 DOCUMENTS OF AMERICAN History furnish medical attention in case of sickness; pilferers, lewd, wanton, or lascivious persons,

teach, or cause to be taught, him or her to in speech or behavior, common railers and read and write, if under fifteen years old, brawlers, persons who neglect their calling and will conform to any law that may be or employment, misspend what they earn, or hereafter passed for the regulation of the do not provide for the support of themselves duties and relation of master and appren- or their families, or dependents, and all other

tice... . idle and disorderly persons, including all who Sec. 3... . In the management and con-__ neglect all lawful business, habitually mistrol of said apprentice, said master or mis- spend their time by frequenting houses of

tress shall have the power to inflict such mod-__ill-fame, gaming-houses, or tippling shops, erate corporal chastisement as a father or shall be deemed and considered vagrants, unguardian is allowed to inflict on his or her der the provisions of this act, and upon conchild or ward at common law: Provided, that viction thereof shall be fined not exceeding in no case shall cruel or inhuman punishment one hundred dollars, with all accruing costs,

be inflicted. and be imprisoned at the discretion of the Sec. 4... . If any apprentice shall leave court, not exceeding ten days.

the employment of his or her master or Sec, 2... . All freedmen, free negroes mistress, without his or her consent, said and mulattoes in this State, over the age of master or mistress may pursue and recapture eighteen years, found on the second Monday

said apprentice, and bring him or her before in January, 1866, or thereafter, with no any justice of the peace of the county, whose lawful employment or business, or found un- -

duty it shall be to remand said apprentice lawfully assembling themselves together, to the service of his or her master or mis- _ either in the day or night time, and all white tress; and in the event of a refusal on the persons so assembling themselves with freed-

part of said apprentice so to return, then men, free negroes or mulattoes, or usually said justice shall commit said apprentice to associating with freedmen, free negroes or the jail of said county, on failure to give mulattoes, on terms of equality, or living in bond, to the next term of the county court; adultery or fornication with a freed woman, and it shall be the duty of said court at the free negro or mulatto, shall be deemed vafirst term thereafter to investigate said case, grants, and on conviction thereof shall be and if the court shall be of opinion that said | fined in a sum not exceeding, in the case of apprentice left the employment of his or her a freedman, free negro or mulatto, fifty dolmaster or mistress without good cause, to or- lars, and a white man two hundred dollars, der him or her to be punished, as provided and imprisoned at the discretion of the court, for the punishment of hired freedmen, as_ the free negro not exceeding ten days, and may be from time to time provided for by the white man not exceeding six months. . . . law for desertion, until he or she shall agree sec. 7... . If any freedman, free negro, to return to the service of his or her master or mulatto shall fail or refuse to pay any tax

or mistress: ... if the court shall believe levied according to the provisions of the that said apprentice had good cause to quit — sixth section of this act, it shall be prima his said master or mistress, the court shall facie evidence of vagrancy, and it shall be discharge said apprentice from said inden- the duty of the sheriff to arrest such freedture, and also enter a judgment against the man, free negro, or mulatto or such person master or mistress for not more than one refusing or neglecting to pay such tax, and hundred dollars, for the use and benefit of proceed at once to hire for the shortest time

said apprentice... .. such delinquent tax-payer to any one who will pay the said tax, with accruing costs, 3. MississipPr1 VAGRANT Law giving preference to the employer, if there

(Laws of Mississippi, 1865, p. 90) be one... . Sec. 1. Be it enacted, etc.,... That all rogues and vagabonds, idle and dissipated 4. PENAL Laws OF Mississippi

persons, beggars, jugglers, or persons prac- (Laws of Mississippi, 1865, p. 165.)

ticing unlawful games or plays, runaways, Sec.l. Be it enacted, . . . That no freedcommon drunkards, common night-walkers, man, free negro or mulatto, not in the mili-

BLAcK CopDE OF LOUISIANA 5 tary service of the United States govern- specifically provided for by law, shall, upon ment, and not licensed so to do by the board conviction thereof in the county court, be of police of his or her county, shall keep or fined not less than ten dollars, and not more carry fire-arms of any kind, or any ammuni-_ than one hundred dollars, and may be imtion, dirk or bowie knife, and on conviction prisoned at the discretion of the court, not thereof in the county court shall be pun- exceeding thirty days. ished by fine, not exceeding ten dollars, and Sec. 3. . . . If any white person shall sell, pay the costs of such proceedings, and all lend, or give to any freedman, free negro, such arms or ammunition shall be forfeited or mulatto any fire-arms, dirk or bowie knife,

to the informer; and it shall be the duty of or ammunition, or any spirituous or intoxievery civil and military officer to arrest any cating liquors, such person or persons so offreedman, free negro, or mulatto found with fending, upon conviction thereof in the any such arms or ammunition, and cause county court of his or her county, shall be him or her to be committed to trial in de- fined not exceeding fifty dollars, and may

fault of bail. be imprisoned, at the discretion of the court, 2... . Any freedman, free negro, or mu-__ not exceeding thirty days... .

latto committing riots, routs, affrays, tres- Sec. 5... . If any freedman, free negro, passes, malicious mischief, cruel treatment to or mulatto, convicted of any of the misdeanimals, seditious speeches, insulting ges- meanors provided against in this act, shall

tures, language, or acts, or assaults on any fail or refuse for the space of five days, person, disturbance of the peace, exercising after conviction, to pay the fine and costs the function of a minister of the Gospel with- imposed, such person shall be hired out by out a license from some regularly organized the sheriff or other officer, at public outcry, church, vending spirituous or intoxicating to any white person who will pay said fine liquors, or committing any other misde- and all costs, and take said convict for the

meanor, the punishment of which is not shortest time. 247. BLACK CODE OF LOUISIANA 1865

(Acts of the General Assembly of Louisiana Regulating Labor. Extra Session, 1865, p. 3 ff.) On the Black Codes see Doc. No. 246 and refer- signed by the employer, and shall be made in ences. See also, E. Lonn, Reconstruction in the presence of a Justice of the Peace and Louisiana; J. R. Flicken, History of Recon- two disinterested witnesses, in whose presOthe in Louisiana; H. C. Warmoth, War, ence the contract shall be read to the laborer

olitics and Stormy Days inlat-, Louisiana. andReconstruction: when assented to and signed by the ter, shall be considered as binding for the 1. AN Act TO PROVIDE FOR AND REGULATE um Prescnped. , bo h

LABOR CONTRACTS FOR AGRICULTURAL CG. EV ETY NADOrer § all have full and

PURSUITS. perfect liberty to choose his employer, but, when once chosen, he shall not be allowed

Sec. 1. Be it enacted by the Senate and_ to leave his place of employment until the

House of Representatives of the State of fulfillment of his contract ... and if they Louisiana in general assembly convened, That do so leave, without cause or permission, all persons employed as laborers in agricul- they shall forfeit all wages earned to the time

tural pursuits shall be required, during the of abandonment... . first ten days of the month of January of Sec. 7. All employers failing to comply each year, to make contracts for labor for with their contracts, shall, upon conviction, the then ensuing year, or for the year next be fined an amount double that due the ensuing the termination of their present con- laborer . ..» to be paid to the laborer; and tracts. All contracts for labor for agricul- any inhumanity, cruelty, or neglect of duty tural purposes shall be made in writing, on the part of the employer shall be sum-

6 DocUMENTS OF AMERICAN History marily punished by fines... to be paid provided for in this section. No live stock

to the injured party... . shall be allowed to laborers without the per-

Sec. 8. Be it further enacted, &c., That mission of the employer. Laborers shall not in case of sickness of the laborer, wages for receive visitors during work-hours. All diffithe time lost shall be deducted, and where culties arising between the employers and the sickness is feigned for purposes of idle- laborers, under this section, shall be settled

ness, and also on refusal to work according by the former: if not satisfactory to the to contract, double the amount of wages laborers, an appeal may be had to the nearshall be deducted for the time lost; and also est Justice of the Peace and two freeholders,

where rations have been furnished; and citizens, one of said citizens to be selected should the refusal to work continue beyond by the employer and the other by the lathree days, the offender shall be reported to borer; and all fines imposed and collected a Justice of the Peace, and shall be forced under this section shall be deducted from to labor on roads, levees, and other public wages due, and shall be placed in a common works, without pay, until the offender con- fund, to be divided among the other laborers

sents to return to his labor. on the plantation, except as provided for

Sec. 9. Be it further enacted, &c., That, above... . when in health, the laborer shall work ten Sec. 10. Be it further enacted, &c., That hours during the day in summer, and nine for gross misconduct on the part of the

hours during the day in winter, unless other- laborer, such as insubordination, habitual laziwise stipulated in the labor contract; he shall ness, frequent acts of violation of his conobey all proper orders of his employer or his tract or the laws of the State, he may be agent; take proper care of his work-mules, dismissed by his employer; nevertheless, the horses, oxen, stock; also of all agricultural laborer shall have the right to resist his disimplements; and employers shall have the missal and to a redress of his wrongs by an right to make a reasonable deduction from appeal to a Justice of the Peace and two the laborer’s wages for injuries done to ani- freeholders, citizens of the parish, one of the mals or agricultural implements committed freeholders to be selected by himself and to his care, or for bad or negligent work. the other by his employer. Bad work shall not be allowed. Failing to 2. AN Act RELATIVE TO APPRENTICES obey reasonable orders, neglect of duty, and leaving home without permission will be

. . - é AND INDENTURED SERVANTS

deemed disobedience; impudence, swearing, sec. 1. Be it enacted ... That it shall or indecent language to or in the presence of _ be the duty of Sheriffs, Justices of the Peace,

the employer, his family, or agent, or quar- and other Civil officers of this State, to rereling and fighting with one another, shall be port ... for each and every year, all perdeemed disobedience. For any disobedience a sons under the age of eighteen years, if fefine of one dollar shall be imposed on and males, and twenty-one, if males, who are paid by the offender. For all lost time from orphans, or whose parents, . . . have not the work-hours, unless in case of sickness, the means, or who refuse to provide for and laborer shall be fined twenty-five cents per maintain said minors; and thereupon it shall

hour. For all absence from home without be the duty of the Clerk of the District leave he will be fined at the rate of two Courts ... to examine whether the party dollars per day. Laborers will not be re- or parties so reported from time to time, quired to labor on the Sabbath unless by come within the purview and meaning of special contract. For all thefts of the laborer this Act, and, if so, to apprentice said minor from the employer of agricultural products, or minors, In manner and form as prescribed

hogs, sheep, poultry, or any other property by the Civil Code.... of the employer, or willful destruction of Sec. 2. That persons, who have attained property or injury, the laborer shall pay the the age of majority, ... may bind thememployer double the amount of the value selves to services to be performed in this of the property stolen, destroyed; or injured, State, for the term of five years, on such one-half to be paid to the employer and the terms as they may stipulate, as domestic other half to be placed in the general fund — servants, and to work on farms, plantations,

JoHNSON’S AMNESTY PROCLAMATION 7 or in manufacturing establishments, which testimony, the Clerk of the District Courts, contracts shall be valid and binding on the Mayor and President of the Police Jury, or

parties to the same. Justices of the Peace aforesaid, shall fix the

Sec. 3. That in all cases where the age of age, according to the best evidence before

the minor can not be ascertained by record them.... 248. JOHNSON’S AMNESTY PROCLAMATION May 29, 1865 (Richardson, ed. Messages and Papers, Vol. VI, p. 310 ff.) Johnson’s proclamation was similar in most re- except as to slaves ... but upon the conspects to Lincoln’s proclamation of December 8, dition, nevertheless, that every such person

1863; the most important difference is to be hall take and subscribe the following oath

found in section thirteen. (or affirmation) and thenceforward keep and By THE PRESIDENT OF THE UNITED maintain said oath inviolate, and which oath

STATES OF AMERICA. shall be registered for permanent preservation and shall be of the tenor and effect

A PROCLAMATION. following, to wit: Whereas the President of the United I, —— -——, do solemnly swear (or

States, on the 8th day of December, A. D. affirm), in presence of Almighty God, that 1863, and on the 26th day of March, A.D. I will henceforth faithfully support, protect, 1864, did, with the object to suppress the and defend the Constitution of the United existing rebellion, to induce all persons to States and the Union of the States therereturn to their loyalty, and to restore the under, and that I will in like manner abide authority of the United States, issue proc- by and faithfully support all laws and proclamations offering amnesty and pardon to lamations which have been made during the certain persons who had, directly or by im- _ existing rebellion with reference to the emanplication, participated in the said rebellion; cipation of slaves. So help me God.

and The following classes of persons are exWhereas many persons who had so en-- cepted from the benefits of this proclamagaged in said rebellion have, since the issu- tion:

ance of said proclamations, failed or neg- First. All who are or shall have beer lected to take the benefits offered thereby; pretended civil or diplomatic officers or

and otherwise domestic or foreign agents of the

Whereas many persons who have been pretended Confederate government. justly deprived of all claim to amnesty and Second. All who left judicial stations unpardon thereunder by reason of their par- der the United States to aid the rebellion. ticipation, directly or by implication, in said Third. All who shall have been military rebellion and continued hostility to the Gov- or naval officers of said pretended Confedernment of the United States since the date erate government above the rank of colonel of said proclamations now desire to apply in the army or lieutenant in the navy.

for and obtain amnesty and pardon. Fourth. All who left seats in the Congress

To the end, therefore, that the authority of the United States to aid the rebellion. | of the Government of the United States may Fifth. All who resigned or tendered resigbe restored and that peace, order, and free- nations of their commissions in the Army dom may be established, I, Andrew Johnson, or Navy of the United States to evade duty President of the United States, do proclaim in resisting the rebellion.

and declare that I hereby grant to all per- sixth. All who have engaged in any way sons who have, directly or indirectly, par- in treating otherwise than lawfully as pristicipated in the existing rebellion, except as oners of war persons found in the United hereinafter excepted, amnesty and pardon, States service as officers, soldiers, seamen, or

with restoration of all rights of property, in other capacities.

8 DOCUMENTS OF AMERICAN History Seventh. All persons who have been or are__ or under bonds of the civil, military, or naval

absentees from the United States for the authorities or agents of the United States as

purpose of aiding the rebellion. prisoners of war, or persons detained for Eighth. All military and naval officers in offenses of any kind, either before or after the rebel service who were educated by the ccnviction.

Government in the Military Academy at Thirteenth. All persons who have volunWest Point or the United States Naval Acad- tarily participated in said rebellion and the

emy. estimated value of whose taxable property is Ninth. All persons who held the pretended _ over $20,000.

offices of governors of States in insurrection Fourteenth. All persons who have taken

against the United States. the oath of amnesty as prescribed in the Tenth. All persons who left their homes President’s proclamation of December 8, within the jurisdiction and protection of A.D. 1863, or an oath of allegiance to the the United States and passed beyond the Government of the United States since the Federal military lines into the pretended date of said proclamation and who have not

Confederate States for the purpose of aiding thenceforward kept and maintained the same the rebellion. inviolate. Eleventh. All persons who have been en- Provided, That special application may be

gaged in the destruction of the commerce made to the President for pardon by any of the United States upon the high seas and person belonging to the excepted classes, and all persons who have made raids into the such clemency will be liberally extended as United States from Canada or been engaged may be consistent with the facts of the case

in destroying the commerce of the United and the peace and dignity of the United States upon the lakes and rivers that sepa- States. rate the British Provinces from the United The Secretary of State will establish rules

States. and regulations for administering and re-

Twelfth. All persons who, at the time when cording the said amnesty oath, so as to inthey seek to obtain the benefits hereof by sure its benefit to the people and guard the taking the oath herein prescribed, are in mili- Government against fraud. .. . tary, naval, or civil confinement or custody,

249. PRESIDENTIAL RECONSTRUCTION

Proclamation of President Johnson for the Provisional Government of South Carolina

June 30, 1865 (Richardson, ed. Messages and Papers, Vol. VI, p. 326 ff.) Johnson followed, almost in toto the reconstruc-

tion policy of Lincoln. Under Lincoln pro- By THE PRESIDENT OF THE UNITED

visional governments had been established in STATES OF AMERICA. four States: Louisiana, Tennessee, Arkansas and A PROCLAMATION. Virginia. May 29, 1865, Johnson issued his

Amnesty Proclamation, and the same day a Whereas the fourth section of the fourth proclamation organizing a provisional govern- article of the Constitution of the United ment for North Carolina. Within the next two States declares that the United States shall months similar proclamations for the other six guarantee to every State in the Union a restates were issued. On reconstruction in South pyblican form of government and shall proCarolina see J. P. Hollis, Early Reconstruction tect each of them against invasion and do-

a ; tl, mestic violence; and

Period in South Carolina; J. S. Reynolds, Re- . ;

construction in South Carolina; F. P. Simkins Whereas the President of the United

and R. H. Woody, South Carolina during Re- . ge

construction. For special studies of reconstruc- States 1S by the Constitution made Com-

tion in other States see bibliography in Mander in Chief of the Army and Navy, as

H. K. Beale, The Critical Year. well as chief civil executive officer of the

PRESIDENTIAL RECONSTRUCTION 9 United States, and is bound by solemn oath as aforesaid no person shall be qualified as faithfully to execute the office of President an elector or shall be eligible as a member

of the United States and to take care that of such convention unless he shall have the laws be faithfully executed; and previously taken and subscribed the oath of Whereas the rebellion which has been amnesty as set forth in the President’s procwaged by a portion of the people of the lamation of May 29, A.D. 1865, and is a United States against the properly consti- voter qualified as prescribed by the constituted authorities of the Government thereof tution and laws of the State of South Caroin the most violent and revolting form, but lina in force immediately before the 17th whose organized and armed forces have now day of November, A.D. 1860, the date of been almost entirely overcome, has in its the so-called ordinance of secession; and the revolutionary progress deprived the people said convention, when convened, or the legof the State of South Carolina of all civil islature that may be thereafter assembled,

government; and will prescribe the qualification of electors Whereas it becomes necessary and proper and the eligibility of persons to hold office to carry out and enforce the obligations of | under the constitution and laws of the State the United States to the people of South —a power the people of the several States Carolina in securing them in the enjoyment composing the Federal Union have rightfully

of a republican form of government: exercised from the origin of the Government Now, therefore, in obedience to the high to the present time. and solemn duties imposed upon me by the And I do hereby direct— Constitution of the United States and for First. That the military commander of the the purpose of enabling the loyal people of department and all officers and persons in said State to organize a State government the military and naval service aid and assist whereby justice may be established, domes- the said provisional governor in carrying tic tranquillity insured, and loyal citizens into effect this proclamation; and they are protected in all their rights of life, liberty, enjoined to abstain from in any way hinderand property, I, Andrew Johnson, President _ ing, impeding, or discouraging the loyal peo-

of the United States and Commander in ple from the organization of a State governChief of the Army and Navy of the United ment as herein authorized. States, do hereby appoint Benjamin F. Perry, Second. That the Secretary of State proof South Carolina, provisional governor of ceed to put in force all laws of the United the State of South Carolina, whose duty it States the administration whereof belongs shall be, at the earliest practicable period, to to the State Department applicable to the prescribe such rules and regulations as may geographical limits aforesaid.

be necessary and proper for convening a Third. That the Secretary of the Treasury convention composed of delegates to be proceed to nominate for appointment asseschosen by that portion of the people of said sors of taxes and collectors of customs and - State who are loyal to the United States, internal revenue and such other officers of and no others, for the purpose of altering the Treasury Department as are authorized or amending the constitution thereof, and by law and put in execution the revenue with authority to exercise within the limits laws of the United States within the geoof said State all the powers necessary and _— graphical limits aforesaid. In making appoint-

proper to enable such loyal people of the ments the preference shall be given to qualiState of South Carolina to restore said State fied loyal persons residing within the districts

tc its constitutional relations to the Federal where their respective duties are to be Government and to present such a republican performed; but if suitable residents of the form of State government as will entitle the districts shall not be found, then persons State to the guaranty of the United States residing in other States or districts shall be therefor and its people to protection by the appointed. United States against invasion, insurrection, Fourth. That the Postmaster-General proand domestic violence: Provided, That in ceed to establish post-offices and post routes any election that may be hereafter held for and put into execution the postal laws of the choosing delegates to any State convention United States within the said State, giving

10 DocUMENTS OF AMERICAN History to loyal residents the preference of appoint- State in all matters within the cognizance

ment; but if suitable residents are not and jurisdiction of the Federal courts. found, then to appoint agents, etc., from sixth. That the Secretary of the Navy take

other States. possession of all public property belonging Fifth. That the district judge for the ju- to the Navy Department within said geo-

dicial district in which South Carolina is in- graphical limits and put in operation all acts cluded proceed to hold courts within said of Congress in relation to naval affairs havState in accordance with the provisions of ing application to the said State.

the act of Congress. The Attorney-General Seventh. That the Secretary of the Inwill instruct the proper officers to libel and terior put in force the laws relating to the bring to judgment, confiscation, and sale Interior Department applicable to the geoproperty subject to confiscation and enforce graphical limits aforesaid.

the administration of justice within said

250. GENERAL GRANT’S OBSERVATIONS ON CONDITIONS IN THE SOUTH December 18, 1865

(U.S. 39th Congress, Ist Session, Sen. Executive Doc. No. 2, p. 107 ff.) In the fall of 1865 President Johnson, anxious whom I met that they not only accepted the a have Teliable information on conatnons in decision arrived at as final, but, now that tough that seton for pores mene the smoke of battle has cleared away and

tion. Among these emissaries were Carl Schurz time has been given for reflection, that this

Harvey M. Watterson, Benjamin C. Truman, decision has been a fortunate one for the Chief Justice Chase, and General Grant, Whole country, they receiving like benefits Schurz’s report was a severe arraignment of the {rom it with those who opposed them in the southern people and a plea for the radical policy field and in council. of reconstruction: it was subsequently revealed Four years of war, during which law was

that he was under financial obligations to the executed only at the point of the bayonet Radicals. The reports of Truman and Watter- throughout the States in rebellion, have left son described the South as pacified and concilia- the people possibly in a condition not to tory, and sustained the Presidential policy of yield that ready obedience to civil authority reconstruction. General Grant left Washington the A . le h lly b on his trip of observation November 29, 1865, american people lave generally Deen in and visited Raleigh, Charleston, Savannah, the habit of yielding. This would render the Augusta, and Atlanta. His report, presented to Presence of small garrisons throughout those the President December 18, was convincing testi- States necessary until such time as labor mony to the wisdom of the Presidential policy. returns to its proper channel, and civil au-

See, L. A. Coolidge, Life of U. S. Grant, thority is fully established. I did not meet

ra, ch. ili. ; .

ch. xxiv. The Report of Schurz is bound to- anyone, either those holding places under the gether with Grant’s; Truman’s Report is in 39th government or citizens of the southern States,

pomeress ess: Sen “oeuine D Th Ne 43. who think it practicable to withdraw the Er, ase > TPs See Le MG. Bowers, Ane “1agic military from the south at present. The white and the black mutually require the . .. 1 am satisfied that the mass of think- protection of the general government.

ing men of the south accept the present There is such universal acquiescence in situation of affairs in good faith. The ques- the authority of the general government tions which have heretofore divided the throughout the portions of country visited by sentiment of the people of the two sections me, that the mere presence of a military —slavery and State rights, or the right of a force, without regard to numbers, is suffiState to secede from the Union—they regard cient to maintain order. The good of the as having been settled forever by the highest country, and economy, require that the force

tribunal—arms—that man can resort to. I kept in the interior, where there are many was pleased to learn from the leading men freedmen, (elsewhere in the southern States

GENERAL GRANT’S OBSERVATIONS 11 than at forts upon the seacoast no force is enforced, securing to the freedmen their necessary,) should all be white troops. The rights and full protection. At present, howreasons for this are obvious without men- ever, it is independent of the military estab-

tioning many of them. The presence of lishment of the country, and seems to be black troops, lately slaves, demoralizes labor, operated by the different agents of the bureau

both by their advice and by furnishing in according to their individual notions. Everytheir camps a resort for the freedmen for where General Howard, the able head of the

long distances around. White troops gen- bureau, made friends by the just and fair erally excite no opposition, and therefore instructions and advice he gave; but the a small number of them can maintain order complaint in South Carolina was that when in a given district. Colored troops must be he left, things went on as before. Many, perkept in bodies sufficient to defend them- haps the majority, of the agents of the Freedselves. It is not the thinking men who would men’s Bureau advise the f reedmen. that by use violence towards any class of troops sent their own industry they must expect to live. among them by the general government, but To this end they endeavor to secure employthe ignorant in some places might; and the ment for them, and to see that both conlate slave seems to be imbued with the idea tracting parties comply with their engagethat the property of his late master should, ments. In some instances, I am sorry to say, by right, belong to him, or at least should the freedman’s mind does not seem to be have no protection from the colored soldier. disabused of the idea that a freedman has There is danger of collisions being brought — the right to live without care or provision for

on by such causes. the future. The effect of the belief in division

My observations lead me to the conclu- of lands is idleness and accumulation in sion that the citizens of the southern States camps, towns, and cities. In such cases I are anxious to return to self-government, think it will be found that vice and disease

within the Union, as soon as possible; that will tend to the extermination or great reducwhilst reconstructing they want and require tion of the colored race. It cannot be exprotection from the government; that they pected that the opinions held by men at the are in earnest in wishing to do what they south for years can be changed in a day, and think is required by the government, not hu- therefore the freedmen require, for a few miliating to them as citizens, and that if such years, not only laws to protect them, but the a course were pointed out they would pur- fostering care of those who will give them ‘sue it in good faith. It is to be regretted that good counsel, and on whom they rely.

there cannot be a greater commingling, at The Freedmen’s Bureau being separated this time, between the citizens of the two from the military establishment of the counsections, and particularly of those intrusted try, requires all the expense of a separate

with the law-making power. organization. One does not necessarily know

I did not give the operations of the Freed- what the other is doing, or what orders they men’s Bureau that attention I would have are acting under. It seems to me this could done if more time had been at my disposal. be corrected by regarding every officer on Conversations on the subject, however, with duty with troops in the southern States as an officers connected with the bureau, lead me agent of the Freedmen’s Bureau, and then

to think that, in some of the States, its have all orders from the head of the bureau affairs have not been conducted with good = sent through department commanders. This judgment or economy, and that the belief would create a responsibility that would sewidely spread among the freedmen of the cure uniformity of action throughout all the southern States, that the lands of their for- south; would insure the orders and instrucmer owners will, at least in part, be divided tions from the head of the bureau being caramong them, has come from the agents of ried out, and would relieve from duty and this bureau. This belief is seriously interfer- pay a large number of employes of the goving with the willingness of the freedmen to ernment. make contracts for the coming year. In some I have the honor to be, very respectfully, form the Freedmen’s Bureau is an absolute your obedient servant,

necessity until civil law is established and U. S. Grant, Lieutenant General.

12 DOCUMENTS OF AMERICAN HIstTorRyY 251. VETO OF FREEDMEN’S BUREAU BILL February 19, 1866 (Richardson, ed. Messages and Papers, Vol. VI, p. 398 ff.) The Freedmen’s Bureau had: been established by United States, acting through the War Deact of Congress, March 3, 1865. February 19, partment and the Commissioner of the Freed1866, a new Freedmen’s Bureau bill, extending men’s Bureau. The agents to carry out this the life of the bureau and enlarging its powers, military jurisdiction are to be selected either

was to the President Johnson. veto he ACivil f ‘vil th . of thispresented bill inaugurated open warfare be- ~10™The the riny OFfErom atte;life: the coun tween the Radicals and President Johnson. try 1s to be divided into districts and sub-

July 16, a supplementary Freedmen’s Bureau Aistricts, and the number of salaried agents Act was passed over the President’s veto. For to be employed may be equal to the number the Frecdmen’s Bureau, see, P. S. Peirce, The of counties or parishes in all the United Freedmen’s Bureau; L. Webster, The Freedmen’s States where freedmen and refugees are to Bureau in South Carolina. For the veto message, be found. see H. Beale, The Critical Year, p. 80 ff.; G. F. The subjects over which this military juris-

Milton, Age of Hate, p. 284 ff. diction is to extend in every part of the WASHINGTON, February 19, 1866. United States include protection to “all em-

To the Senate of the United States: ployees, agents, and officers of this bureau I have examined with care the bill, which in the exercise of the duties imposed” upon originated in the Senate and has been passed them by the bill. In eleven States it is further

by the two Houses of Congress, to amend to extend over all cases affecting freedmen an act entitled “An act to establish a bureau and refugees discriminated against “by local for the relief of freedmen and refugees,” and law, custom, or prejudice.” In those eleven for other purposes. Having with much regret States the bill subjects any white person who come to the conclusion that it would not be may be charged with depriving a freedman consistent with the public welfare to give my of “any civil rights or immunities belonging

approval to the measure, I return the bill to white persons” to imprisonment or fine, to the Senate with my objections to its be- or both, without, however, defining the ‘civil

coming a law... . rights and immunities” which are thus to be I share with Congress the strongest desire secured to the freedmen by military law. This ©

to secure to the freedmen the full enjoy- military jurisdiction also extends to all quesment of their freedom and property and théir tions that may arise respecting contracts. entire independence and equality in making The agent who is thus to exercise the office contracts for their labor, but the bill before of a military judge may be a stranger, enme contains provisions which in my opinion _ tirely ignorant of the laws of the place, and are not warranted by the Constitution and exposed to the errors of judgment to which are not well suited to accomplish the end in all men are liable. The exercise of power over

view. which there is no legal supervision by so vast

The bill proposes to establish by authority a number of agents as is contemplated by of Congress military jurisdiction over all the bill must, by the very nature of man, be parts of the United States containing refu- attended by acts of caprice, injustice, and gees and freedmen. It would by its very na- passion. ture apply with most force to those parts of The trials having their origin under this the United States in which the freedmen bill are to take place without the intervention

most abound, and it expressly extends the ex- of a jury and without any fixed rules of law isting temporary jurisdiction of the Freed- or evidence. The rules on which offenses are men’s Bureau, with greatly enlarged powers, to be “heard and determined” by the numerover those States “in which the ordinary ous agents are such rules and regulations as course of judicial proceedings has been in- the President, through the War Department, terrupted by the rebellion.” The source from shall prescribe. No previous presentment is which this military jurisdiction is to emanate required nor any indictment charging the

is none other than the President of the commission of a crime against the laws; but

VETO OF FREEDMEN’S BUREAU BILL 13 the trial must proceed on charges and specifi- authority of the United States is disputed.

cations. The punishment will be, not what Offenses that may be committed by indithe law declares, but such as a court-martial viduals should not work a forfeiture of the may think proper; and from these arbitrary rights of whole communities. The country tribunals there lies no appeal, no writ of has returned, or is returning, to a state of error to any of the courts in which the Con- peace and industry, and the rebellion is in stitution of the United States vests exclu- fact at an end. The measure, therefore, seems sively the judicial power of the country. to be as inconsistent with the actual condiWhile the territory and the classes of ac- tion of the country as it is at variance with tions and offenses that are made subject to the Constitution of the United States. this measure are so extensive, the bill itself, If, passing from general considerations, we

should it become a law, will have no limita- examine the bill in detail, it is open to tion in point of time, but will form a part of | weighty objections. . . .

the permanent legislation of the country. I I can not but add another very grave obcan not reconcile a system of military juris- jection to this bill. The Constitution imperadiction of this kind with the words of the tively declares, in connection with taxation, Constitution which declare that ‘“‘no person that each State skall have at least one Repshall be held to answer for a capital or other- resentative, and fixes the rule for the number wise infamous crime unless on a presentment to which, in future times, each State shall or indictment of a grand jury, except in cases __ be entitled. It also provides that the Senate arising in the land or naval forces, or in the of the United States shall be composed of militia when in actual service in time of war two Senators from each State, and adds with

or public danger,” and that “in all criminal peculiar force “that no State, without its prosecutions the accused shall enjoy the right consent, shall be deprived of its equal sufto a speedy and public trial by an impartial frage in the Senate.” The original act was

jury of the State and district wherein the necessarily passed in the absence of the

crime shall have been committed.” The safe- States chiefly to be affected, because their guards which the experience and wisdom of people were then contumaciously engaged in ages taught our fathers to establish as se- the rebellion. Now the case is changed, and curities for the protection of the innocent, some, at least, of those States are attending the punishment of the guilty, and the equal Congress by loyal representatives, soliciting administration of justice are to be set aside, the allowance of the constitutional right for and for the sake of a more vigorous inter- representation. At the time, however, of the

position in behalf of justice we are to take consideration and the passing of this bill the risks of the many acts of injustice that there was no Senator or Representative in would necessarily follow from an almost Congress from the eleven States which are countless number of agents established in to be mainly affected by its provisions. The every parish or county in nearly a third of very fact that reports were and are made the States of the Union, over whose decisions against the good disposition of the people of

there is to be no supervision or control by that portion of the country is an additional the Federal courts. The power that would reason why they need and should have reprebe thus placed in the hands of the President sentatives of their own in Congress to exis such as in time of peace certainly ought plain their condition, reply to accusations, and

never to be intrusted to any one man. assist by their local knowledge in the perIf it be asked whether the creation of such fecting of measures immediately affecting a tribunal within a State is warranted as a themselves. While the liberty of deliberation measure of war, the question immediately would then be free and Congress would have presents itself whether we are still engaged full power to decide according to its judgin war. Let us not unnecessarily disturb the ment, there could be no objection urged that commerce and credit and industry of the the States most interested had not been percountry by declaring to the American peo- mitted to be heard. The principle is firmly ple and to the world that the United States fixed in the minds of the American people are still in a condition of civil war. At present that there should be no taxation without there is no part of our country in which the — representation. Great burdens have now to be

14 DocUMENTS OF AMERICAN HisToRy borne by all the country, and we may best _ situation of the country, I feel not only en-

demand that they shall be borne without titled but bound to assume that with the murmur when they are voted by a majority Federal courts restored and those of the of the representatives of all the people. I several States in the full exercise of their would not interfere with the unquestionable functions the rights and interests of all classes right of Congress to judge, each House for of people will, with the aid of the military in itself, “of the elections, returns, and qualifi- cases of resistance to the laws, be essentially

cations of its own members;” but that au- protected against unconstitutional infringethority can not be construed as including the ment or violation. Should this expectation right to shut out in time of peace any State unhappily fail, which I do not anticipate, from the representation to which it is en- then the Executive is already fully armed

titled by the Constitution. . .. with the powers conferred by the act of The bill under consideration refers to cer- March, 1865, establishing the Freedmen’s tain of the States as though they had not Bureau, and hereafter, as heretofore, he can

“been fully restored in all their constitu. employ the land and naval forces of the tional relations to the United States.” If they country to suppress insurrection or to overhave not, let us at once act together to secure come obstructions to the laws.

that desirable end at the earliest possible In accordance with the Constitution, I remoment. It is hardly necessary for me to turn the bill to the Senate, in the earnest inform Congress that in my own judgment hope that a measure involving questions and most of those States, so far, at least, as de- interests so important to the country will not pends upon their own action, have already become a law, unless upon deliberate conbeen fully restored, and are to be deemed sideration by the people it shall receive the as entitled to enjoy their constitutional rights sanction of an enlightened public judgment.

as members of the Union. Reasoning from ANDREW JOHNSON. the Constitution itself and from the actual

252. THE CIVIL RIGHTS ACT April 9, 1866 (U. S. Statutes at Large, Vol. XIN, p. 27 ff.) This measure, designed to protect the freedmen tion of slavery or involuntary servitude, ex-

from such discriminating legislation as the cept as a punishment for crime whereof the Black codes, was first passed March 13. It was party shall have been duly convicted, shall vetoed by President Johnson (Doc. No. 253), and have the same right, in every State and Terri-

passed over his veto April 9. The act conferred tory in the United States, to make and encitizenship upon the negroes, legislation necessi- f b . d gi tated by the Dred Scott decision. Doubt as to orce contracts, to sue, be parties, and give the constitutionality of the measure induced €Vidence, to inherit, purchase, lease, sell, hold, Congress to enact most of its provisions into the and convey real and personal property, and Fourteenth Amendment. See, H. E. Flack, to full and equal benefit of all laws and proAdoption of the Fourteenth Amendment; H. ceedings for the security of person and propWhite, Life of Lyman Trumbull; J. F. Rhodes, erty, as is enjoyed by white citizens, and History of the United States, Vol. V, 583 ff. shall be subject to like punishment, pains, and penalties, and to none other, any law, An Act to protect all Persons in the United statute, ordinance, regulation, or custom, to States in their Civil Rights, and furnish the contrary notwithstanding.

the Means of their Vindication. SEC. 2. And be it further enacted, That Be it enacted, That all persons born in the any person who, under color of any law, United States and not subject to any foreign statute, ordinance, regulation, or custom, power, excluding Indians not taxed, are shall subject, or cause to be subjected, any hereby declared to be citizens of the United inhabitant of any State or Territory to the States; and such citizens, of every race and deprivation of any right secured or protected color, without regard to any previous condi- by this act, or to different punishment, pains,

VETO OF THE Civit RicuTs Act 15 or penalties on account of such person having _ proceedings against all and every person who

at any time been held in a condition of slav- shall violate the provisions of this act, and ery or involuntary servitude, except as a pun- _cause him or them to be arrested and impris-

ishment for crime whereof the party shall oned, or bailed, as the case may be, for trial have been duly convicted, or by reason of his before such court of the United States or color or race, than is prescribed for the pun- territorial court as by this act has cognizance ishment of white persons, shall be deemed of the offence... . . guilty of a misdemeanor, and, on conviction, SEc. 8. And be it further enacted, That shall be punished by fine not exceeding one whenever the President of the United States thousand dollars, or imprisonment not ex- shall have reason to believe that offences ceeding one year, or both, in the discretion have been or are likely to be committed

of the court. against the provisions of this act within any

SEC. 3. And be it further enacted, That judicial district, it shall be lawful for him, in the district courts of the United States, ... his discretion, to direct the judge, marshal, shall have, exclusively of the courts of the and district attorney of such district to atseveral States, cognizance of all crimes and tend at such place within the district, and offences committed against the provisions of | for such time as he may designate, for the this act, and also, concurrently with the cir- purpose of the more speedy arrest and trial cuit courts of the United States, of all causes, of persons charged with a violation of this civil and criminal, affecting persons who are act; and it shall be the duty of every judge denied or cannot enforce in the courts or or other officer, when any such requisition

judicial tribunals of the State or locality shall be received by him, to attend at the where they may be any of the rights secured place and for the time therein designated.

to them by the first section of this act... . SEC. 9. And be it further enacted, That it SEc. 4. And be it further enacted, That shall be lawful for the President of the the district attorneys, marshals, and deputy United States, or such person as he may emmarshals of the United States, the commis- power for that purpose, to employ such part

sioners appointed by the circuit and terri- of the land or naval forces of the United

torial courts of the United States, with pow- States, or of the militia, as shall be necessary

ers of arresting, imprisoning, or bailing to prevent the violation and enforce the due Offenders against the laws of the United execution of this act. States, the officers and agents of the Freed- SEC. 10. And be it further enacted, That

men’s Bureau, and every other officer who upon all questions of law arising in any cause may be specially empowered by the President under the provisions of this act a final appeal

of the United States, shall be, and they are may be taken to the Supreme Court of the hereby, specially authorized and required, at United States. the expense of the United States, to institute

253. VETO OF THE CIVIL RIGHTS ACT March 27, 1866 (Richardson, ed. Messages and Papers, Vol. VI, p. 405 ff.) WasHINGTON, D. C., March 27, 1866. Senate, the House in which it originated, To the Senate of the United States: with my objections to its becoming a law. I regret that the bill, which has passed both By the first section of the bill all persons Houses of Congress, entitled “An act to pro- born in the United States and not subject to tect all persons in the United States in their any foreign power, excluding Indians not

civil rights and furnish the means of their taxed, are declared to be citizens of the vindication,” contains provisions which I can United States... . It does not purport to not approve consistently with my sense of give these classes of persons any status as duty to the whole people and my obligations citizens of States, except that which may reto the Constitution of the United States. I sult from their status as citizens of the United am therefore constrained to return it to the States. The power to confer the right of State

16 DocUMENTS OF AMERICAN History citizenship is just as exclusively with the sev- rights are “to make and enforce contracts; eral States as the power to confer the right of to sue, be parties, and give evidence; to in-

Federal citizenship is with Congress. herit, purchase, lease, sell, hold, and convey The right of Federal citizenship thus to be real and_ personal property,” and to have conferred on the several excepted races be- “full and equal benefit of all laws and profore mentioned is now for the first time pro- ceedings for the security of person and propposed to be given by law. If, as is claimed by _ erty as is enjoyed by white citizens.” So, too,

many, all persons who are native born al- they are made subject to the same punishready are, by virtue of the Constitution, ment, pains, and penalties in common with citizens of the United States, the passage of white citizens, and to none other. Thus a the pending bill can not be necessary to make _ perfect equality of the white and colored them such. If, on the other hand, such per- races is attempted to be fixed by Federal law sons are not citizens, as may be assumed in every State of the Union over the vast from the proposed legislation to make them field of State jurisdiction covered by these such, the grave question presents itself enumerated rights. In no one of these can whether, when eleven of the thirty-six States any State ever exercise any power of discrim-

are unrepresented in Congress at the present ination between the different races... .

time, it is sound policy to make our entire Hitherto every subject embraced in the colored population and all other excepted enumeration of rights contained in this bill classes citizens of the United States. Four has been considered as exclusively belonging millions of them have just emerged from to the States. They all relate to the internal Slavery into freedom. ... It may also be police and economy of the respective States. asked whether it is necessary that they should They are matters which in each State conbe declared citizens in order that they may cern the domestic condition of its people, be secured in the enjoyment of the civil varying in each according to its own peculiar rights proposed to be conferred by the bill. circumstances and the safety and well-being Those rights are, by Federal as well as State of its own citizens. I do not mean to Say laws, secured to all domiciled aliens and for- that upon all these subjects there are not eigners, even before the completion of the Federal restraints—as, for instance, in the process of naturalization; and it may safely State power of legislation over contracts be assumed that the same enactments are’ there is a Federal limitation that no State sufficient to give like protection and benefits shall pass a law impairing the obligations of

to those for whom this bill provides special contracts; and, as to crimes, that no State legislation. Besides, the policy of the Gov- shall pass an ex post facto law; and, as to ernment from its origin to the present time money, that no State shall make anything seems to have been that persons who are but gold and silver a legal tender; but where strangers to and unfamiliar with our institu- can we find a Federal prohibition against the

tions and our laws should pass through a _ power of any State to discriminate, as do certain probation, at the end of which, before most of them, between aliens and citizens, beattaining the coveted prize, they must give tween artificial persons, called corporations, evidence of their fitness to receive and to and natural persons, in the right to hold real

exercise the rights of citizens as contem- estate? If it be granted that Congress can plated by the Constitution of the United repeal all State laws discriminating between States. The bill in effect proposes a discrim- whites and blacks in the subjects covered by ination against large numbers of intelligent, this bill, why, it may be asked, may not Conworthy, and patriotic foreigners, and in favor gress repeal in the same way all State laws of the negro, to whom, after long years of discriminating between the two races on the

bondage, the avenues to freedom and in- subjects of suffrage and office? If Congress telligence have just now been suddenly can declare by law who shall hold lands, who

opened. ... shall testify, who shall have capacity to make

The first section of the bill also contains an a contract in a State, then Congress can by enumeration of the rights to be enjoyed by law also declare who, without regard to color these classes so made citizens “in every State or race, shall have the right to sit as a juror and Territory in the United States.” These or as a judge, to hold any office, and, finally,

VETO OF THE Civit RIGHTS ACT 17 to vote “in every State and Territory of the and punish him under any other law. Then United States.” As respects the Territories, resort is to be had to “the common law, as they come within the power of Congress, for modified and changed” by State legislation, as to them the lawmaking power is the Fed- “so far as the same is not inconsistent with eral power; but as to the States no similar the Constitution and laws of the United provision exists vesting in Congress the power States.” So that over this vast domain of “to make rules and regulations” for them. criminal jurisprudence provided by each The object of the second section of the bill State for the protection of its own citizens is to afford discriminating protection to col- and for the punishment of all persons who ored persons in the full enjoyment of all the violate its criminal laws, Federal law, whenrights secured to them by the preceding sec- ever it can be made to apply, displaces State

tion. ... law. The question here naturally arises, from

This provision of the bill seems to be un- what source Congress derives the’power to necessary, as adequate judicial remedies’ transfer to Federal tribunals certain classes could be adopted to secure the desired end of cases embraced in this section. . . . This without invading the immunities of legisla- section of the bill undoubtedly comprehends tors, always important to be preserved in the cases and authorizes the exercise of powers interest of public liberty; without assailing that are not, by the Constitution, within the the independence of the judiciary, always es- jurisdiction of the courts of the United

sential to the preservation of individual States. To transfer them to those courts

rights; and without impairing the efficiency would be an exercise of authority well calof ministerial officers, always necessary for culated to excite distrust and alarm on the the maintenance of public peace and order. part of all the States, for the bill applies alike The remedy proposed by this section seems to all of them—as well to those that have as to be in this respect not only anomalous, but to those that have not been engaged in reunconstitutional; for the Constitution guar- bellion. .. . antees nothing with certainty if it does not The fourth section of the bill provides that insure to the several States the right of mak- officers and agents of the Freedmen’s Bureau ing and executing laws in regard to all mat- shall be empowered to make arrests, and also ters arising within their jurisdiction, subject that other officers may be specially commisonly to the restriction that in cases of con- sioned for that purpose by the President of flict with the Constitution and constitutional the United States. It also authorizes circuit laws of the United States the latter should be courts of the United States and the superior held to be the supreme law of the land. ... courts of the Territories to appoint, without

It is clear that in States which deny to limitation, commissioners, who are to be persons whose rights are secured by the first charged with the performance of quasi jusection of the bill any one of those rights all _dicial duties. The fifth section empowers the _ criminal and civil cases affecting them will, commissioners so to be selected by the courts by the provisions of the third section, come to appoint in writing, under their hands, one under the exclusive cognizance of the Fed- or more suitable persons from time to time to eral tribunals. It follows that if, in any State execute warrants and other processes dewhich denies to a colored person any one of _ scribed by the bill. These numerous official all those rights, that person should commit a agents are made to constitute a sort of pocrime against the laws of a State—murder, lice, in addition to the military, and are auarson, rape, or any other crime—all protec- thorized to summon a posse comitatus, and tion and punishment through the courts of even to call to their aid such portion of the the State are taken away, and he can only be land and naval forces of the United States, tried and punished in the Federal courts. or of the militia, ‘as may be necessary to the How is the criminal to be tried? If the of- performance of the duty with which they are fense is provided for and punished by Fed- charged.” This extraordinary power is to be eral law, that law, and not the State law, is conferred upon agents irresponsible to the to govern. It is only when the offense does Government and to the people, to whose not happen to be within the purview of Fed- number the discretion of the commissioners eral law that the Federal courts are to try is the only limit, and in whose hands such

18 DOCUMENTS OF AMERICAN HISTORY authority might be made a terrible engine of race. In fact, the distinction of race and

wrong, oppression, and fraud... . color is by the bill made to operate in favor The ninth section authorizes the President, of the colored and against the white race. or such person as he may empower for that They interfere with the municipal legislation purpose, “to employ such part of the land or of the States, with the relations existing ex-

naval forces of the United States, or of the clusively between a State and its citizens, or militia, as shall be necessary to prevent the between inhabitants of the same State—an violation and enforce the due execution of absorption and assumption of power by the this act.” This language seems to imply a General Government which, if acquiesced in, permanent military force, that is to be always must sap and destroy our federative system at hand, and whose only business is to be the of limited powers and break down the barenforcement of this measure over the vast riers which preserve the rights of the States.

region where it is intended to operate. ... It is another step, or rather stride, toward In all our history, in all our experience as centralization and the concentration of all a people living under Federal and State law, legislative powers in the National Governno such system as that contemplated by the ment. The tendency of the bill must be to details of this bill has ever before been pro- resuscitate the spirit of rebellion and to arposed or adopted. They establish for the se- rest the progress of those influences which curity of the colored race safeguards which are more closely drawing around the States

go infinitely beyond any that the General the bonds of union and peace... .

Government has ever provided for the white ANDREW JOHNSON. 254. REPORT OF THE JOINT COMMITTEE ON RECONSTRUCTION June 20, 1866 (Report of the Joint Committee on Reconstruction, p. 4 ff.) A Committee of six Senators and nine Represen- thereof have a right to immediate representatatives, of which Senator Fessenden was chair- tion in Congress without the interposition man, was appointed in December 1865 “to in- of any conditions whatever. . . . It has even

quire into the condition of the states which been contended that until such admission all formed the so-called Confederate States of legislation affecting their interests is, if not America, and report whether they, or any of ae '; “astifiabl d them, are entitled to be represented in either unconstitutional, at least unjustifiable an house of Congress.” The Report recommended OPPIESSIVE.

that the Confederate states were not entitled to It is believed by your Committee that these representation; it also maintained the authority propositions are not only wholly untenable, of Congress, rather than of the Executive, over but, if admitted, would tend to the destructhe process of reconstruction. The Report was tion of the government. ... It cannot, we published separately, and also with a volu- think, be denied that the war thus waged was

minous body of testimony collected by 3B a civil war of the greatest magnitude. The

Se ee ee ue aj Peole waging it were necessary subject t Fifteen on Reconstruction. all the rules which, by the law of nations, control a contest of that character, and to all

A claim for the immediate admission of the legitimate consequences following it. One

senators and representatives from th. se- of these consequences was that, within the called Confederate States has been u. ‘mits prescribed by humanity, the conquered which seems to your committee not to cebels were at the mercy of the conquer-

founded either in reason or in law, aud ors....

which cannot be passed without comment. It is moreover contended .. . that from Stated in a few words, it amounts to this: the peculiar nature and character of our That inasmuch as the lately insurgent States government ... from the moment rebellion

had no legal right to separate themselves lays down its arms and actual hostilities from the Union, they still retain their posi- cease all political rights of rebellious commution as States, and consequently the people nities are at once restored; that because the

| REPORT OF JOINT COMMITTEE ON RECONSTRUCTION 19 people of a state of the Union were once an the observance of which has been hitherto organized community within the Union, they required. necessarily so remain, and their right to be III. That Congress would not be justified represented in Congress at any and all times, in admitting such communities to a particiand to participate in the government of the pation in the government of the country withcountry under all circumstances, admits of out first providing such constitutional or neither question nor dispute. If this is in- other guarantees as will tend to secure the deed true, then is the government of the civil rights of all citizens of the republic; a United States powerless for its own protec- just equality of representation; protection

tion, and flagrant rebellion, carried to the against claims founded in rebellion and extreme of civil war, is a pastime which any crime; a temporary restoration of the right state may play at, not only certain that it of suffrage to those who have not actively can lose nothing in any event, but may even participated in the efforts to destroy the be the gainer by defeat. If rebellion succeeds Union and overthrow the government, and it accomplishes its purpose and destroys the the exclusion from position of public trust government. If it fails, the war has been of, at least, a portion of those whose crimes

barren of results, and the battle may still have proved them to be enemies of the be fought out in the legislative halls of the Union, and unworthy of public confcountry. Treason, defeated in the field, has dence. ...

only to take possession of Congress, and the We now propose to re-state, as briefly as

cabinet. possible, the general facts and principles apYour committee do not deem it either nec- _ plicable to all the States recently in rebellion: essary or proper to discuss the question ... Third. Having voluntarily deprived

whether the late Confederate States are still themselves of representation in Congress for States of this Union, or can ever be other- the criminal purpose of destroying the Union, wise. Granting this profitless abstraction and having reduced themselves, by the act of

about which so many words have been levying war, to the condition of public enewasted, it by no means follows that the peo- mies, they have no right to complain of temple of those States may not place themselves porary exclusion from Congress; but on the

in a position to abrogate the powers and contrary... the burden now rests upon

privileges incident to a State of the Union, — them, before claiming to be reinstated in their

and deprive themselves of all pretence of former condition, to show that they are qualiright to exercise those powers and enjoy those fied to resume federal relations... .

privileges... . Fourth. Having . . . forfeited all civil and Equally absurd is the pretence that the political rights and privileges under the fedlegislative authority of the nation must be in- eral Constitution, they can only be restored operative so far as they are concerned, while thereto by the permission and authority of they, by their own act, have lost the right to that constitutional power against which they take part in it. Such a proposition carries its rebelled and by which they were subdued.

own refutation on its face... . Fifth. These rebellious enemies were conIt is the opinion of your committee— quered by the people of the United States I. That the States lately in rebellion were, acting through all the co-ordinate branches at the close of the war, disorganized com- of the government, and not by the executive munities, without civil government, and department alone. The powers of conqueror without constitutions or other forms, by vir- are not so vested in the President that he can tue of which political relation could legally fix and regulate the terms of settlement and exist between them and the federal govern- confer congressional representation on con-

ment. quered rebels and traitors. . . . The authorIl. That Congress cannot be expected to ity to restore rebels to political power in the recognize as valid the clection of representa- federal Government can be exercised only tives from disorganized communities, which, with the concurrence of all the departments from the very nature of the case, were un- in which political power is vested. .. .

able to present their claim to representation ... Eighth. ... No proof has been afunder those established and recognized rules, forded to Congress of a constituency in any

20 DOCUMENTS OF AMERICAN History one of the so-called Confederate States, un- tional form of government is thereby pracless we except the State of Tennessee, quali- tically destroyed, and its power absorbed in fied to elect senators and representatives in the Executive... . Congress. No State Constitution, or amend- Ninth. The necessity of providing adequate ment to a State Constitution, has had the safeguards for the future, before restoring the sanction of the people. All the so-called legis- insurrectionary States to a participation in lation of State conventions and legislatures the direction of public affairs, is apparent has been had under military dictation. If the from the bitter hostility to the government President may, at his will and under his own and people of the United States yet existing authority, whether as military commander or throughout the conquered territory. . . . chief executive, qualify persons to appoint Tenth. The conclusion of your committee senators and elect representatives, and em- therefore is, that the so-called Confederate power others to appoint and elect them, he States are not, at present, entitled to reprethereby practically controls the organization sentation in the Congress of the United of the legislative department. The constitu- States... .

255. PRESIDENT JOHNSON ON THE RESTORATION OF THE SOUTHERN STATES TO THE UNION

| Second Annual Message to Congress December 3, 1866 (Richardson, ed. Messages and Papers, Vol. VI, p. 445 ff.) WASHINGTON, December 3, 1866. yet remained to be done before the work of Fellow-Citizens of the Senate and House of restoration could be completed, and that was

Representatives: the admission to Congress of loyal Senators

. .. In my message of the 4th of Decem- and Representatives from the States whose ber, 1865, Congress was informed of the people had rebelled against the lawful aumeasures which had been instituted by the thority of the General Government. This Executive with a view to the gradual restora- question devolved upon the respective tion of the States in which the insurrection Houses, which by the Constitution are made occurred to their relations with the General the judges of the elections, returns, and Government. Provisional governors had been qualifications of their own members, and its appointed, conventions called, governors consideration at once engaged the attention elected, legislatures assembled, and Senators of Congress... . and Representatives chosen to the Congress All of the States in which the insurrecof the United States. Courts had been opened tion had existed promptly amended their for the enforcement of laws long in abey- constitutions so as to make them conform ance. The blockade had been removed, cus- to the great change thus effected in the ortom-houses reestablished, and the internal- ganic law of the land; declared null and void revenue laws put in force, in order that the all ordinances and laws of secession; repudipeople might contribute to the national in- ated all pretended debts and obligations crecome. Postal operations had been renewed, ated for the revolutionary purposes of the and efforts were being made to restore them insurrection, and proceeded in good faith to to their former condition of efficiency. The the enactment of measures for the protection States themselves had been asked to take and amelioration of the condition of the’ colpart in the high function of amending the ored race. Congress, however, yet hesitated Constitution, and of thus sanctioning the ex- to admit any of these States to representa-

tinction of African slavery as one of the tion, and it was not until toward the close legitimate results of our internecine struggle. of the eighth month of the session that an Having progressed thus far, the executive exception was made in favor of Tennessee department found that it had accomplished by the admission of her Senators and Reprenearly all that was within the scope of its sentatives. constitutional authority. One thing, however, I deem it a subject of profound regret that

JOHNSON ON RESTORATION OF SOUTHERN STATES 21 Congress has thus far failed to admit to seats was significant, that the war was not “waged loyal Senators and Representatives from the upon our part in any spirit of oppression, nor other States whose inhabitants, with those of for any purpose of conquest or subjugation, Tennessee, had engaged in the rebellion. Ten nor purpose of overthrowing or interfering States—more than one-fourth of the whole with the rights or established institutions of number—remain without representation; the those States, but to defend and maintain the seats of fifty members in the House of Rep- supremacy of the Constitution and all laws resentatives and of twenty members in the made in pursuance thereof, and to preserve Senate are yet vacant, not by their own con- the Union, with all the dignity, equality, and sent, not by a failure of election, but by the rights of the several States unimpaired; and refusal of Congress to accept their creden- that as soon as these objects” were ‘‘accom-

tials. Their admission, it is believed, would plished the war ought to cease.” ... have accomplished much toward the renewal The action of the executive department of and strengthening of our relations as one peo- the Government upon this subject has been ple and removed serious cause for discontent equally definite and uniform, and the puron the part of the inhabitants of those States. pose of the war was specifically stated in the It would have accorded with the great prin- proclamation issued by my predecessor on ciple enunciated in the Declaration of Ameri- the 2nd day of September, 1862. It was then can Independence that no people ought to solemnly proclaimed and declared “that herebear the burden of taxation and yet be denied after, as heretofore, the war will be prosethe right of representation. It would have cuted for the object of practically restoring been in consonance with the express provi- the constitutional relation between the United sions of the Constitution that “each State States and each of the States and the people shall have at least one Representative” and thereof in which States that relation is or “that no State, without its consent, shall be may be suspended or disturbed.” deprived of its equal suffrage in the Senate.” The recognition of the States by the juThese provisions were intended to secure to dicial department of the Government has every State and to the people of every State also been clear and conclusive in all proceedthe right of representation in each House of ings affecting them as States had in the SuCongress; and so important was it deemed by _ preme, circuit, and district courts.

the framers of the Constitution that the In the admission of Senators and Repre-

equality of the States in the Senate should be — sentatives from any and all of the States preserved that not even by an amendment there can be no just ground of apprehension of the Constitution can any State, without its that persons who are disloyal will be clothed consent, be denied a voice in that branch of | with the powers of legislation, for this could

the National Legislature. not happen when the Constitution and the

It is true it has been assumed that the ex- laws are enforced by a vigilant and faithful istence of the States was terminated by the Congress. Each House is made the “judge of rebellious acts of their inhabitants, and that, the elections, returns, and qualifications of its the insurrection having been suppressed, they own members,” and may, “with the concurwere thenceforward to be considered merely rence of two-thirds, expel a member.” .. .

as conquered territories. The legislative, ex- The Constitution of the United States ecutive, and judicial departments of the Gov- makes it the duty of the President to recomernment have, however, with great distinct- mend to the consideration of Congress “such ness and uniform consistency, refused to measures as he shall judge necessary and exsanction an assumption so incompatible with pedient.” I know of no measure more imthe nature of our republican system and with _peratively demanded by every consideration the professed objects of the war. Throughout of national interest, sound policy, and equal the recent legislation of Congress the unde- justice than the admission of loyal members

niable fact makes itself apparent that these from the now unrepresented States. This ten political communities are nothing less would consummate the work of restoration than States of this Union. At the very com- and exert a most salutary influence in the remencement of the rebellion each House de- establishment of peace, harmony, and fraclared, with a unanimity as remarkable as it ternal feeling. It would tend greatly to renew

22 DOCUMENTS OF AMERICAN HISTORY the confidence of the American people in the should be cautious, lest, having rescued our

vigor and stability of their institutions. It nation from perils of threatened disintegrawould bind us more closely together as a_ tion, we resort to consolidation, and in the nation and enable us to show to the world the end absolute despotism, as a remedy for the inherent and recuperative power of a gov- recurrence of similar troubles. The war havernment founded upon the will of the people ing terminated, and with it all occasion for and established upon the principles of liberty, the exercise of powers of doubtful constitu-

justice, and intelligence. .. . tionality, we should hasten to bring legisla-

In our efforts to preserve “the unity of tion within the boundaries prescribed by the government which constitutes us one peo- Constitution and to return to the ancient ple” by restoring the States to the condition landmarks established by our fathers for the which they held prior to the rebellion, we guidance of succeeding generations. ...

256. EX PARTE MILLIGAN 4 Wallace, 2 1866

Certificate from the United States circuit court to a correct conclusion of a purely judicial for the District of Indiana. By an act of March question. Then, considerations of safety were 3, 1863, Congress authorized the President to mingled with the exercise of power; and feelsuspend the writ of habeas corpus, and under ings and interests prevailed which are happily this Lincoln, 15, ' ‘nated. N that th bli fety3s| 1863,authority suspendedPresident the writ in cases whereSeptember officers erminate | NOW, Wa © pubic satety held persons for offenses against the military or assured, this question, as well as all others, naval service. Milligan, a civilian, was arrested, © be discussed and decided without passion tried by a military commission, found guilty of or the admixture of any element not required fomenting insurrection, and sentenced to be to form a legal judgment. We approach the hanged. He petitioned the United States circuit investigation of this case, fully sensible of the

court for a writ of habeas corpus. magnitude of the inquiry and the necessity of The decision of the Court in this case, one of — fyJ] and cautious deliberation... .

the most notable in our history, condemned The controlling question in the case is this:

military tribunals in sections where the civil U h ts stated in Milligan’ titi courts were open, and, by implication, raised pon the j POS STACI MUNG AD'S PEULON, serious doubts as to the legality of Congressional and the exhibits filed, had the military comreconstruction. A thorough discussion of the case ™ission mentioned in it jurisdiction, legally,

can be found in The Milligan Case, ed. by to try and sentence him? Milligan, not a resiS. Klaus. See also in this connection the opinion dent of one of the rebellious states, or a of Taney in ex parte Merryman, Doc. No. 209. prisoner of war, but a citizen of Indiana for A standard work on the constitutional problems twenty years past, and never in the military of the war is W. Whiting, War Powers under the or naval service, is, while at his home, arConstitution of the United States. An excellent rested by the military power of the United briefer discussion be Reconstrucfound in W. A.imprisoned, Dun- ; .ang, q tain criminal ning, Essays on the Civil can War and States, On Certain na tion, chs. i, li. On Copperhead activities see I. W. charges preferred against him, tried, conAyer, The Great Northwest Conspiracy; F. A. Victed, and sentenced to be hanged by a miliStiger, History of the Order of Sons of Liberty; tary commission, organized under the direcJ. L. Vallandigham, Life of Clement L. Vallan- tion of the military commander of the

digham. military district of Indiana. Had this tribunal the legal power and authority to try and punish

Davis, J.... The importance of the this man?

main question presented by this record can- No graver question was ever considered by not be overstated; for it involves the very this court, nor one which more nearly conframework of the government and the funda- cerns the rights of the whole people; for it is mental principles of American liberty. the birthright of every American citizen when During the late wicked rebellion, the tem- charged with crime, to be tried and punished per of the times did not allow that calmness according to law. The power of punishment is in deliberation and discussion so necessary alone through the means which the laws have

Ex PartTE MILLIGAN 23 provided for that purpose, and if they are granted to it which are necessary to preserve ineffectual, there is an immunity from pun- its existence; as has been happily proved by ishment no matter how great an offender the the result of the great effort to throw off its individual may be, or how much his crimes just authority.

may have shocked the sense of justice of Have any of the rights guaranteed by the the country, or endangered its safety. By the Constitution been violated in the case of protection of the law human rights are se- Milligan? and if so, what are they?

cured; withdraw that protection, and they Every trial involves the exercise of Juare at the mercy of wicked rulers, or the dicial power; and from what source did the clamor of an excited people. If there was military commission that tried him derive law to justify this military trial, it is not our their authority? Certainly no part of the juprovince to interfere; if there was not, it is dicial power of the country was conferred on our duty to declare the nullity of the whole them; because the Constitution expressly proceedings. The decision of this question — vests it “in one Supreme Court and such indoes not depend on argument or judicial ferior courts as the Congress may from time precedents, numerous and highly illustrative to time ordain and establish,” and it is not as they are. These precedents inform us of pretended that the commission was a court the extent of the struggle to preserve liberty, ordained and established by Congress. They and to relieve those in civil life from military cannot justify on the mandate of the Presitrials. The founders of our government were dent, because he is controlled by law, and has familiar with the history of that struggle, and his appropriate sphere of duty, which is to secured in a written Constitution every right execute, not to make, the laws; and there is which the people had wrested from power “no unwritten criminal code to which resort during a contest of ages. By that Constitu- can be had as a source of jurigdiction.” tion and the laws authorized by it this ques- But it is said that the jurisdiction is comtion must be determined. The provisions of plete under the “laws and usages of war.”

that instrument on the administration of It can serve no useful purpose to inquire criminal justice are too plain and direct what those laws and usages are, whence they to leave room for misconstruction or doubt of _ originated, where found, and on whom they their true meaning. Those applicable to this operate; they can never be applied to citizens

case are found in that clause of the original in states which have upheld the authority of Constitution which says, “That the trial of the government, and where the courts are all crimes, except in case of impeachment, open and their process unobstructed. This shall be by jury’; and in the fourth, fifth,and court has judicial knowledge that in Indiana

sixth articles of the amendments... . the federal authority was always unopposed,

Time has proven the discernment of our and its courts always open to hear criminal ancestors; for even these provisions, ex- accusations and redress grievances; and no pressed in such plain English words, that it usage of war could sanction a military trial would seem the ingenuity of man could not there for any offense whatever of a citizen in evade them, are now, after the lapse of more civil life, in nowise connected with the milithan seventy years, sought to be avoided. tary service. Congress could grant no such ... The Constitution of the United States power; and to the honor of our national legisis a law for rulers and people, equally in war lature be it said, it has never been provoked and in peace, and covers with the shield of its by the state of the country even to attempt protection all classez of men, at all times, its exercise. One of the plainest constitutional and under all circumstances. No doctrine in- provisions was, therefore, infringed when volving more pernicious consequences was Milligan was tried by a court not ordained ever invented by the wit of man than that and established by Congress, and not comany of its provisions can be suspended during posed of judges appointed during good beany of the great exigencies of government. havior.

Such a doctrine leads directly to anarchy or Why was he not delivered to the circuit despotism, but the theory of necessity on court of Indiana to be proceeded against acwhich it is based is false; for the government, cording to law? No reason of necessity could within the Constitution, has all the powers be urged against it; because Congress had de-

24 DOCUMENTS OF AMERICAN HISTORY clared penalties against the offenses charged, armed force (if, in his opinion, the exigencies provided for their punishment, and directed of the country demand it, and of which he is that court to hear and determine them. And to judge) has the power, within the lines of soon after this military tribunal was ended, his military district, to suspend all civil rights the circuit court met, peacefully transacted and their remedies, and subject citizens as its business, and adjourned. It needed no well as soldiers to the rule of is will; and in bayonets to protect it, and required no mili- _ the exercise of his lawful authority cannot be tary aid to execute its judgments. It was held restrained, except by his superior officer or in a state, eminently distinguished for pa- the President of the United States.

triotism, by judges commissioned during the If this position is sound to the extent rebellion who were provided with juries, up- claimed, then when war exists, foreign or do-

right, intelligent, and selected by a marshal mestic, and the country is subdivided into appointed by the President. The government military departments for mere convenience, had no right to conclude that Milligan, if the commander of one of them can, if he guilty, would not receive in that court mer- chooses, within his limits, on the plea of ited punishment; for its records disclose that necessity, with the approval of the Executive,

it was constantly engaged in the trial of substitute military force for, and to the exsimilar offenses, and was never interrupted clusion of, the laws, and punish all persons, as in its administration of criminal justice. If it he thinks right and proper, without fixed or was dangerous, in the distracted condition of certain rules. affairs, to leave Milligan unrestrained of his The statement of this proposition shows its liberty, because he ‘conspired against the importance; for, if true, republican governgovernment, afforded aid and comfort to ment isa failure, and there is an end of liberty rebels, and incited the people to insurrection,” regulated by law. Martial law, established the Jaw said, arrest him, confine him closely, on such a basis, destroys every guaranrender him powerless to do further mischief; tee of the Constitution, and effectually renand then present his case to the grand jury’ ders the “military independent of, and suof the district, with proofs of his guilt, and, .perior to, the civil power,’—the attempt to if indicted, try him according to the course of | do which by the king of Great Britain was the common law. If this had been done, the deemed by our fathers such an offense, that Constitution would have been vindicated, the they assigned it to the world as one of the law of 1863 enforced, and the securities for causes which impelled them to declare their personal liberty preserved and defended. independence. Civil liberty and this kind of Another guarantee of freedom was broken martial law cannot endure together; the anwhen Milligan was denied a trial by jury. The tagonism is irreconcilable; and, in the congreat minds of the country have differed on flict, one or the other must perish. the correct interpretation to be given to the This nation, as experience has proved, canvarious provisions of the federal Constitu- not always remain at peace, and has no right tion; and judicial decision has been often in- to expect that it will always have wise and voked to settle their true meaning; but until humane rulers, sincerely attached to the prinrecently no one ever doubted that the mght ciples of the Constitution. Wicked men, amof trial by jury was forfeited in the organic bitious of power, with hatred of liberty and law against the power of attack. It is mow as- contempt of law, may fill the place once ocsailed; but if ideas can be expressed in words, cupied by Washington and Lincoln; and if and language has any meaning, this right— this right is conceded, and the calamities of one of the most valuable in a free country— war again befall us, the dangers to human is preserved to every one accused of crime liberty are frightful to contemplate. If our who is not attached to the army, or navy, or fathers had failed to provide for just such a

militia in actual service... . contingency, they would have been false to

It is claimed that martial law covers with the trust reposed in them. They knew—the its broad mantle the proceedings of this mili- history of the world told them—the nation tary commission. The proposition is this: they were founding, be its existence short’ or that in a time of war the commander of an long, would be involved in war; how often or

Ex Parte MILLIGAN 25 how long continued, human foresight could that a country, preserved at the sacrifice of not tell; and that unlimited power, wherever all the cardinal principles of liberty, is not lodged at such a time, was especially hazard- worth the cost of preservation. Happily, it ous to freemen. For this, and other equally 1s not so. weighty reasons, they secured the inheritance It will be borne in mind that this is not a they had fought to maintain, by incorporating question of the power to proclaim martial in a written Constitution the safeguards law, when war exists ina community and the which time had proved were essential to its courts and civil authorities are overthrown. preservation. Not one of these safeguards Nor is it a question what rule a military comcan the President, or Congress, or the judi- mander, at the head of his army, can impose ciary disturb, except the one concerning the on states in rebellion to cripple their resources

writ of habeas corpus. and quell the insurrection. The jurisdiction

It is essential to the safety of every gov- claimed is much more extensive. The necesernment that, in a great crisis like the one _ sitics of the service, during the late rebellion, we have just passed through, there should be — required that the loyal states should be a power somewhere of suspending the writ placed within the limits of certain military of habeas corpus. In every war, there are districts and commanders appointed in them; men of previously good character, wicked and, it is urged, that this, in a military sense, enough to counsel their fellow-citizens to constituted them the theatre of military op-

resist the measures deemed necessary by a erations; and, as in this case, Indiana had

good government to sustain its just authority becn and was again threatened with invasion and overthrow its enemies; and their influ- by the enemy, the occasion was furnished to ence may lead to dangerous combinations. establish martial law. The conclusion does not In the emergency of the times, an immediate follow from the premises. If armics were public investigation according to law may not collected in Indiana, they were to be em-

be possible; and yet the peril to the country ployed in another locality, where the laws may be too imminent to suffer such persons were obstructed and the national authority to go at large. Unquestionably, there is then disputed. On her soil there was no hostile an exigency which demands that the govern- foot; if once invaded, that invasion was at ment, if it should see fit, in the exercise of an end, and with it all pretext for martial a proper discretion, to make arrests, should law. Martial law cannot arise from a threatnot be required to produce the persons ar- ened invasion. The necessity must be actual rested in answer to a writ of habeas corpus. and present; the invasion real, such as effecThe Constitution goes no further. It does not tually closes the courts and deposes the civil say after a writ of habeas corpus is denied a administration. citizen, that he shall be tried otherwise than It is difficult to see how the safety of the by the course of the common law; if it had country required martial law in Indiana. If intended this result, it was easy by the use any of her citizens were plotting treason, the of direct words to have accomplished it. The power of arrest could secure them, until the illustrious men who framed that instrument government was prepared for their trial, were guarding the foundations of civil liberty when the courts were open and ready to try against the abuses of unlimited power; they them. It was as easy to protect witnesses bewere full of wisdom, and the lessons of his- fore a civil as a military tribunal; and as tory informed them that a trial by an estab- there could be no wish to convict, except on lished court, assisted by an impartial jury, sufficient legal evidence, surely an ordained was the only sure way of protecting the citi- and established court was better able to judge zen against oppression and wrong. Knowing of this than a military tribunal composed of this, they limited the suspension to one great gentlemen not trained to the profession of

right, and left the rest to remain forever in- the law. violable. But, it is insisted that the safety of It follows, from what has been said on this the country in time of war demands that this subject, that there are occasions when martial

broad claim for martial law shall be sus- rule can be properly applied. If, in foreign tained. If this were true, it could be well said invasion or civil war, the courts are actually

26 DOCUMENTS OF AMERICAN HISTORY closed, and it is impossible to administer ercise of their jurisdiction. It is also confined criminal justice according to law, then, on to the locality of actual war. Because, during the theatre of active military operations, the late rebellion it could have been enforced where war really prevails, there is a necessity in Virginia, where the national authority was to furnish a substitute for the civil authority, overturned and the courts driven out, it does thus overthrown, to preserve the safety of not follow that it should obtain in Indiana, the army and society; and as no power is left where that authority was never disputed, and but the military, it is allowed to govern by justice was always administered... .

martial rule until the laws can have their Mr. Chief Justice Chase, for himself and free course. As necessily creates the rule, so. Mr. Justice Wayne, Mr. Justice Swayne, and it limits its duration; for, if this government Mr. Justice Miller, delivered an opinion in is continued after the courts are reinstated, which he differed from the court in several it is a gross usurpation of power. Martial important points, but concurred in the judgerule can never exist where the courts are ment in the case. open, and in the proper and unobstructed ex-

257. EFFORTS TO ENCOURAGE IMMIGRATION South Carolina Immigration Bill 1866

(South Carolina Statutes at Large, Vol. XIII, p. 380) The demand for industrial labor, the opening up _ his services the salary of fifteen hundred dolof the west, and the disorganization of the labor Jars per annum out of the fund aforesaid, in system of the South, all led to official as well as quarterly payments.

unofficial efforts to encourage immigration. Most 3. That it shall be the duty of said ComSouthern States attempted to attract immigrants missioner of Immigration to advertise in all to take the place of the negro worker, but uniformly without success. In South Carolina a the gazettes of the State for lands for sale; state commissioner of agriculture was created [0 cause such lands, after having been duly and a pamphlet advertising the attractions of laid off, platted and described, at the expense the state published in several languages and dis- of the owner or owners of said lands, to be tributed widely throughout northern Europe. See, appraised by three disinterested persons, and F. B. Simkins and R. H. Woody, South Caro- their titles to be examined by the Attorney

lina During Reconstruction, p. 243 ff. General or Solicitors of the State, and en-

dorsed by them, as the case may be; to open To Encourage Immigration to South Carolina a book or books for the registry of the same,

1. Be it enacted by the Senate and House together with the price demanded and the of Representatives, now met and sitting in conditions of payment. And in case such General Assembly, and by the authority of lands be selected by any immigrant, to superthe same, That for the,purpose of encourag- intend the transfer of title and other necesing, promoting and protecting European im- sary instruments and proceedings of conmigration to and in this State, the sum of ten _—veyance.

thousand dollars be appropriated from the 4. That the said Commissioner shall pecontingent fund, to be expended under the riodically publish, advertise and cause to be direction of the Government, for the pur- distributed in the Northern and European poses and in the manner hereinafter pro- ports and states, descriptive lists of such

vided. lands as have been registered and offered for

2. That the Governor, by and with the ad- sale, together with this Act, and a statement vice and consent of the Senate, shall appoint of such advantages as this State offers in a Commissioner of Immigration, who shall soil, climate, productions, social improveopen an office in the fire-proof building in ments, etc., to the industrious, orderly and Charleston, to perform such duties as may frugal European immigrant. appertain to his office, and shall be paid for

Ex PARTE GARLAND | 27 258. EX PARTE GARLAND 4 Wallace, 333 1867

Petition to the Supreme Court. Garland, a citi- In the exclusion which the statute adjudges zen of Arkansas, had been admitted to practice jit imposes a punishment for some of the acts before the Supreme Court in 1860. He subse- snecified which were not punishable at the quently served in the Confederate Army, but time they were committed; and for other of received from the President a full pardon for the acts it adds a new punishment to that be-

all offences. An Act of Congress of January 24, f ‘bed d it is thus b ht with;

1865, excluded from practice before the Su- ore prescribed, and it 1s thus brouen wv an preme Court any one who could not take an the further inhibition of the Constitution oath that he had never fought against the United against the passage of an ex post facto States. Garland challenged the constitutionality law... . of this law. This is the first case in which an act The profession of an attorney and counselof Congress was held unconstitutional by a vote Jor is not like an office created by an act of

of five to four. Congress, which depends for its continuance, its powers, and its emoluments upon the will

Frewp, J. . . . The petitioner... now pro- of its creator, and the possession of which duces his pardon, and asks permission to con- may be burdened with any conditions not

tinue to practise as an attorney and coun- prohibited by the Constitution. Attorneys sellor of the court without taking the oath and counsellors are not officers of the United required by the act of January 24, 1865, and States; they are not elected or appointed in the rule of the court, which he is unable to the manner prescribed by the Constitution take, by reason of the offices he held under for the election and appointment of such ofthe Confederate government. He rests his ficers. They are officers of the court, admitted application principally upon two grounds: as such by its order, upon evidence of their ist. That the act of January 24, 1865, so possessing sufficient legal learning and fair far as it affects his status in the court, is un- private character. . . . They hold their office

constitutional and void; and, during good behavior, and can only be de-

2. That, if the act be constitutional, he is prived of it for misconduct ascertained and released from compliance with its provisions declared by the judgment of the court after

by the pardon of the President... . opportunity to be heard has been afforded.

The statute is directed against parties who Their admission or their exclusion is not the have offended in any of the particulars em- exercise of a mere ministerial power. It is braced by these clauses. And its object is to the exercise of judicial power, and has been exclude them from the profession of the law, so held in numerous cases... . or at least from its practice in the courts of The legislature may undoubtedly prescribe the United States. As the oath prescribed qualifications for the office, to which he must cannot be taken by these parties, the act, as conform, as it may where it has exclusive against them, operates as a legislative decree jurisdiction, prescribe qualifications for the of perpetual exclusion. And exclusion from pursuit of any of the ordinary avocations of any of the professions or any of the ordinary _life. The question, in this case, is not as to avocations of life for past conduct can be the power of Congress to prescribe qualificaregarded in no other light than as punishment tions, but whether that power has been exfor such conduct. The exaction of the oath ercised as a means for the infliction of pun-

is the mode provided for ascertaining the ishment, against the prohibition of the parties upon whom the act is intended to Constitution. .. . operate, and instead of lessening, increases its This view is strengthened by a consideraobjectionable character. All enactments of tion of the effect of the pardon produced by this kind partake of the nature of bills of the petitioner, and the nature of the pardonpains and penalties, and are subject to the ing power of the President. constitutional inhibition against the passage The Constitution provides that the Presiof bills of attainder, under which general dent “shall have power to grant reprieves and

designation they are included. pardons for offenses against the United

28 DoCUMENTS OF AMERICAN HISTORY States, except in cases of impeachment.” “for all offenses by him committed, arising The power thus conferred is unlimited, from participation, direct or implied, in the with the exception stated. It extends to every Rebellion,” and is subject to certain condioffense known to the law, and may be exer- tions which have been complied with. The cised at any time after its commission, either effect of this pardon is to relieve the petibefore legal proceedings are taken, or-during tioner from all penalties and disabilities attheir pendency, or after conviction and judg- tached to the offense of treason, committed ment. This power of the President is not sub- by his participation in the Rebellion. So far ject to legislative control. Congress can as that offense is concerned, he is thus placed neither limit the effect of his pardon, nor beyond the reach of punishment of any kind. exclude from its exercise any class of offend- But to exclude him, by reason of that offense, ers. The benign prerogative of mercy reposed from continuing in the enjoyment of a previin him cannot be fettered by any legislative ously acquired right, is to enforce a punish-

restrictions. ment for that offense notwithstanding the

, Such being the case, the inquiry arises as pardon. If such exclusion can be effected by

to the effect and operation of a pardon, and _ the exaction of an expurgatory oath covering

on this point all the authorities concur. A the offense, the pardon may be avoided, and pardon reaches both the punishment pre- that accomplished indirectly which cannot be scribed for the offense and the guilt of the reached by direct legislation. It is not within offender; and when the pardon is full, it re- the constitutional power of Congress to inleases the punishment and blots out of ex- flict punishment beyond the reach of execuistence the guilt, so that in the eye of the law tive clemency. From the petitioner, therefore, the offender is as innocent as if he had never _ the oath required by the act of January 24th, committed the offense. If granted before con- 1865, could not be exacted, even if that act viction, it prevents any of the penalties and were not subject to any other objection than disabilities consequent upon conviction from the one thus stated.

attaching; if granted after conviction, it re- It follows, from the views expressed, that moves the penalties and disabilities, and re- the prayer of the petitioner must be granted.

stores him to all his civil rights; it makes ... And it is so ordered.

him, as it were, a new man, and gives him a Miter, J., with whom concurred WAITE, new credit and capacity.... The pardon C. J., and Justices SwAyNE and Davis, deproduced by the petitioner is a full pardon livered a dissenting opinion.

259. MISSISSIPPI v. JOHNSON 4 Wallace, 475 1867

Suit in the Supreme Court by the State of United States, and E. O. C. Ord, general comMississippi to enjoin President Johnson from en- manding in the District of Mississippi and forcing the Reconstruction Acts of 1867 on Arkansas, from executing, or in any manner the ground that they were unconstitutional. carrying out, certain acts of Congress therein

With MSSISSIPP! to secure a de named. cision tne fromfavre the Court on this question, Gcorgl filed a suit to restrain Secretary Stanton from The acts referred to are those of March 2d enforcing the acts. Georgia v. Stanton, 6 Wal- and March 23d, (1867, commonly known as

lace, 50. See, W. A. Dunning, Reconstruction, the Reconstruction Acts. ... The single

Political and Economic, ch. xvi; J. W. Burgess, point which requires consideration is this: Reconstruction and the Constitution, p. 144 ff.; Can the President be restrained by injunction Warren, The Supreme Court, Vol. I, ch. xxx. from carrying into effect an act of Congress alleged to be unconstitutional? CuaseE, C. J. A motion was made, some days It is assumed by the counsel for the State since, in behalf of the State of Mississippi, of Mississippi, that the President, in the exefor leave to file a bill in the name of the State, cution of the Reconstruction Acts, is required praying this court perpetually to enjoin and to perform a mere ministerial duty. In this restrain Andrew Johnson, President of the assumption there is, we think, a confounding

MISSISSIPPI V. JOHNSON 29 of the terms ministerial and executive, which terposition to prevent such an enactment, are by no means equivalent in import. when the purpose is evident and the execution A ministerial duty, the performance of of that purpose certain, be distinguished, in which may, in proper cases, be required of the principle, from the right to such interposition

head of a department, by judicial process, is against the execution of such a law by the one in respect to which nothing is left to dis- President? cretion. It is a simple, definite duty, arising The Congress is the legislative department under conditions admitted or proved to exist, of the government; the President is the ex-

and imposed by law... . ecutive department. Neither can be restrained Very different is the duty of the President in its action by the judicial department; in the exercise of the power to see that the though the acts of both, when performed, laws are faithfully executed, and among these are, in proper cases, subject to its cognizance.

laws the acts named in the bill. By the first of The impropriety of such interference will these acts he is required to assign generals to _be clearly seen upon consideration of its poscommand in the several military districts, and sible consequences.

to detail sufficient military force to enable Suppose the bill filed and the injunction such officers to discharge their duties under prayed for allowed. If the President refuse the law. By the supplementary act, other du- obedience, it is needless to observe that the ties are imposed on the several commanding court is without power to enforce its process. generals, and these duties must necessarily be If, on the other hand, the President complies performed under the supervision of the Pres- with the order of the court and refuses to exeident as commander in chief. The duty thus cute the acts of Congress, is it not clear that a imposed on the President is in no just sense collision may occur between the executive ministerial. It is purely executive and political. and legislative departments of the governAn attempt on the part of the judicial de- ment? May not the House of Representatives partment of the government to enforce the impeach the President for such refusal? And performance of such duties by the President in that case could this court interfere, in bemight be justly characterized, in the language half of the President, thus endangered by of Chief Justice Marshall, as “an absurd and compliance with its mandate, and restrain by

excessive extravagance.” injunction the Senate of the United States

It is true that in the instance before us the from sitting as a court of impeachment? interposition of the court is not sought to en- Would the strange spectacle be offered to the force action by the executive under constitu- public world of an attempt by this court to

tional legislation, but to restrain such action arrest proceedings in that court? : under legislation alleged to be unconstitu- These questions answer themselves. .. . tional. But we are unable to perceive that this It has been suggested that the bill contains circumstance takes the case out of the gen- a prayer that, if the relief sought cannot be eral principles which forbid judicial interfer- had against Andrew Johnson, as President, it ence with the exercise of executive discretion. may be granted against Andrew Johnson as a It was admitted in the argument that the citizen of Tennessee. But it is plain that reapplication now made to us is without a prec- _ lief as against the execution of an act of Conedent ; and this is of much weight against gress by Andrew Johnson, is relief against its

It... execution by the President. A bill praying an The fact that no such application was ever injunction against the execution of an act of before made in any case indicates the general Congress by the incumbent of the presidenjudgment of the profession that no such ap- _ tial office cannot be received, whether it de-

plication should be entertained. scribes him as President or as a citizen of a

It will hardly be contended that Congress State. [the court?] can interpose, in any case, to re- The motion for leave to file the bill is therestrain the enactment of an unconstitutional fore denied. law; and yet how can the right to judicial in-

30 DOCUMENTS OF AMERICAN History 260. THE FIRST RECONSTRUCTION ACT March 2, 1867 (U. S. Statutes at Large, Vol. XIV, p. 428 ff.) The triumph of the Radicals in the elections of President to assign to the command of each of 1866 gave them a free hand in the development said districts an officer of the army, not beof a reconstruction policy. The famous Act of low the rank of brigadier-general, and to deMarch 2, 1867, contained the general principles 4) 4 sufficient military force to enable such

of congressional reconstruction. There was grave ec t ¢ his duti d ent hi

doubt about the constitutionality of some of 9 cer tO per Orm Ais duties and entorce 18 the provisions of this act, but the efforts of 4uthority within the district to which he is Southern States to bring the question before the Ssigned.

Supreme Court were unavailing. For the argu- SEC. 3. That it shall be the duty of each ment against the constitutionality of the meas- officer assigned as aforesaid, to protect all ure, see Johnson’s veto message, Document No. persons in their rights of persons and prop261. On the history of the Act, see J. F. Rhodes, erty, to suppress insurrection, disorder, and

History of the United States, Vol. VI; J. W. violence, and to punish, or cause to be punBurgess, Reconstruction and the Constitution; ished, all disturbers of the public peace and W. L. Fleming, The Sequel of Appomattox, chs. .. , v-vi; C. E. Chadsey, The Struggle Between criminals and to this end he may allow local President Johnson and Congress over Recon- Vil tribunals to take jurisdiction of and to

struction; J. A. Woodburn, Thaddeus Stevens, tty offenders, or, when in his judgment it may chs. xiii-xviili; G. F. Milton, The Age of Hate, be necessary for the trial of offenders, he shall ch. xvii; B. B. Kendrick, The Journal of the have power to organize military commissions Joint Committee of Fifteen. For the political or tribunals for that purpose, and all interferbackground, H. K. Beale, The Critical Year, is ence under color of State authority with the invaluable. For military government, see W. A. exercise of military authority under this act,

Dunning, Essays on the Civil War and Re- shall be null and void.

construction, chs. iii-iv; and the numerous Sec. 4. That all t und ‘lit monographs on reconstruction in the States; see EC. 4. at atl p ersons put un er mt ary bibliographies in W. A. Dunning, Reconstruc- atrest by virtue of this act shall be tried with-

tion, and in H. K. Beale, Critical. Year. out unnecessary delay, and no cruel or unusual punishment shall be inflicted, and no An Act to provide for the more efficient sentence of any military commission or triGovernment of the Rebel States bunal hereby authorized, affecting the life or WHEREAS no legal State governments or liberty of any person, shall be executed until adequate protection for life or property now it is approved by the officer in command of exists in the rebel States of Virginia, North the district, and the laws and regulations for

Carolina, South Carolina, Georgia, Missis- the government of the army shall not be sippi, Alabama, Louisiana, Florida, Texas, affected by this act, except in so far as they and Arkansas; and whereas it is necessary conflict with its provisions: Provided, That that peace and good order should be enforced __ no sentence of death under the provisions of

in said States until loyal and republican State this act shall be carried into effect without governments can be legally established: the approval of the President.

Therefore, Sec. 5. That when the people of any one of

Be it enacted, That said rebel States shall said rebel States shall have formed a constibe divided into military districts and made tution of government in conformity with the subject to the military authority of the United Constitution of the United States in all reStates as hereinafter prescribed, and for that spects, framed by a convention of delegates purpose Virginia shall constitute the first dis- elected by the male citizens of said State, trict; North Carolina and South Carolina the twenty-one years old and upward, of whatsecond district; Georgia, Alabama, and Flor- ever race, color, or previous condition, who ida the third district; Mississippi and Arkan- have been resident in said State for one year sas the fourth district; and Louisiana and previous to the day of such election, except

Texas the fifth district. such as may be disfranchised for participation SEc. 2. That it shall be the duty of the in the rébellion or for felony at common law,

VETO OF THE FIRST RECONSTRUCTION ACT 31 and when such constitution shall provide that privilege of holding office by said proposed the elective franchise shall be enjoyed by all amendment to the Constitution of the United such persons as have the qualifications herein States, shall be eligible to election as a memstated for electors of delegates, and when such _ ber of the convention to frame a constitution constitution shall be ratified by a majority of for any of said rebel States, nor shall any the persons voting on the question of ratifica- such person vote for members of such convention who are qualified as electors for dele- _ tion. gates, and when such constitution shall have Sec. 6. That, until the people of said rebel been submitted to Congress for examination States shall be by law admitted to representaand approval, and Congress shall have ap- tion in the Congress of the United States, any proved the same, and when said State, by a civil governments which may exist therein vote of its legislature elected under said con- shall be deemed provisional only, and in all stitution, shall have adopted the amendment respects subject to the paramount authority to the Constitution of the United States, pro- of the United States at any time to abolish,

posed by the Thirty-ninth Congress, and modify, control, or supersede the same; and known as article fourteen, and when said in all elections to any office under such proviarticle shall have become a part of the Con- sional governments all persons shall be en-

. stitution of the United States said State titled to vote, and none others, who are enshall be declared entitled to representation titled to vote, under the provisions of the fifth

in Congress, and senators and represent- section of this act; and no persons shall be atives shall be admitted therefrom on their eligible to any office under any such provitaking the oath prescribed by law, and then sional governments who would be disqualiand thereafter the preceding sections of this fied from holding office under the provisions

act shall be inoperative in said State: Pro- of the third article of said constitutional vided, That no person excluded from the amendment.

261. VETO OF THE FIRST RECONSTRUCTION ACT March 2, 1867 (Richardson, ed. Messages and Papers, Vol. VI, p. 498 ff.) Dunning states that this veto message was serts the necessity of enforcing peace and

drafted by J. S. Black. good order within their limits. Is this true as

matter of fact? WASHINGTON, March 2, 1867 It is not denied that the States in question

To the House of Representatives: have each of them an actual government, with I have examined the bill “to provide forthe all the powers—executive, judicial, and legismore efficient government of the rebel States” lative—which properly belong to a free state. with the care and anxiety which its transcend- They are organized like the other States of

ent importance is calculated to awaken. 1am the Union, and, like them, they make, adunable to give it my assent, for reasons so minister, and execute the laws which concern grave that I hope a statement of them may _ their domestic affairs. An existing de facto have some influence on the minds of the pa- government, exercising such functions as triotic and enlightened men with whom the _ these, is itself the law of the state: upon all

decision must ultimately rest. matters within its jurisdiction. To pronounce

The bill places all the people of the ten the supreme law-making power of an estabStates therein named under the absolute dom- lished state illegal is to say that law itself is ination of military rulers; and the preamble unlawful. undertakes to give the reason upon which the The provisions which these governments measure 1s based and the ground upon which have made for the preservation of order, the it is justified. It declares that there exists in suppression of crime, and the redress of prithose States no legal governments and no ade- __— vate injuries are in substance and principle quate protection for life or property, and as- _ the same as those which prevail in the North-

32 DOCUMENTS OF AMERICAN HISTORY ern States and in other civilized coun-_ trol, and that is completely displaced by the

tries... . clause which declares all interference of State The bill, however, would seem to show up- authority to be null and void. He alone 1s on its face that the establishment of peace permitted to determine what are rights of perand good order is not its real object. The fifth son or property, and he may protect them in section declares that the preceding sections such way as in his discretion may seem proper. shall cease to operate in any State where cer- It places at his free disposal all the lands and

tain events shall have happened... . goods in his district, and he may distribute

All these conditions must be fulfilled before them without let or hindrance to whom he the people of any of these States can be re- pleases. Being bound by no State law, and lieved from the bondage of military domina- there being no other law to regulate the subtion; but when they are fulfilled, then imme- ject, he may make a criminal code of his own; diately the pains and penalties of the bill are and he can make it as bloody as any recorded

to cease, no matter whether there be peace in history, or he can reserve the privilege of and order or not, and without any reference acting upon the impulse of his private pasto the security of life or property. The excuse sions in each case that arises. He is bound by given for the bill in the preamble is admitted no rules of evidence; there is, indeed, no proby the bill itself not to be real. The military vision by which he is authorized or required rule which it establishes is plainly to be used, to take any evidence at all. Everything is a not for any purpose of order or for the pre- crime which he chooses to call so, and all pervention of crime, but solely as a means of | sons are condemned whom he pronounces to coercing the people into the adoption of prin- be guilty. He is not bound to keep and record ciples and measures to which it is known that or make any report of his proceedings. He they are opposed, and upon which they have may arrest his victims wherever he finds them, an undeniable right to exercise their own without warrant, accusation, or proof of prob-

judgment. able cause. If he gives them a trial before he I submit to Congress whether this measure inflicts the punishment, he gives it of his grace is not in its whole character, scope, and object and mercy, not because he is commanded so

without precedent and without authority, in todo.... palpable conflict with the plainest provisions It is also provided that ‘“‘he shall have of the Constitution, and utterly destructive power to organize military commissions or to those great principles of liberty and hu- tribunals;” but this power he is not commanity for which our ancestors on both sides manded to exercise. . . . Instead of mitigatof the Atlantic have shed so much blood and ing the harshness of his single rule, such a

expended so much treasure. tribunal would be used much more probably

The ten States named in the bill are divided __to divide the responsibility of making it more

into five districts. For each district an offi- cruel and unjust. cer of the Army, not below the rank of a Several provisions dictated by the humanbrigadier-general, is to be appointed to rule ity of Congress have been inserted in the bill, over the people; and he is to be supported apparently to restrain the power of the comwith an efficient military force to enable him manding officer; but it seems to me that they to perform his duties and enforce his author- are of no avail for that purpose. .. . ity. Those duties and that authority, as de- It is plain that the authority here given to fined by the third section of the bill, are “to the military officer amounts to absolute desprotect all persons in their rights of person potism. But to make it still more unendurable, and property, to suppress insurrection, dis- the bill provides that it may be delegated to order, and violence, and to punish or cause to as many subordinates as he chooses to appoint, be punished all disturbers of the public peace for it declares that he shall “punish or cause or criminals.” The power thus given to the to be punished.” Such a power has not been commanding officer over all the people of wielded by any monarch in England for more each district is that of an absolute monarch. than five hundred years. In all that time no His mere will is to take the place of all law. people who speak the English language have The law of the States is now the only rule ap- borne such servitude. It reduces the whole plicable to the subjects placed under his con- population of the ten States—all persons, of

VETO OF THE First RECONSTRUCTION ACT 33 every color, sex, and condition, and every that out of which these questions grow; but stranger within their limits—to the most ab- the States continued to exist and the Union ject and degrading slavery. No master ever remained unbroken. In Massachusetts, 1n had a control so absolute over the slaves as Pennsylvania, in Rhode Island, and in New this bill gives to the military officers over York, at different periods in our history, vio-

both white and colored persons. .. . lent and armed opposition to the United

I come now to a question which is, if pos- States was carried on; but the relations of sible, still more important. Have we the power _ those States with the Federal Government

to establish and carry into execution a meas- were not supposed to be interrupted or ure like this? I answer, Certainly not, if we changed thereby after the rebellious portions

derive our authority from the Constitution of their population were defeated and put and if we are bound by the limitations which down. It is true that in these earlier cases

it imposes. there was no formal expression of a determinThis proposition is perfectly clear, that no ation to withdraw from the Union, but it is branch of the Federal Government—execu- also true that in the Southern States the orditive, legislative, or judicial—can have any nances of secession were treated by all the just powers except those which it derives friends of the Union as mere nullities and are through and exercises under the organic law now acknowledged to be so by the States of the Union. Outside of the Constitution we themselves. If we admit that they had any have no legal authority more than private. force or validity or that they did in fact take

citizens, and within it we have only so much# the States in which they were passed out of |

as that instrument gives us. This broad prin- the Union, we sweep from under our fect all. ciple limits all our functions and applies to all the grounds upon which we stand in justifysubjects. It protects not only the citizens of ing the use of Federal force to maintain the

States which are within the Union, but it integrity of the Government. . |

shields every human being who comes or is This is a bill passed by Congress in time of brought under our jurisdiction. We have no _ peace. There is not in any one of the States right to do in one place more than in another brought under its operation either war or inthat which the Constitution says we shall not — surrection. The laws of the States and of the do at all. If, therefore, the Southern States Federal Government are all in undisturbed were in truth out of the Union, we could not and harmonious operation. The courts, State treat their people in a way which the funda- and Federal, are open and in the full exercise

mental law forbids. of their proper authority. Over every State Some persons assume that the success of comprised in these five military districts, life, our arms in crushing the opposition which was liberty, and property are secured by State made in some of the States to the execution laws and Federal laws, and. the National Conof the Federal laws reduced those States and stitution is everywhere in force and everyall their people—the innocent as well as the where obeyed. What, then, 1s the ground on guilty—to the condition of vassalage and which this bill proceeds? The title of the bill gave us a power over them which the Consti- announces that it is intended “for the more tution does not bestow or define or limit. No _ efficient government” of these ten States. It fallacy can be more transparent than this. is recited by way of preamble that no legal Our victories subjected the insurgents to legal State governments “nor adequate protection obedience, not to the yoke of an arbitrary for life or property” exist in those States, and

despotism. ... that peace and good order should be thus en-

Invasion, insurrection, rebellion, and do- forced. The first thing which arrests attention mestic violence were anticipated when the upon these recitals, which prepare the way for ' Government was framed, and the means of martial law, is this, that the only foundation repelling and suppressing them were wisely upon which martial law can exist under our provided for in the Constitution; but it was form of government is not stated or so much

not thought necessary to declare that the as pretended. Actual war, foreign invasion, States in which they might occur should be domestic insurrection—none of these appear; expelled from the Union. Rebellions, which and none of these, in fact, exist. It is not even were invariably suppressed, occurred prior to recited that any sort of war or insurrection is

34 DOCUMENTS OF AMERICAN HISTORY threatened. Let us pause here to consider, up- _-will of two. Finally, the Constitution declares on this question of constitutional law and the _ that “the privilege of the writ of habeas cor-

power of Congress, a recent decision of the pus shall not be suspended unless when, in Supreme Court of the United States in ex case of rebellion or invasion, the public safety

parte Milligan... . may require it;” whereas this bill declares I need not say to the representatives of the martial law (which of itself suspends this American people that their Constitution for- great writ) in time of peace, and authorizes bids the exercise of judicial power in any way the military to make the arrest, and gives to but one—that is, by the ordained and estab- the prisoner only one privilege, and that is a lished courts. It is equally well known that in _ trial “without unnecessary delay.’’ He has no all criminal cases a trial by jury is made indis- hope of release from custody, except the pensable by the express words of that instru- hope, such as it is, of release by acquittal ment. I will not enlarge on the inestimable before a military commission. value of the right thus secured to every free- The United States are bound to guarantee man or speak of the danger to public liberty to each State a republican form of governin all parts of the country which must ensue’ ment. Can it be pretended that this obligation from a denial of it anywhere or upon any pre- __is not probably broken if we carry out a meastense. A very recent decision of the Supreme _ ure like this, which wipes away every vestige

Court has traced the history, vindicated the of republican government in ten States and dignity, and made known the value of this puts the life, property, liberty, and honor of great privilege so clearly that nothing more is all the people in each of them under the domneeded. To what extent a violation of it might ination of a single person clothed with unlim-

be excused in time of war or public danger ited authority? may admit of discussion, but we are providing The purpose and object of the bill—the now for a time of profound peace, when there general intent which pervades it from beginis not an armed soldier within our borders ex- ning to end—is to change the entire structure cept those who are in the service of the Gov- and character of the State governments and

ernment. It is in such a condition of things to compel them by force to the adoption of that an act of Congress is proposed which, if organic laws and regulations which they are carried out, would deny a trial by the lawful unwilling to accept if left to themselves. The courts and juries to 9,000,000 American citi- negroes have not asked for the privilege of zens and to their posterity for an indefinite voting; the vast majority of them have no period. It seems to be scarcely possible that idea what it means. This bill not only thrusts anyone should seriously believe this consistent it into their hands, but compels them, as well with a Constitution which declares in simple, as the whites, to use it in a particular way. If

plain, and unambiguous language that all per- they do not form a constitution with presons shall have that right and that no person scribed articles in it and afterwards elect a shall ever in any case be deprived of it. The legislature which will act upon certain measConstitution also forbids the arrest of the cit- ures in a prescribed way, neither blacks nor izen without judicial warrant, founded on whites can be relieved from the slavery which probable cause. This bill authorizes an arrest _ the bill imposes upon them. Without pausing

without warrant, at the pleasure of a military here to consider the policy or impolicy of commander. The Constitution declares that Africanizing the southern part of our terri“no person shall be held to answer for a cap- tory, I would simply ask the attention of ital or otherwise infamous crime unless on Congress to that manifest, well-known, and presentment by a grand jury.” This bill holds universally acknowledged rule of constituevery person not a soldier answerable for all tional law which declares that the Federal crimes and all charges without any present- Government has no jurisdiction, authority, or ment. The Constitution declares that ‘no per- power to regulate such subjects for any State. son shall be deprived of life, liberty, or prop- To force the right of suffrage out of the hands erty without due process of law.” This bill of the white people and into the hands of the sets aside all process of law, and makes the _ negroes is an arbitrary violation of this prin-

citizen answerable in his person and property ciple... . to the will of one man, and as to his life to the The bill also denies the legality of the gov-

: THe TENURE OF OFFICE ACT 35 ernments of ten of the States which partici- solemn resolution that the war was and should pated in the ratification of the amendment to _ be carried on for no purpose of subjugation,

the Federal Constitution abolishing slavery but solely to enforce the Constitution and forever within the jurisdiction of the United laws, and that when this was yielded by the States and practically excludes them from the parties in rebellion the contest should cease,

Union. If this assumption of the bill be cor- with the constitutional rights of the States rect, their concurrence can not be considered and of individuals unimpaired. This resoluas having been legally given, and the impor- tion was adopted and sent forth to the world tant fact is made to appear that the consent unanimously by the Senate and with only two. of three-fourths of the States—the requisite dissenting voices in the House. It was acnumber—has not been constitutionally ob- cepted by the friends of the Union in the . tained to the ratification of that amendment, South as well as in the North as expressing thus leaving the question of slavery where it honestly and truly the object of the war. On stood before the amendment was officially de- the faith of it many thousands of persons in clared to have become.a part of the Consti- both sections gave their lives and their for-

tution. tunes to the cause. To repudiate it now by That the measure proposed by this bill does refusing to the States and to the individuals

violate the Constitution in the particulars within them the rights which the Constitumentioned and in many other ways which I_ tion and laws of the Union would secure forbear to enumerate is too clear to admit of _ to them is a breach of our plighted honor for

the least doubt. .. . which I can imagine no excuse and to which It is a part of our public history which can I can not voluntarily become a party... .

never be forgotten that both Houses of Con- ANDREW JOHNSON. gress, in July, 1861, declared in the form of a

262. THE TENURE OF OFFICE ACT March 2, 1867 (U.S. Statutes at Large, Vol. XIV, p. 430 ff.) The struggle between Johnson and the Radicals comstruction and the Constitution; biographies over Reconstruction had been referred to the of Johnson by Milton, Stryker, Winston. voters, and the elections of the fall of 1866 were

overwhelmingly favorable to the Radicals. The , : , a

thirty-ninth Congress which met in December An Act regulating the Tenure of certain Civil

1866 was dominated by such Radical leaders as O fices.

Stevens, Sumner, Wilson, Boutwell, Wade, Be it enacted, That every person holding Chandler, and others. The Tenure of Office Act any civil office to which he has been appointed was one of three momentous bills passed March by and with the advice and consent of the 2, 1867, The question of the power of the Senate, and every person who shall hereafter President to remove officials appointed by and be appointed to any such office, and shall bea controversial one; it was not, indeed, settled come duly qualined to act therein, JS) and until 1926 (see Doc. No. 459). It was highly un- shall be entitled to hold such office until a succertain whether the Act was originally designed C€SSOT shall have been in like manner apto afford permanence of tenure-to the members pointed and duly qualified, except. as herein of Johnson’s cabinet who had been appointed by otherwise provided: Provided, That the SecPresident Lincoln. See Johnson’s veto message, _retaries of State, of the Treasury, of War, of Doc. No. 263. Johnson’s Temoval of Secretary the Navy, and of the Interior, the PostmasStanton, in alleged violation of the Tenure of ter-General, and the Attorney-General, shall Oifice Act, was the principal charge in the hold their offices respectively for and durin The Struggle Between President Johnson and the term of the President by whom they may Congress over Reconstruction; W. A. Dunning, 4ve been appointed and for one month thereReconstruction, ch. vi; J. F. Rhodes, History of | after, subject to removal by and with the adthe United States, Vol. VI; J. W. Burgess, Re- vice and consent of the Senate.

with the advice of the Senate had long been | .; ss

impeachment proceedings. See, C. E. Chadsey, : 5

36 DoCUMENTS OF AMERICAN HISTORY Sec. 2, That when any officer appointed as_ person so performing the duties thereof, and

aforesaid, excepting judges of the United not to the officer so suspended. . . .

States courts, shall, during a recess of the SEc. 3. That the President shall have Senate, be shown, by evidence satisfactory to power to fill all vacancies which may happen the President, to be guilty of misconduct in during the recess of the Senate, by reason of office, or crime, or for any reason shall be- death or resignation, by granting commissions come incapable or legally disqualified to per- which shall expire at the end of their next sesform its duties, in such case, and in no other, sion thereafter. . . .

the President may suspend such officer and SEc. 4. That nothing in this act contained designate some suitable person to perform shall be construed to extend the term of any temporarily the duties of such office until the office the duration of which is limited by law.

next meeting of the Senate, and until the case Sec. 5. That if any person shall, contrary shall be acted upon by the Senate ... ; and to the provisions of this act, accept any apin such case it shall be the duty of the Presi- pointment to or employment in any office, or dent, within twenty days after the first day of — shall hold or exercise or attempt to hold or such next meeting of the Senate, to report to exercise, any such office or employment, he the Senate such suspension, with the evidence _ shall be deemed, and is hereby declared to be, and reasons for his action in the case, and the guilty of a high misdemeanor, and, upon trial name of the person so designated to perform and conviction thereof, he shall be punished the dulies of such office. And if the Senate therefor by a fine not exceeding ten thousand shall concur in such suspension and advise dollars, or by imprisonment not exceeding five

and consent to the removal of such officer, years, or both said punishments, in the disthey shall so certify to the President, who cretion of the court. may thereupon remove such officer, and, by SEC. 6. That every removal, appointment, and with the advice and consent of the Sen- or employment, made, had, or exercised, conate, appoint another person to such office. But trary to the provisions of this act, . . . shall if the Senate shall refuse to concur in such be deemed, and are hereby declared to be, suspension, such officer so suspended shall high misdemeanors, and, upon trial and conforthwith resume the functions of his office, viction thereof, every person guilty thereof and the powers of the person so. performing — shall be punished by a fine not exceeding ten its duties in his stead shall cease, and the of- thousand dollars, or by imprisonment not exficial salary and emoluments of such officer ceeding five years, or both said punishments, shall, during such suspension, belong to the _ in the discretion of the court... .

263. VETO OF TENURE OF OFFICE ACT March 2, 1867 (Richardson, ed. Messages and Papers, Vol. VI, p. 492 ff.) According to Welles, the veto message was means a new one. That the power of removal drafted by Secretaries Seward and Stanton. is constitutionally vested in the President of the United States is a principle which has been

WASHINGTON, March 2, 1867. not more distinctly declared by judicial au-

To the Senate of the United States: thority and judicial commentators than it I have carefully examined the bill “to regu- has been uniformly practiced upon by the late the tenure of certain civil offices.” ... legislative and executive departments of the In effect the bill provides that the President Government... . shall not remove from their places any of the The question has often been raised in subcivil officers whose terms of service are not sequent times of high excitement, and the limited by law without the advice and consent practice of the Government has, nevertheof the Senate of the United States. The bill in less, conformed in all cases to the decision this respect conflicts, in my judgment, with thus early made. the Constitution of the United States. The The question was revived during the Adquestion, as Congress is well aware, is by no’ ministration of President Jackson, who made,

COMMAND OF THE ARMY ACT 37 as is well recollected, a very large number of _ tical confirmation of the wisdom of the Conremovals, which were made an occasion of stitution as it has hitherto been maintained in close and rigorous scrutiny and remonstrance. many of its parts, including that which is now The subject was long and earnestly debated the subject of consideration. When the war

in the Senate, and the early construction of broke out, rebel enemies, traitors, abettors, the Constitution was, nevertheless, freely ac- and sympathizers were found in every Decepted as binding and conclusive upon Con- partment of the Government, as well in the

gress. civil service as in the land and naval military The question came before the Supreme service. They were found in Congress and

Court of the United States in January, 1839, among the keepers of the Capitol; in foreign ex, parte Hennen. It was declared by the court missions; in each and all the Executive Deon that occasion that the power of removal partments; in the judicial service; in the postfrom office was a subject much disputed, and __ office, and among the agents for conducting upon which a great diversity of opinion was Indian affairs. Upon probable suspicion they entertained in the early history of the Gov- were promptly displaced by my predecessor, ernment. This related, however, to the power so far as they held their offices under execuof the President to remove officers appointed _ tive authority, and their duties were confided with the concurrence of the Senate, and the to new and loyal successors. No complaints great question was whether the removal was against that power or doubts of its wisdom to be by the President alone or with the con- were entertained in any quarter. I sincerely currence of the Senate, both constituting the trust and believe that no such civil war is appointing power. No one denied the power likely to occur again. I can not doubt, howof the President and Senate jointly to remove ever, that in whatever form and on whatever where the tenure of the office was not fixed occasion sedition can raise an effort to hinder by the Constitution, which was a full recog- or embarrass or defeat the legitimate action nition of the principle that the power of re- of this Government, whether by preventing moval was incident to the power of appoint- the collection of revenue, or disturbing the ment; but it was very early adopted as a_ public peace, or separating the States, or be-

practical construction of the Constitution traying the country to a foreign enemy, the that this power was vested in the President power of removal from office by the Execu-

alone, ... tive, as it has heretofore existed and been Thus has the important question presented practiced, will be found indispensable.

by this bill been settled, in the language of Under these circumstances, as a depositary the late Daniel Webster ... by construc- of the executive authority of the nation, I do tion, settled by precedent, settled by the prac- not feel at liberty to unite with Congress in tice of the Government, and settled by statute. reversing it by giving my approval to the The events of the last war furnished a prac- bill. . . .

264. COMMAND OF THE ARMY ACT March 2, 1867 (U. S. Statutes at Large, Vol. XIV, p. 485 ff.) Congress inserted in the Army Appropriation port of the army for the year ending June, act of March 2, 1867, provisions which virtually 30, 1868 and for other purposes.

deprived the President of the command of the Sec. 2. And be it further enacted. That

army requiring that heofissue all military the headauart f the G ‘army orders by through the General the army. John- quarters 0 e General of the

son approved of the bill, in order not to defeat of the United States shall be at the city of the appropriations, but he entered a protest Washington, and all orders and instructions against those scctions depriving him of command Felating to military operations issued by the

of the army. See, Richardson, Vol. VI, p. 472. President or Secretary of War shall be is-

For references, see Doc. No. 262. sued through the General of the army, and, in case of his inability, through the next in rank.

An Act making appropriations for the sup- The General of the army shall not be re-

38 DOCUMENTS OF AMERICAN HisTorRy moved, suspended, or relieved from command, _ section shall be deemed guilty of a misdeor assigned to duty elsewhere than at said meanor in office; and any officer of the army

headquarters, except at his own request, who shall transmit, convey, or obey any orwithout the previous approval of the Senate; ders or instructions so issued contrary to the and any orders or instructions relating to provisions of this section, knowing that such military operations issued contrary to the re- orders were so issued, shall be liable to imquirements of this section shall be null and prisonment for not less than two nor more void; and any officer who shall issue orders or than twenty years, upon conviction thereof in instructions contrary to the provisions of this any court of competent jurisdiction. ...

265. THE SECOND RECONSTRUCTION ACT March 23, 1867 (U. S. Statutes at Large, Vol. XV, p. 2 ff.) This act provided in detail for the processes by as an officer of the United States, or as a which the military commanders were to recon- member of any State legislature, or as an exstruct the Southern States. For references see ecutive or judicial officer of any State, to

Doc. No. 260. support the Constitution of the United States,

An Act supplementary to an Act entitled and afterwards engaged in insurrection or re“An Act to provide for the more efficient bellion against the United States, or given aid Government of the Rebel States,” passed or comfort to the enemies thereof ; that I will March 2, 1867, and to facilitate Restoration. faithfully support the Constitution and obey

_ Be it enacted ..., That before... the laws of the United States, and will, to the September 1, 1867 ..., the commanding _ best of my ability, encourage others so to do,

general in each district defined by ... [the so help me God.” ... | act of March 2, 1867]... , shall cause a SEC. 2. That after the completion of the registration to be made of the male citizens _ registration hereby provided for in any State, of the United States, twenty-one years of age at such time and places therein as the comand upwards, resident in each county or par- manding general shall appoint and direct, of ish in the State or States included in his dis- which at least thirty days’ public notice shall trict, which registration shall include only _ be given, an election shall be held of delegates those persons who are qualified to vote for toa convention for the purpose of establishdelegates by the act aforesaid, and who shall ing a constitution and civil government for have taken and subscribed the following oath such State loyal to the Union, said convention or affirmation: “I, ——~ ——, do solemnly _ in each State, except Virginia, to consist of swear (or affirm), in the presence of Almighty the same number of members as the most God, that I am a citizen of the State of ——-; numerous branch of the State legislature of

that I have resided in said State for —— such State... [in 1860] ... , to be apmonths next preceding this day, and now re- portioned among the several districts, counside in the county of ——, or the parish of _ ties, or parishes of such State by the com——, in said State (as the case may be); that manding general, giving to each representation

I am twenty-one years old; that I have not in the ration of voters registered as aforebeen disfranchised for participation in any re- said as nearly as may be. The convention in bellion or civil war against the United States, Virginia shall consist of the same number of or for felony committed against the laws of members as represented the territory now any State or of the United States; that [have constituting Virginia in the most numerous never been a member of any State legislature, branch of the legislature of said State...

nor held any executive or judicial office in [in 1860] ... , to be apportioned as aforeany State, and afterwards engaged in insur- - said. rection or rebellion against the United States, SEC. 3. That at said election the registered

or given aid or comfort to the enemies voters of each State shall vote for or against thereof; that I have never taken an oath asa _ a convention to form a constitution therefor member of Congress of the United States, or under this act. And the commanding gen-

VETO OF THE SECOND RECONSTRUCTION ACT 39 eral . . . shall ascertain and declare the total tion to the persons registered under the provote in each State .. . If a majority of the visions of this act at an election to be convotes given on that question shall be for a ducted by the officers or persons appointed convention, then such convention shall be or to be appointed by the commanding genheld as hereinafter provided; but ifa majority eral, as hereinbefore provided, and to be held of said votes shall be against a convention, after the expiration of thirty days from the then no such convention shall be held under date of notice thereof, to be given by said this act: Provided, That such convention shall convention; and the returns thereof shall be not be held unless a majority of all such reg- made to the commanding general of the disistered voters shall have voted on the question _ trict.

of holding such convention. Sec. 5. That if, according to said returns,

Sec. 4. That the commanding general of _ the constitution shall be ratified by a majority each district shall appoint as many boards of of the votes of the registered electors . . . registration as may be necessary, consisting at least one half of all the registered voters of three loyal officers or persons, to make and voting upon the question of such ratification, complete the registration, superintend the the president of the convention shall transmit election, and make return to him of the votes, a copy of the same, duly certified, to the Presilists of voters, and of the persons elected as__ dent of the United States, who shall forthwith

delegates by a plurality of the votes cast at transmit the same to Congress ... ; and if said election; and upon receiving said returns it shall moreover appear to Congress that the he shall open the same, ascertain the persons election was one at which all the registered elected as delegates, according to the returns and qualified electors in the State had an opof the officers who conducted said election, portunity to vote freely and without restraint, and make proclamation thereof; and if a ma-__ fear, or the influence of fraud, and if the Conjority of the votes given on that question shall gress shall be satisfied that such constitution be for a convention, the commanding general, meets the approval of a majority of all the within sixty days from the date of election, qualified electors in the State, and if the said shall notify the delegates to assemble in con- constitution shall be declared by Congress to vention, at a time and place to be mentioned be in conformity with the provisions of the in the notification, and said convention, when act to which this is supplementary, and the organized, shall proceed to frame a constitu- other provisions of said act shall have been tion and civil government according to the complied with, and the said constitution shall provisions of this act, and the act to which be approved by Congress, the State shall be it is supplementary; and when the same shall _ declared entitled to representation, and sena-

have been so framed, said constitution shall tors and representatives shall be admitted be submitted by the convention for ratifica- therefrom as therein provided.

266. VETO OF THE SECOND RECONSTRUCTION ACT March 23, 1867 (Richardson, ed. Messages and Papers, Vol. VI, p. 531 ff.) WASHINGTON, March 23, 1867. details are principally directed to the elections

To the House of Representatives: for the formation of the State constitutions

I have considered the bill entitled “An act but by the sixth section of the bill ‘all elecsupplementary to an act entitled ‘An act to tions” in these States occurring while the provide for the more efficient government of criginal act remains in force are brought the rebel States,’ passed March 2, 1867, and __ within its purview. Referring to these details to facilitate restoration,’ and now return it to it will be found that, first of al', there is to be

the House of Representatives with my ob- a registration of the voters. No one whose

jections. name has not been admitted on the list is to This bill provides for elections in the ten be allowed to vote at any of these elections States brought under the operation of the To ascertain who is entitled to registration, original act to which it is supplementary. Its reference is made necessary, by the express

40 DOCUMENTS OF AMERICAN History language of the supplement, to the original that they should have authority from the peoact and to the pending bill. The fifth section ple themselves. No convention so constituted of the original act provides, as to voters, that will in any sense represent the wishes of the they shall be “male citizens of the State, 21 inhabitants of these States, for under the allyears old and upward, of whatever race, color, embracing exceptions of these laws, by a con-

or previous condition, who have been resi- struction which the uncertainty of the clause dents of said State for one year.” This is the as to disfranchisement leaves open to the general qualification, followed, however, by board of officers, the great body of the peomany exceptions. No one can be registered, ple may be excluded from the polls and from according to the original act, “who may be all opportunity of expressing their own wishes disfranchised for participation in the rebel- or voting for delegates who will faithfully relion”—a provision which left undetermined _ flect their sentiments. the question as to what amounted to disfran- I do not deem it necessary further to inchisement, and whether without a judicial vestigate the details of this bill. No considerasentence the act itself produced that effect. tion could induce me to give my approval to This supplemental bill superadds an oath, to such an election law for any purpose, and esbe taken by every person before his name pecially for the great purpose of framing the can be admitted upon the registration, that constitution of a State. If ever the American he has “not been disfranchised for participa- citizen should be left to the free exercise of tion in any rebellion or civil war against the his own judgment it is when he is engaged in United States.” It thus imposes upon every the work of forming the fundamental law person the necessity and responsibility of de- under which he is to live. That work is his ciding for himself, under the peril of punish- work, and it can not properly be taken out ment by a military commission if he makes a of his hands. All this legislation proceeds upon mistake, what works disfranchisement by the contrary assumption that the people of participation in rebellion and what amounts each of these States shall have no constitution

to such participation. ... except such as may be arbitrarily dictated by

The fourth section of the bill provides “that Congress and formed under the restraint of the commanding general of each district shall military rule. A plain statement of facts appoint as many boards of registration as makes this evident. may be necessary, consisting of three loyal In all these States there are existing conofficers or persons.” The only qualification stitutions, framed in the accustomed way by stated for these officers is that they must be the people. Congress, however, declares that “Joyal.” They may be persons in the military these constitutions are not “loyal and repubservice or civilians, residents of the State or lican,’”’ and requires the people to form them strangers. Yet these persons are to exercise anew. What, then, in the opinion of Congress, most important duties and are vested with un-__1s necessary to make the constitution of a limited discretion. They are to decide what State “loyal and republican’? The original names shall be placed upon the register and act answers the question: It is universal negro from their decision there is to be no appeal. suftrage—a question which the Federal ConThey are to superintend the elections and to — stitution leaves exclusively to the States decide all questions which may arise. They themselves. All this legislative machinery of are to have the custody of the ballots and to martial law, military coercion, and political make return of the persons elected. What- disfranchisement is avowedly for that purever frauds or errors they may commit must pose and none other. The existing constitu-

pass without redress. All that is left for the tions of the ten States conform to the commanding general is to receive the returns acknowledged standards of loyalty and repubof the elections, open the same, and ascertain licanism. Indeed, if there are degrees in rewho are chosen ‘‘according to the returns of publican forms of government, their constituthe officers who conducted said elections.” By tions are more republican now than when such means and with this sort of agency are these States, four of which were members of the conventions of delegates to be constituted. the original thirteen, first became members of As the delegates are to speak for the peo- the Union. ple, common justice would seem to require Congress does not now demand that a sin-

Tir Turrp RECONSTRUCTION ACT 41 gle provision of their constitutions be changed previous to the day of such election.” except such as confine suffrage to the white Without these provisions no constitution population. It is apparent, therefore, that which can be framed in any one of the ten these provisions do not conform to the stand- States will be of any avail with Congress. ard of republicanism which Congress seeks to This, then, is the test of what the constitution establish. That there may be no mistake, it is of a State of this Union must contain to make only necessary that reference should be made it republican. Measured by such a standard, to the original act, which declares “such con- how few of the States now composing the

stitution shall provide that the elective fran- Union have republican constitutions! If in chise shall be enjoyed by all such persons as the exercise of the constitutional guaranty have the qualifications herein stated for elec- that Congress shall secure to every State a tors of delegates.” What class of persons is republican form of government universal here meant clearly appears in the same sec- suffrage for blacks as well as whites is a sie tion; that is to say, “the male citizens of said qua non, the work of reconstruction may as State 21 years old and upward, of whatever well begin in Ohio as in Virginia, in Pennsylrace, color, or previous condition, who have vania as in North Carolina... .

been resident in said State for one year ANDREW JOHNSON 267. THE THIRD RECONSTRUCTION ACT July 19, 1867 (U. S. Statutes at Large, Vol. XV, p. 14 ff.)

This act was designed to clear up the ambiguities said act shall require it, to suspend or remove

of the Acts of March 2 and March 23, 1867, from office, or from the performance of ofparticularly with reference to the oath required ficjal duties and the exercise of official powby the second of those acts. This act was drafted ers, any officer or person holding or exercising

by Sec. Stanton. See, G. C. Gorham, Life and or professing to hold ; vil °?

Public Services of Stanton, Vol. I, and refer- P BLO NONE OF CXERCISC, any Civil OF

ences to Doc. No. 260. military office or duty in such district under

any power, election, appointment or authority An Act supplementary to an Act entitled “An derived from, or granted by, or claimed under,

Act to provide for the more efficient Gov- any so-called State or the government ernment of the Rebel States,’ passed thereof, or any municipal or other division [March 2, 1867], and the Act supplemen- thereof, and upon such suspension or removal

tary thereto, passed [March 23, 1867]. such commander, subject to the disapproval Be it enacted, That it is hereby declared to of the General as aforesaid, shall have power

have been the true intent and meaning... _ to provide from time to time for the per[of the acts of March 2 and March 23, 1867] formance of the said duties of such officer or

... , that the governments then existing in person so suspended or removed, by the dethe rebel States of Virginia, North Carolina, tail of some competent officer or soldier of the

South Carolina, Georgia, Mississippi, Ala- army, or by the appointment of some other bama, Louisiana, Florida, Texas, and Arkan- person, to perform the same, and to fill vasas were not legal State governments; and _ cancies occasioned by death, resignation, or that thereafter said governments, if contin- otherwise.

ued, were to be continued subject in all Sec. 3. That the General of the army of respects to the military commanders of the re- the United States shall be invested with all spective districts, and to the paramount au-- the powers of suspension, removal, appoint-

thority of Congress. ment, and detail granted in the preceding sec-

Sec. 2. That the commander of any dis- tion to district commanders. trict named in said act shall have power, sub- Sec. 4. That the acts of the officers of the ject to the disapproval of the General of the army already done in removing in said dis-

army of the United States, and to have effect __tricts persons exercising the functions of civil

till disapproved, whenever in the opinion of officers, and appointing others in their stead such commander the proper administration of are hereby confirmed: Provided, That any

42 DocUMENTS OF AMERICAN HISTORY person heretofore or hereafter appointed by SEc. 6. That the true intent and meaning any district commander to exercise the func- of the oath prescribed in said supplementary

tions of any civil office, may be removed act is, (among other things,) that no person either by the military officer in command of who has been a member of the legislature of the district, or by the General of the army. any State, or who has held any executive or And it shall be the duty of such commander judicial office in any State, whether he has to remove from office as aforesaid all persons taken an oath to support the Constitution of who are disloyal to the government of the the United States or not, and whether he was United States, or who use their official influ- holding such office at the commencement of ence in any manner to hinder, delay, prevent, the rebellion, or had held it before, and who or obstruct the due and proper administration has afterwards engaged in insurrection or reof this act and the acts to which it is supple- _ bellion against the United States, or given aid

mentary. or comfort to the enemies thereof, is entitled Sec. 5. That the boards of registration to be registered or to vote; and the words

provided for in the act [of March 23, 1867] ‘‘executive or judicial office in any State” in shall have power, and it shall be their duty said oath mentioned shall be construed to inbefore allowing the registration of any person, clude all civil offices created by law for the to ascertain, upon such facts or information administration of any general law of a State, as they can obtain, whether such person is en- or for the administration of Justice... . titled to be registered under said act, and the Sec. 10. That no district commander or oath required by said act shall not be conclu- member of the board of registration, or any sive on such question, and no person shall be of the officers or appointees acting under registered unless such board shall decide that them, shall be bound in his action by any

he is entitled thereto; and such board shall opinion of any civil officer of the United also have power to examine, under oath, ... States. any one touching the qualification of any Sec. 11. That all provisions of this act and person claiming registration; ... Provided, of the acts to which this is supplementary That no person shall be disqualified as mem- shall be construed liberally, to the end that ber of any board of registration by reason of all the intents thereof may be fully and per-

race or color. fectly carried out.

268. THE PURCHASE OF ALASKA March 30, 1867 (Malloy, ed. Treaties, Conventions, etc. Vol. II, p. 1521 ff.) The purchase of Alaska was regarded, at the thereof, all the territory and dominion now time, as “Seward’s folly”; it was lobbied through possessed by his said Majesty on the contiCongress by Robert Walker of Mississippi, to pent of America and in the adjacent islands, the accompaniment of rumors of bribery. See; the same being contained within the geoF. Bancroft, Seward, Vol. HI, ch. xlii; J. M. prannical limits herein set forth, to wit: The Canadian Relations, W. Va. Studies in History, eastern limit 1S the line of demarcation beSeries I, On Walker, see W. E. Dodd, Robert J. tween the Russian and the British possessions

Callahan, The Alaska Purchase and Americo- oes ;

Walker, Imperialist. in North America, as established by the con-

vention between Russia and Great Britain, of CONVENTION FOR THE CESSION OF THE February 28—16, 1825, and described in

RussIAN Possessions IN NorTH Articles III. and IV. of said convention, in

AMERICA TO THE UNITED STATES the following terms: ...

Concluded March 30, 1867. Ratifications “TV. With reference to the line of deexchanged at Washington, June 20, 1867. marcation ]aid down in the preceding article,

Proclaimed June 20, 1867. it is understood—

| Art. I... . His Majesty the Em- “Ist. That the island called Prince of peror of all the Russias agrees to cede to the Wales Island shall belong wholly to RusUnited States, by this Convention, immedi- _ sia,’ .. . ately upon the exchange of the ratifications ‘“““2d. That whenever the summit of the

Tut IMPEACHMENT OF PRESIDENT JOHNSON 43 mountains which extend in a direction parallel such members of the Greck Oriental Church

to the coast from the 56th degree of north’ resident in the territory as may choose to latitude to the point of intersection of the worship therein... . 141st degree of west longitude shall prove to ArT. III... . The inhabitants of the ceded be at the distance of more than ten marine _ territory, according to their choice, reserving leagues from the ocean, the limit between the — their natural allegiance, may return to Russia British possessions and the line of coast which within three years; but, if they should prefer is to belong to Russia as above mentioned, to remain in the ceded territory, they, with

(that is to say, the limit to the possessions the exception of uncivilized native tribes, ceded by this convention,) shall be formed by — shall be admitted to the enjoyment of all the a line parallel to the winding of the coast, and __ rights, advantages, and immunities of citizens which shall never exceed the distance of ten of the United States, and shall be maintained

marine leagues therefrom.’” .. . and protected in the free enjoyment of their Art. II. ... In the cession of territory liberty, property, and religion. The unciviland dominion made by the preceding article ized tribes will be subject to such laws and are included the right of property in all public regulations as the United States may from lots and squares, vacant lands, and all public time to time adopt in regard to aboriginal buildings, fortifications, barracks, and other tribes of that country... .

edifices which are not private individual Art. VI. In consideration of the cession property. It is, however, understood and aforesaid, the United States agree to pay at

agreed, that the churches which have been the Treasury in Washington... seven built in the ceded territory by the Russian million two hundred thousand dollars in Government, shall remain the property of gold... . 269. THE IMPEACHMENT OF PRESIDENT JOHNSON 1868

(Richardson, ed. Messages and Papers, Vol. VI, p. 709 ff., 755 ff.) The House of Representatives resolved, February Him ror HicH Crimes AND MISDEMEAN24, 1868, to impeach President Johnson. On ORS IN OFFICE.

March 2 and 3 articles of impeachment were Articte I. That said Andrew Johnson, agreed upon by the House and on March 4 president of the United States, on the 21st presented to the Senate. J. A. Bingham, G. S. d f Feb A. D. 1868. at Washinet Boutwell, J. F. Wilson, B. F. Butler, T. Wile G°Y 0? Sebruary, A. D. lobo, at Washington, liams, J. A. Logan, and T. Stevens were the i the district of Columbia, unmindful of the House managers of the impeachment. The Senate high duties of his office, of his oath of office, voted on the articles, May 16 and 26, 1868. See, and of the requirement of the Constitution

D. M. De Witt, Impeachment and Trial of that he should take care that the laws be

)~‘

Andrew Johnson; W. A. Dunning, Essays on faithfully executed, did unlawfully and in vioCivil War and Reconstruction, p. 253 ff.; G. F. lation of the Constitution and laws of the

Stryke Take ge as. edit hore. a G United States issue an order in writing for the Bowers. The Tragic Eva ‘ch. ix ) oo" removal of Edwin M. Stanton from the office

, of Secretary for the Department of War, said

In THE House or REPRESENTATIVES, ee M. Stanton having been theretofore

UNITED STATES uly appointed and commissioned, by and March 2. 1868. with the advice and consent of the Senate of

, the United States, as such Secretary; and

ARTICLES EXHIBITED BY THE House or Rep- said Andrew Johnson, President of the United RESENTATIVES OF THE UNITED STATES, IN States, on the 12th day of August, A. D. THE NAME or THEMSELVES AND ALL THE 1867, and during the recess of said Senate, PEOPLE OF THE UNITED STATES, AGAINST _ having suspended by his order Edwin M. ANDREW JOHNSON, PRESIDENT OF THE Stanton from said office, and within twenty UNITED STATES, IN MAINTENANCE AND days after the first day of the next meeting SUPPORT OF THEIR IMPEACHMENT AGAINST of said Senate—that is to say, on the 12th

44 DOCUMENTS OF AMERICAN HIsTOoRY day of December, in the year last aforesaid— of Columbia, said Andrew Johnson, President

having reported to said Senate such suspen- of the United States, . . . did, with intent sion, with the evidence and reasons for his to violate the Constitution of the United action in the case and the name of the person States and the act aforesaid, issue and dedesignated to perform the duties of such office liver to one Lorenzo Thomas a letter of temporarily until the next meeting of the Sen- authority in substance as follows; that is to ate; and said Senate thereafterwards, on the say:

13th day of January, A. D. 1868, having duly EXECUTIVE MANSION, considered the evidence and reasons reported Washington, D. C., February 21, 1868. by said Andrew Johnson for said suspension, Brevet Major-General LorENzo THOMAS,

and having refused to concur in said suspen- Adjutant-General United States Army, sion, whereby and by force of the provisions Washington, D. C. of an act entitled “An act regulating the Sir: The Hon. Edwin M. Stanton having

tenure of certain civil offices,” passed March been this day removed from office as Secre2, 1867, said Edwin M. Stanton did forthwith tary for the Department of War, you are resume the functions of his office, whereof the hereby authorized and empowered to act as said Andrew Johnson had then and there due Secretary of War ad interim, and will immenotice; and said Edwin M. Stanton, by reason diately enter upon the discharge of the duties of the premises, on said 21st day of February, pertaining to that office. being lawfully entitled to hold said office of Mr. Stanton has been instructed to transfer secretary for the Department of War; which to you all the records, books, papers, and said order for the removal of said Edwin M. other public property now in his custody and Stanton is in substance as follows; that is to charge.

say: Respectfully, yours, EXECUTIVE MANSION, ANDREW JOHNSON. Washington, D. C., February 21, 1868.

Hon. Epwin M. STANTON, then and there being no vacancy in said office

Washington, D. C. of Secretary for the Department of War;

Sir: By virtue of the power and authority whereby said Andrew Johnson, President of vested in me as President by the Constitu- the United States, did then and there commit tion and laws of the United States, you are and was guilty of a high misdemeanor in hereby removed from office as Secretary for office.

the Department of War, and your functions Art. III. That said Andrew Johnson, as such will terminate upon the receipt of this President of the United States, on the 21st

communication. day of February, A. D. 1868, at Washington,

You will transfer to Brevet Major-General in the District of Columbia, did commit and Lorenzo Thomas, Adjutant-General of the was guilty of a high misdemeanor in office in Army, who has this day been authorized and this, that without authority of law, while the

empowered to act as Secretary of War ad Senate of the United States was then and interim, all records, books, papers, and other _ there in session, he did appoint one Lorenzo public property now in your custody and Thomas to be Secretary for the Department of

charge. War ad interim, without the advice and conRespectfully, yours, sent of the Senate, and with intent to violate ANDREW JOHNSON. the Constitution of the United States, .. .

ArT. IV. That said Andrew Johnson, which order was unlawfully issued with intent President of the United States, . . . did unthen and there to violate the act entitled “An lawfully conspire with one Lorenzo Thomas, act regulating the tenure of certain civil of- and with other persons to the House of Repfices,” passed March 2, 1867 ... whereby _ resentatives unknown, with intent, by intimisaid Andrew Johnson, President of the United dation and threats, unlawfully to hinder and

States, did then and there commit and was’ prevent Edwin M. Stanton, then and there | guilty of a high misdemeanor in office. the Secretary for the Department of War, Art, II. That on said 21st day of Febru- .. . from holding said office of Secretary for ary, A. D. 1868, at Washington, in the District the Department of War, contrary to and in

THE IMPEACHMENT OF PRESIDENT JOHNSON 45 violation of the Constitution of the United the Constitution and the laws of the United States and of the provisions of an act entitled States duly enacted, as Commander in Chief “An act to define and punish certain con- of the Army of the United States, did bring

spiracies,” approved July 31, 1861; ... before himself then and there William H. Art. V. That said Andrew Johnson, Presi- Emory, a major-general by brevet in the dent of the United States, ... did unlaw- Army of the United States, actually in com-

fully conspire with one Lorenzo Thomas, and mand of the Department of Washington and with other persons to the House of Repre- the military forces thereof, and did then and sentatives unknown, to prevent and hinder there, as such Commander in Chief, declare the execution of an act entitled “An act reg- to and instruct said Emory that part of a law ulating the tenure of certain civil offices,” of the United States, passed March 2, 1867,

passed March 2, 1867... . entitled “An Act making appropriations for Art. VI. That said Andrew Johnson, Presi- the support of the Army for the year ending

dent of the United States, ... did unlaw- June 30, 1868, and for other purposes,” esfully conspire with one Lorenzo Thomas by pecially the second section thereof, which force to seize, take, and possess the property provides, among other things, that “all orders

of the United States in the Department of and instructions relating to military operaWar, and then and there in the custody and _ tions issued by the President or Secretary of charge of Edwin M. Stanton, Secretary for War shall be issued through the General of said Department, contrary to the provisions the Army, and in case of his inability through of an act entitled “An act to define and punish the next in rank,” was unconstitutional .. .

certain conspiracies,” approved July 31, with intent thereby to induce said Emory, in 1861, and with intent to violate and disregard his official capacity as commander of the Dean act entitled “An act regulating the tenure partment of Washington, to violate the pro-

of certain civil offices,’ passed March 2, visions of said act and to take and recelve,

1867; ... act upon, and obey such orders as he, the said

Art. VII. That said Andrew Johnson, Andrew Johnson, might make and give, and President of the United States, ... did un- which should not be issued through the Genlawfully conspire with one Lorenzo Thomas eral of the Army of the United States, acwith intent unlawfully to seize, take, and pos- cording to the provisions of said act, ... sess the property of the United States in the

Department of War, in the custody and charge March 3, 1868.

of Edwin M. Stanton, Secretary for said De- The following additional articles of impartment, with intent to violate and disregard peachment were agreed to, viz:

the act entitled ‘An act regulating the tenure Art. X. That said Andrew Johnson, Presiof certain civil offices, passed March 2, dent of the United States, unmindful of the

1867; ... high duties of his office and the dignity and

Art. VII. That said Andrew Johnson, _ proprieties thereof, and of the harmony and President of the United States, ... with in- courtesies which ought to exist and be maintent unlawfully to control the disbursement tained between the executive and legislative of the moneys appropriated for the military branches of the Government of the United

service and for the Department of War, ... States, ... did attempt to bring into disdid unlawfully, and in violation of the Con- grace, ridicule, hatred, contempt, and _ restitution of the United States, and without proach the Congress of the United States and

the advice and consent of the Senate of the several branches thereof, to impair and the United States, ... there being no va- destroy the regard and respect of all the good cancy in the office of Secretary for the people of the United States for the Congress Department of War, and with intent to vio- and legislative power thereof (which all oflate and disregard the act aforesaid, then ficers of the Government ought inviolably to and there issue and deliver to one Lorenzo preserve and maintain), and to excite the

Thomas a letter of authority, . . . odium and resentment of all the good people Art. IX. That said Andrew Johnson, Pres- of the United States against Congress and the ident of the United States, on the 22d day of laws by it duly and constitutionally enacted; February, A. D. 1868, .. . in disregard of and, in pursuance of his said design and intent,

46 DOCUMENTS OF AMERICAN History openly and publicly, and before divers as- I will tell you what I did do. I called upon semblages of the citizens of the United States, your Congress that is trying to break up the

... did, on the 18th day of August, A. D. Government... — 1866, and on divers other days and times, . . . In conclusion, besides that, Congress had taken

make and deliver with a loud voice certain in- much pains to aie eee ewe they temperate, inflammatory, and scandalous ha- done anything to nctone the Union of those rangues, and did therein utter loud threats states? No. On the contrary, they have done and bitter menaces, as well against Congress everything to prevent it. And because he stood as the laws of the United States, duly enacted now where he did when the rebellion commenccd, thereby, amid the cries, jeers, and laughter of | he had been denounced as a traitor. Who had the multitudes then assembled and in hearing, ‘un greater risks or made greater sacrifices than which are set forth in the several specifica- himself ? But Congress, factious and dominecr-

;y

tions hereinafter written in substance and ef- 1 had undertaken to poison the minds of the

fect; that is to say: American people.

_ opecification first—In this, that at Wash- gy it ation third-—In this, that at St.

ington, . . . in the to a Louis.. ;. ;.. on ; i ouis, in Executive the StateMansion, of Missouri,

the

committee of citizens who called upon the Sth da of September. A. D 1866 said President of the United States, speaking of 4 a... Tohneon President of the United and concerning the Congress of the United States. speaking of and concerning the Con-

States, said Andrew Johnson, President of the ~~’, peaking Of al cerning fac Progressive Junelaid 22,upon he | us by our fathers to maintain Roosevelt’s followers met at Orchestra Hall, Chi- d Bovernment ot the Deop © fy pews

cago, and pledged support to him and to his laid people W u ns y principles. July 7, the call for a nominating con- ad. . . . T 0 P vention was issued, and the convention duly met HE ULD FARTIES

at Chicago August 5 and nominated Roosevelt Political parties exist to secure responsible by acclamation. Hiram Johnson of California government and to execute the will of the was nominated to the Vice-Presidency. The third people.

party succeeded in winning 88 electoral votes and From these great tasks both of the old a Popule vn i over four millions. See, G. H. parties have turned aside. Instead of instruBacksiage in on of 0 X or ra “Relonel ing ments to promote the general welfare, they

Publication; M. Sullivan, Our Times, Vol.chs. III; xi-xii; nye coneWty ne vartiall ee aerers R. M. La Follette, Autobiography, tO serve their H. Pringle, Theodore Rooseuelt selfish purposes. Behind the ostensible government sits enthroned an invisible governThe conscience of the people, in a time of ment owing no allegiance and acknowledggrave national problems, has called into being ing no responsibility to the people.

a new party, born of the nation’s sense of To destroy this invisible government, to

|

254 DocUMENTS OF AMERICAN HisToORY dissolve the unholy alliance between corrupt welfare and public policy. To secure this end, business and corrupt politics is the first task it pledges itself.to provide:

of the statesmanship of the day. 1, That when an Act, passed under the

The deliberate betrayal of its trust by the police power of the State, is held unconstituRepublican party, the fatal incapacity of the tional under the State Constitution, by the Democratic party to deal with the new issues courts, the people, after an ample interval for of the new time, have compelled the people deliberation, shall have an opportunity to to forge a new instrument of government vote on the question whether they desire the through which to give effect to their will in Act to become law, notwithstanding such de-

laws and institutions. cision.

Unhampered by tradition, uncorrupted by 2. That every decision of the highest appower, undismayed by the magnitude of the _ pellate court of a State declaring an Act of

task, the new party offers itself as the in- the Legislature unconstitutional on the

strument of the people to sweep away old ground of its violation of the Federal Conabuses, to build a new and nobler common- _ stitution shall be subject to the same review

wealth. ... by the Supreme Court of the United States THe RULE OF THE PEOPLE as is now accorded to decisions sustaining ... In particular, the party declares for such legislation.

direct primaries for the nomination of State ADMINISTRATION OF JUSTICE and National officers, for nation-wide prefer- ... We believe that the issuance of. inential primaries for candidates for the presi- junctions in cases arising out of labor disputes

dency; for the direct election of United should be prohibited when such injunctions States Senators by the people; and we urge would not apply when no labor disputes exon the States the policy of the short ballot, isted. with responsibility to the people secured by We believe also that a person cited for

the initiative, referendum and recall... . contempt in labor disputes, except when EQUAL SUFFRAGE such contempt was committed in the actual The Progressive party, believing that no presence of the court or so near thereto as people can justly claim to be a true democ- to interfere with the proper administration of racy which denies political rights on account justice, should have a right to trial by jury. of sex, pledges itself to the task of securing SOCIAL AND INDUSTRIAL JUSTICE

equal suffrage to men and women alike. The supreme duty of the Nation is the CorRRUPT PRACTICES conservation of human resources through an We pledge our party to legislation that will enlightened measure of social and industrial compel strict limitation of all campaign con- justice. We pledge ourselves to work unceastributions and expenditures, and detailed pub- ingly in State and Nation for:

licity of both before as well as after pri- Effective legislation looking to the preven-

maries and elections. tion of industrial accidents, occupational disPUBLICITY AND PUBLIC SERVICE eases, overwork, involuntary unemployment,

We pledge our party to legislation com- and other injurious effects incident to modpelling the registration of lobbyists; publicity ern industry; of committee hearings except on foreign af- The fixing of minimum safety and health fairs, and recording of all votes in commit- standards for the various occupations, and tee; and forbidding federal appointees from the exercise of the public authority of State holding office in State or National political and Nation, including the Federal Control organizations, or taking part as officers or over interstate commerce, and the taxing delegates in political conventions for the power, to maintain such standards; nomination of elective State or National of- The prohibition of child labor;

ficials. Minimum wage standards for working THE CourRTsS women, to provide a “living wage” in all in-

The Progressive party demands such re- dustrial occupations; striction of the power of the courts as shall The general prohibition of night work for leave to the people the ultimate authority to women and the establishment of an eight determine fundamental questions of social hour day for women and young persons;

THE LODGE COROLLARY TO THE MONROE DOCTRINE 255 One day’s rest in seven for all wage We favor the organization of the workers,

workers ; men and women, as a means of protecting The eight hour day in continuous twenty- their interests and of promoting their prog-

four-hour industries; ress... . The abolition of the convict contract labor CURRENCY

system; substituting a system of prison pro- ... The issue of currency is fundamentally duction for governmental consumption only; a Government function and the system should and the application of prisoners’ earnings to have as basic principles soundness and elas-

the support of their dependent families; ticity. The control should be lodged with the Publicity as to wages, hours and conditions Government and should be protected from of labor; full reports upon industrial acci- domination or manipulation by Wall Street dents and diseases, and the opening to public or any special interests.

inspection of all tallies, weights, measures We are opposed to the so-called Aldrich and check systems on labor products; currency bill, because its provisions would Standards of compensation for death by in- place our currency and credit system in pridustrial accident and injury and trade disease vate hands, not subject to effective public which will transfer the burden of lost earnings control... .

from the families of working people to the CONSERVATION industry, and thus to the community; . . . We believe that the remaining forests, The protection of home life against the coal and oil lands, water powers and other hazards of sickness, irregular employment natural resources still in State or National and old age through the adoption of a system control (except agricultural lands) are more of social insurance adapted to American use; likely to be wisely conserved and utilized for

The development of the creative labor the general welfare if held in the public power of America by lifting the last load of hands. illiteracy from American youth and establish- In order that consumers and producers, ing continuation schools for industrial educa- managers and workmen, now and hereafter, tion under public control and encouraging need not pay toll to private monopolies of agricultural education and demonstration in power and raw material, we demand that

rural schools; such resources shall be retained by the State The establishment of industrial research or Nation, and opened to immediate use

laboratories to put the methods and discov- under laws which will encourage development erles of science at the service of American and make to the people a moderate return for

producers; benefits conferred. .. .

385. THE LODGE COROLLARY TO THE MONROE DOCTRINE August 2, 1912 (Congresstonal Record, 62d Congress, 2d Session, Vol. XX XXVIII, pt. 10, p. 10045) In 1911 an American syndicate proposed to sell IX, p. 340 ff.; J. M. Callahan, American Foreign a four hundred thousand acre tract of land in Policy in Mexican Relations. Lower California, including Magdalena Bay, to

a Japanese syndicate. On hearing of the proposal, esolved, That when any harbor or other Senator Lodge introduced a resolution which, Place in the American continents is so situwith slight alterations, was passed by the Senate ated that the occupation thereof for naval or by a vote of 51 to 4. This resolution was the military purposes might threaten the com-

first extension of the Monroe Doctrine to an munications or the safety of the United Asiatic power, and the first extension of the States, the Government of the United States Doctrine to cover control of American soil which could not see without grave concern the achad a potential military value by a foreign cor- tual or potential possession of such harbor or

ary." Pol Sek QL, VoL XLVHIL p. 2001 $ Fas to sive that Cone ment not American,

Bemis, ,ed., of State V |or f . renee practical power te,American Vol. of Secretaries control for naval military purposes.

256 DOCUMENTS OF AMERICAN HISTORY 386. DOLLAR DIPLOMACY

Extract from Fourth Annual Message of President Taft December 3, 1912 (Supplement to the Messages and Papers of the Presidents Covering the Administration

of Taft, p. 8152-3) American surplus capital had flowed largely into nues concerned. The same policy of promotSouth American investments, but prior to the jing international accord among the powers

accession of Taft to the P residency there had having similar treaty rights as ourselves in been little investment in China. The financing of the matters of reform, which could not be

Chinese development was almost entirely in the . , ;

hands of English, Japanese and European bank- put into practical effect without the common ers. In 1909, however, Taft made official rep- consent of all, was likewise adopted in the resentations to the Chinese Government on be- C@S5€ of the loan desired by China for the

half of some American banking houses for reform of its currency. The principle of inparticipation in the Hukuang railroad in the ternational cooperation in matters of comYangtse Valley. As a result American bankers mon interest upon which our policy had alwere admitted to a four power consortium. In _ ready been based in all of the above instances 1912 American bankers were about to co-operate fas admittedly been a great factor in that in floating a Chinese loan for £25,000,000, but the — oncert of the powers which has been so hap-

advent of Wilson to the Presidency brought a ' , during th , od sharp repudiation of “dollar diplomacy” in the pity conspicuous uring the Perous Perio Far East, and the Americans withdrew. For the of transition through which the great Chinese Hukuang Railroad loan, see Foreign Relations nation has been passing. of the United States, 1910, 1912, and for the O wcortiu, Foreign Relations, 1912. On dollar CenTRAL America Nerps OuR HELP IN

diplomacy, see, S. Nearing and J. Freeman, Dollar Dest ADJUSTMENT Diplomacy; J. W. Overlach, Foreign Financial In Central America the aim has been to Control in China; B. H. Williams, Economic For- help such countries as Nicaragua and Honeign FP olicy of the United States; M. C. Hsu, auras to help themselves. They are the 1mRailway Problems in China; H. Croly, Willard ; Lo. h tional benefit t Straight; F. V. Field, American Participation in mediate beneficiaries. The na tonal Dene °

ithe Chinese Consortiums. the United States 1s twofold. First, it 1s ob-

vious that the Monroe doctrine 1s more vital

CHINA in the neighborhood of the Panama Canal In China the policy of encouraging finan- and the zone of the Caribbean than anywhere cial investment to enable that country to help — else. There, too, the maintenance of that doc-

itself has had the result of giving new life and trine falls most heavily upon the United practical application to the open-door policy. States. It is therefore essential that the coun-

The consistent purpose of the present ad- tries within that sphere shall be removed ministration has been to encourage the use of from the jeopardy involved by heavy foreign

American capital in the development of debt and chaotic national finances and from China by the promotion of those essential re- the ever-present danger of international comforms to which China is pledged by treaties plications due to disorder at home. Hence the with the United States and other powers. The United States has been glad to encourage and hypothecation to foreign bankers in connec- support American bankers who were willing

tion with certain industrial enterprises, such to lend a helping hand to the financial reas the Hukuang railways, of the national rev- habilitation of such countries because this enues upon which these reforms depended, financial rehabilitation and the protection of led the Department of State early in the ad- their customhouses from being the prey of ministration to demand for American citi- would-be dictators would remove at one zens participation in such enterprises, in order stroke the menace of foreign creditors and that the United States might have equal the menace of revolutionary disorder. rights and an equal voice in all questions per- The second advantage of the United States taining to the disposition of the public reve- is one affecting chiefly all the southern and

Tart’s VETO OF LITERACY TEST FOR IMMIGRANTS 257 Gulf ports and the business and industry of children, the torturing of noncombatants to the South. The Republics of Central America exact contributions, and the suffering of and the Caribbean possess great natural thousands of human beings—might have been wealth. They need only a measure of stability averted had the Department of State, and the means of financial regeneration to through approval of the loan convention by enter upon an era of peace and prosperity, the Senate, been permitted to carry out its bringing profit and happiness to themselves now well-developed policy of encouraging the and at the same time creating conditions sure extending of financial aid to weak Central to lead to a flourishing interchange of trade American States with the primary objects of

with this country. avoiding just such revolutions by assisting I wish to call your especial attention to those Republics to rehabilitate their finances, the recent occurrences in Nicaragua, for I to establish their currency on a stable basis, believe the terrible events recorded there to remove the customhouses from the danger during the revolution of the past summer— _ of revolutions by arranging for their secure

the useless loss of life, the devastation of administration, and to establish reliable property, the bombardment of defenseless banks. cities, the killing and wounding of women and

387. TAFT’S VETO OF LITERACY TEST FOR IMMIGRANTS February 14, 1913 (Supplement to the Messages and Papers of the Presidents Covering the Administration of William Howard Taft, p. 8228 ff.) The veto message is accompanied by the opinion some time recommendations in its support of Secretary of Commerce, Charles Nagel. For upon that ground have been brought to our Wilson’s veto of the literacy test, see Doc. No. attention. The matter has been considered

404. from that point of view, and I became com-

To the Senate: pletely satisfied that upon that ground the I return herewith, without my approval, test could not be sustained. The older argu-

Senate Bill No. 3175S. ment is now abandoned, and in the later conI do this with great reluctance. The bill ferences, at least, the ground is taken that the contains many valuable amendments to the Provision 3s to be defended as a practical present immigration law which will insure "’©@SUT© to exclude a large proportion of un-

greater certainty in excluding undesirable desirable immigrants from certain countries.

immigrants. The measure proposes to reach its result by The bill received strong support in both indirection, and Is defended purely upon the Houses and was recommended by an able ground of practical policy, the final purpose commission after an extended investigation bei ng to reduce the quantity of cheap labor in

and carefully drawn conclusions. this country. I can not accept this argument.

But I can not make up my mind to sign a No doubt the law would exclude a considerbill which in its chief provision violates a @D!¢ percentage of immigration from southprinciple that ought, in my opinion, to be °™ Italy, among the Poles, the Mexicans, and upheld in dealing with our immigration. I the Greeks. This exclusion would embrace refer to the literacy test. For the reasons probably in large part undesirable but also a stated in Secretary Nagel’s letter tome, I can 8*¢at many desirable people, and the embarnot approve that test. The Secretary’s letter #SSment, expense, and distress to those who

accompanies this. seek to enter would be out of all proportion WM. B. TAFT. to any good that can possibly be promised for this measure.

My Dear Mr. PRESIDENT: My observation leads me to the conclu... 1 am of the opinion that this provi- sion that, so far as the merits of the individsion can not be defended upon its merits. It ual immigrant are concerned, the test is altowas originally urged as a selective test. For gether overestimated. The people who come

258 DOCUMENTS OF AMERICAN HIsToORY from the countries named are frequently il- we are unwilling to assert should be adopted literate because opportunities have been de- until we have at least exhausted the possibilinied them. The oppression with which these ties of a rational distribution of these new

people have to contend in modern times is forces... .

not religious, but it consists of a denial of the The census returns show conclusively that opportunity to acquire reading and writing. the importance of illiteracy among aliens is Frequently the attempt to learn to read and overestimated, and that these people are write the language of the particular people is prompt after their arrival to avail [themdiscouraged by the Government, and these selves] of the opportunities which this counimmigrants in coming to our shores are really __ try affords. While, according to the reports of

striving to free themselves from the condi- the Bureau of Immigration, about 25 per cent tions under which they have been compelled of the incoming aliens are illiterate, the census

to live. shows that among the foreign-born people of So far as the industrial conditions are con- such States as New York and Massachusetts cerned, I think the question has been super- where most of the congestion complained of

ficially considered. We need labor in this has taken place, the proportion of illiteracy country, and the natives are unwilling to do _ represents only about 13 per cent. the work which the aliens come over to do. It I am persuaded that this provision of the is perfectly true that in a few cities and local- ill is in principle of very great consequence,

ities there are congested conditions. It is and that it is based upon a fallacy in underequally true that in very much larger areas taking to apply a test which is not calculated we are practically without help. In my judg- to reach the truth and to find relief from a ment, no sufficiently earnest and intelligent danger which really does not exist. This proeffort has been made to bring our wants and vision of the bill is new, and it is radical. It our supply together, and so far the same _ goes to the heart of the measure. It does not forces that give the chief support to this pro- permit of compromise, and, much as I regret vision of the new bill have stubbornly re- it, because the other provisions of the meassisted any effort looking to an intelligent dis- ure are in most respects excellent and in no tribution of new immigration to meet the respect really objectionable, I am forced to needs of our vast country. In my judgment, advise that you do not approve this bill. Very no such drastic measure based upon a ground _ sincerely, yours,

which is untrue and urged for a reason which CHARLES NAGEL, Secretary. 388. THE CONCENTRATION OF CONTROL OF MONEY AND CREDIT Report of the Pujo Committee 1913

(U. 5S. 62d Congress, 3rd. Session, House Report, No. 1593, ch. iii) Ever since the publication of Henry D. Lloyd’s Pujo committee was valuable for the campaign Wealth Against Commonwealth in 1894 the charge of 1912 and served to strengthen the hands of that a small group of money masters controlled — the reformers in the first Wilson administration. American industry, transportation and credit, See for relevant material, The Autobiography of had gained acceptance. With the muckraking Robert La Follette, p. 762 ff.; L. Brandcis, Other campaign of the first’decade of the new century Peoples’ Money; J. Moody, The Truth About the this charge was substantiated in many details and Trusts; H. W. Laidler, Concentration of Con-

given wide popularity. In February 1912 the trolin American Industry; J. Moody, Masters of House of Representatives directed the Committee Capital; W. I. King, Wealth and Income of the on Banking and Currency to investigate banking People of the United States; G. Myers, History and currency with a view to necessary legislation. of Great American Fortunes, 3 Vols.; L. Corey,

A subcommittee, headed by Arsene P. Pujo, in- The House of Morgan; C. C. Regier, The

vestigated banking abuses. The chief examiner Sra of the Muckrakers; A. A. Berle and G. C.

of the Pujo committee was Samuel Untermeyer Means, Modern Corporation and Private Propof New York. The material unearthed by the _ erty.

THE CONCENTRATION OF CONTROL OF MONEY 259

. ; , ducing and trading corporations, and public

Section 2—Fact of Increasing Concentration utility corporations, by means of stockhold-

Admitted ings, voting trusts, fiscal agency contracts, or

The resources of the banks and trust com- representation upon their boards of directors, panies of the city of New York on 1911 were or through supplying the money require$5,121,245,175, which is Z1.73 per cent of the ments of railway, industrial, and public utilitotal banking resources of the country as re- ties corporations and thereby being enabled

ported by the Comptroller of the Currency. to participate in the determination of their This takes no account of the unknown re- financial and business policies. sources of the great private banking houses Fifth, through partnership or joint account whose affiliations to the New York financial arrangements between a few of the leading

institutions we are about to discuss. banking houses, banks, and trust companies That in recent years concentration of con- in the purchase of security issues of the great

trol of the banking resources and conse- interstate corporations, accompanied by unquently of credit by the groups to which we derstandings of recent growth—sometimes will refer has grown apace in the city of New called “banking ethics’”—which have had the York is defended by some witnesses and re- effect of effectually destroying competition gretted by others, but acknowledged by all between such banking houses, banks, and

to be a fact. trust companies in the struggle for business

As appears from statistics compiled by ac- or in the purchase and sale of large issues of countants for the committee, in 1911, of the such securities.

total resources of the banks and trust com- Section 4A - of Concentrat;

panies in New York City, the 20 largest held ection 4—Agents of Concentration 42.97 per cent; in 1906, the 20 largest held It is a fair deduction from the testimony 38.24 per cent of the total; in 1901, 34.97 that the most active agents in forwarding and

per cent. bringing about the concentration of control of money and credit through one or another of Section 3—Processes of Concentration the processes above described have been and This increased concentration of control of | are—

money and credit has been effected princi- J. P. Morgan & Co.

pally as follows: First National Bank of New “ork

First, through consolidations of competi- National City Bank of New York tive or potentially competitive banks and Lee, Higginson & Co., of Boston and New

trust companies, which consolidations in turn York have recently been brought under sympa- Kidder, Peabody & Co., of Boston and

thetic management. New York Second, through the same powerful in- Kuhn, Loeb & Co. terests becoming large stockholders in po-

tentially competitive banks and trust com- Combined Power of Morgan & Co., the panies. This is the simplest way of acquiring First National, and National City Banks,—

control, but since it requires the largest In earlier pages of the report the power of investment of capital, it is the least used, these three great banks was separately set although the recent investments in that direc- forth. It is now appropriate to consider their tion for that apparent purpose amount to combined power as one group. tens of millions of dollars in present market First, as regards banking resources:

values. The resources of Morgan & Co. are un-

Third, through the confederation of po- known; its deposits are $163,000,000. The retentially competitive banks and trust com- sources of the First National Bank are $150,panies by means of the system of interlock- 000,000 and those of its appendage, the First

ing directorates. Security Co., at a very low estimate, $35,Fourth, through the influence which the 000,000. The resources of the National City more powerful banking houses, banks, and Bank are $274,000,000; those of its appendtrust companies have secured in the manage- age, the National City Co., are unknown,

ment of insurance companies, railroads, pro- though the capital of the latter is alone

260 DOCUMENTS OF AMERICAN History $10,000,000. Thus, leaving out of account the stock is owned by the Reading), the Lehigh very considerable part which is unknown, the Valley, the Delaware, Lackawanna & Western,

institutions composing this group have re- the Erie (controlling the New York, Sussources of upward of $632,000,000, aside from quehanna & Western), and the New York, the vast individual resources of Messrs. Mor- Ontario & Western, afford the only trans-

gan, Baker, and Stillman. portation outlets from the anthracite coal Further, as heretofore shown, the members fields. As before stated, they transport 80 per

of this group, through stockholdings, voting cent of the output moving from the mines trusts, interlocking directorates, and other re- and own and control 88 per cent of the entire lations, have become in some cases the abso- deposits. The Reading, as now organized, is

lutely dominant factor, in others the most the creation of a member of this banking

important single factor, in the control of the group—Morgan & Co. One or more members following banks and trust companies in the of the group are stockholders in that system

city of New York: and have two representatives in its direc(a) Bankers Trust Co., torate; are stockholders of the Central of New resources $250,000,000 Jersey and have four representatives in its (b) Guaranty Trust Co., directorate; are stockholders of the Lehigh resources 232,000,000 Valley and have four representatives in its (c) Astor Trust Co., directorate; are stockholders of the Delaware, resources 27,000,000 Lackawanna & Western and have nine repre(d) National Bank of Com- sentatives in its directorate; are stockholders merce, resources 190,000,000 of the Erie, and have four representatives in

(e) Liberty National Bank, its directorate; have two representatives in resources 29,000,000 the directorate of the New York, Ontario & (f{) Chase National Bank, Western; and have purchased or marketed resources 150,000,000 practically all security issues made by these (g) Farmers Loan & Trust railroads in recent years. Co., resources 135,000,000 (c) Atchison, Topeka & Sante Fe Railway: One or more members of the group are

in all, 7, with total resources stockholders and have two representatives in

of 968,000,000 the directorate of the company; and since

which, added to the known re- 1907 have purchased or procured the market-

sources of members of the ing of its security issues to the amount of

group themselves, makes $1,600,000,000 $107,244 ,000.

as the aggregate of known (d) Chesapeake & Ohio Railway: Membaaking resources in the city bers of the group have two directors in comof New York under their con- mon with this company; and since 1907, in

trol or influence. association with others, have purchased or

If there be added also the procured the marketing of its security issues resources of the Equitable Life to the amount of $85,000,000.

Assurance Society controlled (e) Chicago Great Western Railway: through stock ownership of Members of the group absolutely control this J. P. Morgan 504,000,000 system through a voting trust. ——__—____—— (f) Chicago, Milwaukee & St. Paul Rail-

the amount becomes $2,104,000,000 way: Members of the group have three di-

, rectors or officers in common with this comtion systems. others, have purchased or procured the marSecond, as regards the greater transporta- pany, and since 1909, in association with

(a) Adams Express Co.: Members of the keting of its security issues to the amount of

group have two representatives in the direc- $112,000,000. . torate of this company. (g) Chicago & Northwestern Railway: (b) Anthracite coal carriers: With the ex- Members of the group have three directors In ception of the Pennsylvania, the Reading, the common with this company, and since 1909, Central of New Jersey (a majority of whose _ in association with others, have purchased or

THE CONCENTRATION OF CONTROL OF MONEY 261 procured the marketing of its security issues (b) American Can Co.: Members of the

to the amount of $31,250,000. group have two directors in common with

(h) Chicago, Rock Island & Pacific Rail- this company. way: Members of the group have four direc- (c) J. L. Case Threshing Machine Co.: The

tors in common with this company. president of one member of the group is a (i) Great Northern Railway: One or more voting trustee of this company and the group members of the group are stockholders of and also has one representative in its directorate have marketed the only issue of bonds made and markets its securities.

by this company. (d) William Cramp Ship & Engine Build-

(j) International Mercantile Marine Co.; ing Co.: Members of the group absolutely A member of the group organized this com- control this company through a voting trust.

pany, is a stockholder, dominates it through (e) General Electric Co.: A member of a voting trust, and markets its securities. the group was one of the organizers of the (k) New York Central Lines: One or company, is a stockholder, and has always more members of the group are stockholders had two representatives in its directorate and

and have four representatives in the direc- markets its securities. torate of the company, and since 1907 have (f{) International Harvester Co.: A mempurchased from or marketed for it and its ber of the group organized the company, principal subsidiaries security issues to the named its directorate and the chairman of extent of $343,000,000, one member of the’ its finance committee, directed its managegroup being the company’s sole fiscal agent. ment, through a voting trust, and markets its (1) New York, New Haven & Hartford _ securities.

Railroad: One or more members of the (g) Lackawanna Steel Co.: Members of group are stockholders and have three repre- the group have four directors in common sentatives in the directorate of the company, with the company and, with associates, marand since 1907 have purchased from or mar- _ keted its last issue of securities.

keted for it and its principal subsidiaries se- (h) Pullman Co.: The group has two repcurity issues in excess of $150,000,000, one resentatives, Mr. Morgan and Mr. Baker, member of the group being the company’s in the directorate of this company.

sole fiscal agent. (i) United States Steel Corporation: A

(m) Northern Pacific Railway: One mem- member of the group organized this comber of the group organized this company and pany, named its directorate, and the chairis its fiscal agent, and one or more members’ man of its finance committee (which also has are stockholders and have six representatives the powers of an executive committee) is its in its directorate and three in its executive sole fiscal agent and a stockholder, and has

committee. always controlled its management.

(n) Southern Railway: Through a voting Fourth, as regards the great public utility

trust, members of the group have absolutely corporations. controlled this company since its reorganiza- (a) American Telephone and Telegraph

tion in 1894. Co.: One or more members of the group are

(0) Southern Pacific Co.: Until its separa- stockholders, have three representatives in tion from the Union Pacific, lately ordered by its directorate, and since 1906, with other the Supreme Court of the United States, associates, have marketed for it and its submembers of the group had three directors in sidiaries security issues in excess of $300,-

common with this company. 000,000.

(p) Union Pacific Railroad: Members of (b) Chicago Elevated Railways: A memthe group have three directors in common ber of the group has two officers or directors

with this company. in common with the company, and in conThird, as regards the greater producing and junction with others marketed for it in 1911

trading corporations. security issues amounting to $66,000,000.

(a) Amalgamated Copper Co.: One mem- (c) Consolidated Gas Co. of New York:

ber of the group took part in the organization Members of the group control this company of the company, still has one leading director through majority representation on its diIn common with it, and markets its securities. _ rectorate.

262 DOCUMENTS OF AMERICAN HISTORY (d) Hudson & Manhattan Railroad: One panies having total assets of $2,293,000,000. or more members of the group marketed and One hundred and five directorships in 32 have large interests in the securities of this transportation systems having a total capitalcompany, though its debt is now being ad- _ ization of $11,784,000,000 and a total mileage

justed by Kuhn, Loeb & Co. (excluding express companies and steamship

(e) Interborough Rapid Transit Co. of lines) of 150,200. New York: A member of the group is the Sixty-three directorships in 24 producing banker of this company, and the group has and trading corporations having a total cap-

agreed to market its impending bond issue of _italization of $3,339,000,000.

$170,000,000. Twenty-five directorships in 12 public util(f{) Philadelphia Rapid Transit Co.: Mem- ity corporations having a total capitalization bers of the group have two representatives in of $22,245,000,000.

the directorate of this company. In all, 341 directorships in 112 corpora(g) Western Union Telegraph Co.: Mem- tions having aggregate resources or capitalbers of the group have seven representatives ization of $22,245,000,000.

in the directorate of this company. The members of the firm of J. P. Morgan

Summary of Directorships Held by These & Co. held 72 directorships in 47 of the Members of the Group.—Exhibit 134-B ... greater corporations: George F. Baker, chairshows the combined directorships in the more man of the board, F. L. Hine, president, and important enterprises held by Morgan & Co., George F. Baker, Jr., and C. D. Norton, vice-

the First National Bank, the National City presidents, of the First National Bank of Bank, and the Bankers and Guaranty Trust New York, hold 46 directorships in 37 of the Cos., which latter two, as previously shown, greater corporaticns; and James Stillman, are absolutely controlled by Morgan & Co. chairman of the board, Frank A. Vanderlip, through voting trusts. It appears there that president, and Samuel McRoberts, J. T. Talfirm members or directors of these institu- bert, W. A. Simonson, vice-presidents, of the

tions together hold: National City Bank of New York, hold 32

One hundred and eighteen directorships in directorships in 26 of the greater corpora34 banks and trust companies having total tions; making in all for these members of resources of $2,679,000,000 and total depos- the group 150 directorships in 110 of the

its of $1,983,000,000. greater corporations. ... Thirty directorships in 10 insurance com-

389. WILSON’S FIRST INAUGURAL ADDRESS March 4, 1913 (U. S. 63d Congress, Special Session, Senate Doc. 3) In his first Inaugural Address Woodrow Wilson The Senate about to assemble will also be reaffirmed the philosophy of the New Freedom Democratic. The offices of President and which he had cnunciated during his campaign Vice-President have been put into the hands for election. The address is one of the most of Democrats. What does the change mean? notable statements of democratic faith in our That is the question that is uppermost in our political literature, and for eloquence compares ; . . favorably with Jefferson’s First Inaugural and minds to-day. That is the question I am goLincoln’s Second Inaugural. On Wilson, see R.S, 128 to try to answer, in order, if I may, to Baker, Woodrow Wilson, Life and Letters, imterpret the occasion. Vol. IV; W. E. Dodd, Woodrow Wilson; J. Ker- It means much more than the mere success ney, The Political Education of Woodrow Wilson. of a party. The success of a party means little

except when the Nation is using that party . MY FELLOW CITIZENS: for a large and definite purpose. No one can

There has been a change of government. mistake the purpose for whick the Nation It began two years ago, when the House of now seeks to use the Democratic Party. It Representatives became Democratic by a de- _ seeks to use it to interpret a change in its own cisive majority. It has now been completed. plans and point of view. Some old things with

WiLtson’s First INAUGURAL ADDRESS 263 which we had grown familiar, and which had up out of the mines and factories and out of

begun to creep into the very habit of our every home where the struggle had its intithought and of our lives, have altered their mate and familiar seat. With the great Govaspect as we have latterly looked critically | ernment went many deep secret things which upon them, with fresh, awakened eyes; have we too long delayed to look into and scrudropped their disguises and shown themselves _ tinize with candid, fearless eyes. The great

alien and sinister. Some new things, as we Government we loved has too often been look frankly upon them, willing to compre- made use of for private and selfish purposes,

hend their real character, have come to as- and those who used it had forgotten the sume the aspect of things long belicved in people. and familiar, stuff of our own convictions. At last a vision has been vouchsafed us of We have been refreshed by a new insight into our life as a whole. We see the bad with the

our own life. good, the debased and decadent with the

We see that in many things that life is very sound and vital. With this vision we approach great. It is incomparably great in its mate- new affairs. Our duty is to cleanse, to reconrial aspects, in its body of wealth, in the di- sider, to restore, to correct the evil without versity and sweep of its energy, in the indus- impairing the good, to purify and humanize tries which have been conceived and built up every process of our common life without by the genius of individual men and the hm- weakening or sentimentalizing it. There has itless enterprise of groups of men. It is great, been something crude and heartless and un-

also, very great, in its moral force. feeling in our haste to succeed and be great. Nowhere else in the world have noble men Our thought has been “Let every man look and women exhibited in more striking forms out for himself, let every generation look out the beauty and the energy of sympathy and for itself,” while we reared giant machinery

helpfulness and counsel in their efforts to which made it impossible that any but those rectify wrong, alleviate suffering, and set the who stood at the levers of control should have weak in the way of strength and hope. We a chance to look out for themselves. We had have built up, moreover, a great system of not forgotten our morals. We remembered government, which has stood through a long well enough that we had set up a policy which age as in many respects a model for those who was meant to serve the humblest as well as seek to set liberty upon foundations that will the most powerful, with an eye single to the

endure against fortuitous change, against standards of justice and fair play, and restorm and accident. Our life contains every membered it with pride. But we were very great thing, and contains it in rich abundance. _heedless and in a hurry to be great.

But the evil has come with the good, and We have come now to the sober second much fine gold has been corroded. With riches thought. The scales of heedlessness have has come inexcusable waste. We have squan- fallen from our eyes. We have made up our dered a great part of what we might have minds to square every process of our national used, and have not stopped to conserve the life again with the standards we so proudly exceeding bounty of nature, without which — set up at the beginning and have always car-

our genius for enterprise would have been ried at our hearts. Our work is a work of worthless and impotent, scorning to be care- restoration. ful, shamefully prodigal as well as admirably We have itemized with some degree of efficient. We have been proud of our industrial particularity the things that ought to be al-

achievements, but we have not hitherto tered and here are some of the chief items: stopped thoughtfully enough to count the A tariff which cuts us off from our proper

human cost, the cost of lives snuffed out, of | part in the commerce of the world, violates energies overtaxed and broken, the fearful the just principles of taxation, and makes the physical and spiritual cost to the men and Government a facile instrument in the hands women and children upon whom the dead _ of private’interests; a banking and currency weight and burden of it all has fallen pitilessly | system based upon the necessity of the Govthe years through. The groans and agony of ernment to sell its bonds fifty years ago and it all had not yet reached our ears, the sol- perfectly adapted to concentrating cash and emn, moving undertone of our life, coming — restricting credits; an industrial system

264 DocUMENTS OF AMERICAN HISTORY which, take it on all its sides, financial as well _ual right. This is the high enterprise of the

as administrative, holds capital in leading new day: To lift everything that concerns strings, restricts the liberties and limits the our life as a Nation to the light that shines opportunities of labor, and exploits without from the hearthfire of every man’s conscience renewing or conserving the natural resources and vision of the right. It is inconceivable of the country; a body of agricultural activ- that we should do this as partisans; it is inities never yet given the efficiency of great conceivable we should do it in ignorance of business undertakings or served as it should the facts as they are or in blind haste. We be through the instrumentality of science shall restore, not destroy. We shall deal with taken directly to the farm, or afforded the our economic system as it is and as it may be facilities of credit best suited to its practical modifed, not as it might be if we had a clean

needs; water-courses undeveloped, waste sheet of paper to write upon; and step by places unreclaimed, forests untended, fast dis- step we shall make it what it should be, in

appearing without plan or prospect of re- the spirit of those who question their own newal, unregarded waste heaps at every mine. wisdom and seek counsel and knowledge, not We have studied as perhaps no other nation — shallow self-satisfaction or the excitement of has the most effective means of production, excursions whither they can not tell. Justice,

but we have not studied cost or economy as and only justice, shall alway be our motto. we should either as organizers of industry, as And yet it will be no cool process of mere

statesmen, or as individuals. science. The Nation has been deeply stirred,

Nor have we studied and perfected the — stirred by a solemn passion, stirred by the means by which government may be put at knowledge of wrong, of ideals lost, of governthe service of humanity, in safeguarding the ment too often debauched and made an inhealth of the Nation, the health of its men — strument of evil. The feelings with which we and its women and its children, as well as their face this new age of right and opportunity rights in the struggle for existence. This is no sweep across our heartstrings like some air sentimental duty. The firm basis of govern- out of God’s own presence, where justice and ment is justice, not pity. These are matters of | mercy are reconciled and the judge and the justice. There can be no equality’ or oppor- brother are one. We know our task to be no tunity, the first essential of justice inthe body mere task of politics but a task which shall politic, if men and women and children be — search us through and through, whether we not shielded in their lives, their very vitality, be able to understand our time and the need from the consequences of great industrial and of our people, whether we be indeed their social processes which they can not alter, spokesmen and interpreters, whether we have control, or singly cope with. Society must see _ the pure heart to comprehend and the rectified to it that it does not itself crush or weaken or — will to choose our high course of action.

damage its own constituent parts. The first This is not a day of triumph; it 1s a day of duty of law is to keep sound the society it dedication. Here muster, not the forces of serves. Sanitary laws, pure food laws, and party, but the forces of humanity. Men’s laws determining conditions of labor which hearts wait upon us; men’s lives hang in the individuals are powerless to determine for balance; men’s hopes call upon us to say themselves are intimate parts of the very what we will do. Who shall live up to the

business of justice and legal efficiency. great trust? Who dares fail to try? I sumThese are some of the things we ought to mon all honest men, all patriotic, all forwarddo, and not leave the others undone, the old- looking men, to my side. God helping me, I fashioned, never-to-be-neglected, fundamen- will not fail them, if they will but counsel and tal safeguarding of property and of individ- sustain me!

Tuer REPUDIATION OF ‘‘DOLLAR DIPLOMACY’? 265 | 390. THE REPUDIATION OF “DOLLAR DIPLOMACY” Statement from President Wilson March 19, 1913 (American Journal of International Law, Vol. VII, p. 338-9) For the history of the Chinese loan see Doc. No. implied in requesting the bankers to under386. The American bankers acquiesced in the posi- take the loan might conceivably go to the tion of the Government and withdrew from the length in some unhappy contingency of for-

consortium. cible interference in the financial, and even the political, affairs of that great oriental state, We are informed that at the request of the just now awakening to a consciousness of its last administration a certain group of Amer- power and its obligations to its people. The ican bankers undertook to participate in the conditions include not only the pledging of

loan now desired by the Government of particular taxes, some of them antiquated China (approximately $125,000,000.) Our and burdensome, to secure the loan, but also government wished American bankers to par- the administration of those taxes by foreign ticipate along with the bankers of other na- agents. The responsibility on the part of our tions, because it desired that the good will of | government implied in the encouragement of the United States towards China should be ex- a loan thus secured and administered is plain

hibited in this practical way, that American enough and is obnoxious to the principles capital should have access to that great coun- upon which the government of our people try, and that the United States should be in rests. a position to share with the other Powers any The Government of the United States is political responsibilities that might be asso- not only willing, but earnestly desirous, of ciated with the development of the foreign aiding the great Chinese people in every way relations of China in connection with her that is consistent with their untrammeled deindustrial and commercial enterprises. The velopment and its own immemorial prinpresent administration has been asked by this ciples. The awakening of the people of China group of bankers whether it would also re- to a consciousness of their possibilities under

quest them to participate in the loan. The free government is the most significant, if representatives of the bankers through whom not the most momentous event of our generathe administration was approached declared _ tion. With this movement and aspiration the that they would continue to seek their share American people are in profound sympathy. of the loan under the proposed agreements They certainly wish to participate, and par-

only if expressly requested to do so by the ticipate very generously, in opening to the government. The administration has declined Chinese and to the use of the world the alto make such request because it did not ap- most untouched and perhaps unrivalled reprove the conditions of the loan or the impli- — sources of China.

cations of responsibility on its own part which The Government of the United States is it was plainly told would be involved in the earnestly desirous of promoting the most ex-

request. tended and intimate trade relationships beThe conditions of the loan seem to us to tween this country and the Chinese Republic.

touch very nearly the administrative inde- ... This is the main material interest of its pendence of China itself; and this adminis- citizens in the development of China. Our tration does not feel that 1t ought, even by interests are those of the open door—a door implication, to be a party to those conditions. of friendship and mutual advantage. This is The responsibility on its part which would be the only door we care to enter.

266 DOCUMENTS OF AMERICAN HiIsTorRyY 391. TARIFF REVISION UNDER WILSON Address of President Wilson to Congress asking revision of the Payne-Aldrich Tariff April 8, 1913 (Congressional Record, 63d Congress, Ist Session, Vol. L, p. 130 ff.) Wilson had pledged tariff reform in his cam- one who looks the facts squarely in the face paign for the presidency; immediately upon his or knows anything that lies beneath the suraccession to office he called Congress into a special face of action can fail to perceive the prinsession, and on April 8, reviving a custom that ciples hich ff legislation h had not been observed since Jefferson, addressed ples upon which recent tari legislation has Congress in person. In response to Wilson’s de- been based. We long ago passed beyond the mand for downward revision Congress promptly modest notion of “protecting” the industries passed the Underwood tariff which became law 0f the country and moved boldly forward to

October 3, 1913. See, R. S. Baker, Woodrow the idea that they were entitled to the direct Wilson, Life and Letters, Vol. IV, ch. iii; F.W. patronage of the Government. For a long Taussig, Tariff History of the United States, time—a time so long that the men now active 1931 ed.; H. P. Willis, “The Tariff of 1913,” in public policy hardly remember the condi-

Journal Pol. Econ, Vol. XXII. tions that preceded it—we have sought in our GENTLEMEN OF THE CONGRESS: tariff schedules to give each group of manu... I have called the Congress together facturers or producers what they themselves in extraordinary session because a duty was thought that they needed in order to mainlaid upon the party now in power at the re-__ tain a practically exclusive market as against

cent elections which it ought to perform the rest of the world. Consciously or unconpromptly, in order that the burden carried sciously, we have built up a set of privileges by the people under existing law may be and exemptions from competition behind lightened as soon as possible, and in order, which it was easy by any, even the crudest, also, that the business interests of the coun- forms of combination to organize monopoly: try may not be kept too long in suspense as to until at last nothing is normal, nothing is what the fiscal changes are to be to which obliged to stand the tests of efficiency and they will be required to adjust themselves. It economy, in our world of big business, but is clear to the whole country that the tariff | everything thrives by concerted arrangement. duties must be altered. They must be changed Only new principles of action will save us to meet the radical alteration in the condi- from a final hard crystallization of monopoly tions of our economic life which the country and a complete loss of the influences that has witnessed within the last generation. quicken enterprise and keep independent enWhile the whole face and method of our in-_ ergy alive.

dustrial and commercial life were being It is plain what those principles must be. changed beyond recognition the tariff sched- We must abolish everything that bears even ules have remained what they were before the semblance of privilege or of any kind of the change began, or have moved in the di- artificial advantage, and put our business men

rection they were given when no large cir- and producers under the stimulation of a cumstance of our industrial development was constant necessity to be efficient, economical, what it is to-day. Our task is to square them and enterprising, masters of competitive suwith the actual facts. The sooner that is done premacy, better workers and merchants than the sooner we shall escape from suffering from any in the world. Aside from the duties laid the facts and the sooner our men of business upon articles which we do not, and probably

will be free to thrive by the law of nature— can not, produce, therefore, and the duties the nature of free business—instead of by the laid upon luxuries and merely for the sake of law of legislation and artificial arrangement. the revenues they yield, the object of the We have seen tariff legislation wander very — tariff duties henceforth laid must be effective

far afield in our day—very far indeed from competition, the whetting of American wits the field in which our prosperity might have by contest with the wits of the rest of the had a normal growth and stimulation. No world.

WILSON’S MESSAGE ON MEXICAN RELATIONS 267 It would be unwise to move toward this to the excitements and responsibilities of end headlong, with reckless haste, or with greater freedom our methods may in some strokes that cut at the very roots of what has respects and at some points seem heroic but grown up amongst us by long process and at remedies may be heroic and yet be remedies. our own invitation. It does not alter a thing It is our business to make sure that they are

to upset it and break it and deprive it of a genuine remedies. Our object is clear. If our chance to change. It destroys it. We must motive is above just challenge and only an make changes in our fiscal laws, in our fiscal occasional error of judgment is chargeable system, whose object is development, a more against us, we shall be fortunate. : free and wholesome development, not revo- We are called upon to render the country lution or upset or confusion. We must build a great service in more matters than one. Our up trade, especially foreign trade. We need _ responsibility should be met and our methods the outlet and the enlarged field of energy should be thorough, as thorough as moderate more than we ever did before. We must build and well considered, based upon the facts as up industry as well, and must adopt freedom _ they are, and not worked out as if we were in the place of artificial stimulation only so beginners. We are to.deal with the facts of far as it will build, not pull down. In dealing our own day, with the facts of no other and with the tariff the method by which this may to make laws which square with those facts. be done will be a matter of judgment exer- It is best, indeed it is necessary, to begin with cised item by item. To some not accustomed the tariff. . . .

392. WILSON’S DENUNCIATION OF THE TARIFF LOBBY Statement to the Press May 26, 1913 (Associated Press Dispatch, Washington, May 26, 1913) I think that the public ought to know the the people at large should have no lobby and extraordinary exertions being made by the be voiceless in these matters, while great bodlobby in Washington to gain recognition for ies of astute men seek to create an artificial certain alterations of the Tariff bill. Wash- opinion and to overcome the interests of the

ington has seldom seen so numerous, so in- public for their private profit. It is thordustrious or so insidious a lobby. The news- oughly worth the while of the people of this papers are being filled with paid advertise- country to take knowledge of this matter. ments calculated to mislead the judgement Only public opinion can check and destroy it. of public men not only, but also the public The Government in all its branches ought opinion of the country itself. There is every to be relieved from this intolerable burden evidence that money without limit is being and this constant interruption to the calm spent to sustain this lobby and to create an progress of debate. I know that in this I am appearance of a pressure of opinion antag- speaking for the members of the two Houses onistic to some of the chief items of the Tariff who would rejoice as much as I would to be bill. released from this unbearable situation. It is of serious interest to the country that

393. WILSON’S SPECIAL MESSAGE ON MEXICAN RELATIONS August 27, 1913 (Congressional Record, 63d Congress, Ist. Sess., Vol. 50, p. 3803-04) The Mexican situation reached a crisis in the R.S. Baker, Woodrow Wilson, Life and Letters, summer of 1913. For the diplomatic and political Vol. IV, ch. vi; J. M. Callahan, American Foreign

background of our relations with Mexico at Policy in Mexican Relations, ch. xiv. this time, see J. F. Rippy, The United States and

Mexico, ch. xx; E. E. Robinson and V. J. West, Gentlemen of the Congress: It is clearly my The Foreign Policy of Woodrow Wilson, passim; duty to lay before you, very fully and with-

268 DOCUMENTS OF AMERICAN HISTORY out reservation, the facts concerning our pres- been undertaken. But the proposals he sub-

ent relations with the Republic of Mexico. mitted were rejected... . The deplorable posture of affairs in Mexico I am led to believe that they were rejected I need not describe, but I deem it my duty to _ partly because the authorities at Mexico City

speak very frankly of what this Government had, been grossly misinformed and misled has done and should seek to do in fulfillment upon two points. They did not realize the of its obligation to Mexico herself, asa friend spirit of the American people in this matter, and neighbor, and to American citizens whose — their earnest friendliness and yet sober deter-

lives and vital interests are daily affected by mination that some just solution be found for the distressing conditions which now obtain the Mexican difficulties; and they did not be-

beyond our southern border... . lieve that the present administration spoke

The peace, prosperity and contentment of through Mr. Lind for the people of the

Mexico mean more, much more, to us than United States. The effect of this unfortunate merely an enlarged field for our commerce misunderstanding on their part is to leave and enterprise. They mean an enlargement of them singularly isolated and without friends the field of self-government and the realiza- who can effectually aid them. So long as the tion of the hopes and rights of a nation with misunderstanding continues we can only whose best aspirations, so long suppressed await the time of their awakening to a realand disappointed, we deeply sympathize. We ization of the actual facts. We can not thrust shall yet prove to the Mexican people that our good offices upon them. The situation we know how to serve them without first must be given a little more time to work itthinking how we shall serve ourselves. ... self out in the new circumstances; and I beMexico has a great and enviable future be- _lieve that only a little more will be necessary. fore her, if only she choose and attain the [For the circumstances are new. The rejecpaths of honest constitutional government. tion of our friendship makes them new and The present circumstances of the Republic, will inevitably bring its own alterations in I deeply regret to say, do not seem to prom- the whole aspect of affairs. The actual situise even the foundations of such a peace. We ation of the authorities at Mexico City will have waited many months, months full of | presently be revealed.

peril and anxiety for the conditions there to Meanwhile what is it our duty to do? improve, and they have not improved. They Clearly everything that we do must be rooted

have grown worse, rather. .. . War and dis- in patience and done with calm and disinorder, devastation and confusion, seem to terested deliberation. Impatience on our part threaten to become the settled fortune of the would be childish, and would be fraught with distracted country. As friends we could wait every risk of wrong and folly. We can afford no longer for a solution which every week to exercise the self-restraint of a really great seemed further away. It was our duty at least nation which realizes its own strength and to volunteer our good offices—to offer to as- scorns to misuse it. It was our duty to offer sist, if we might, in effecting some arrange- our active assistance. It is now our duty to ment which would bring relief and peace and show what true neutrality will do to enable set up a universally acknowledged political the people of Mexico to set their affairs in

authority there. order again, and wait for a further opportun-

Accordingly, I took the liberty of sending ity to offer our friendly counsels. The door the Hon. John Lind, formerly governor of is not closed against the resumption, either Minnesota, as my personal spokesman and upon the initiative of Mexico or upon our representative, to the City of Mexico, with own, of the effort to bring order out of the

the following instructions: confusion by friendly cooperative action, [Instructions follow]. ... should fortunate occasion offer. Mr. Lind executed his delicate and difficult While we wait, the contest of the rival

mission with singular tact, firmness, and good forces will undoubtedly for a little while be

judgement, and made clear to the authorities sharper than ever, just because it will be at the City of Mexico not only the purpose - plain that an end must be made of the existof his visit but also the spirit in which it had ing situation, and that very promptly; and

Witson’s MoBILE ADDRESS 269 with the increased activity of the contending For the rest, I deem it my duty to exercise factions will come, it is to be feared, in- the authority conferred upon me by the law creased danger to the non-combatants in of March 14, 1912, to see to it that neither Mexico, as well as to those actually in the side of the struggle now going on in Mexico

field of battle. The position of outsiders is receive any assistance from this side the always particularly trying and full of hazard border. I shall follow the best practice of na-

where there is civil strife and a whole tions in the matter of neutrality by forbid-

country is upset. We should earnestly urge ding the exportation of arms or munitions of all Americans to leave Mexico at once, and war of any kind from the United States to should assist them to get away in every way any part of the Republic of Mexico—a policy

possible—not because we would mean to suggested by several interesting precedents slacken in the least our efforts to safeguard and certainly dictated by many manifest contheir lives and their interests, but because it siderations of practical expediency. We can is imperative that they should take no un- not in the circumstances be partisans of necessary risks when it is physically possible either party to the contest that now distracts for them to leave the country. We should let Mexico, or constitute ourselves the virtual every one who assumes to exercise authority umpire between them. in any part of Mexico know in the most un- I am happy to say that several of the great _ equivocal way that we shall vigilantly watch Governments of the world have given this the fortunes of those Americans who can not Government their generous moral support in get away, and shall hold those responsible for urging upon the provisional authorities at the

their sufferings and losses to a definite City of Mexico the acceptance of our profreckoning. That can be and will be made fered offices in the spirit in which they were plain beyond the possibility of a misunder- made... . standing.

394. WILSON’S MOBILE ADDRESS October 27, 1913 (U. S. 63d Congress, Ist Session, Senate Doc. 226) This address delivered before the Southern Com- about to be opened, while we physically cut mercial Congress at Mobile, Alabama, announced two continents asunder, we spiritually unite

the Wilson policy toward Latin-America. Though them. It is a spiritual union which we the promises of this address were not consistently seek... .

observed, relations with the Latin-American states There j larity ab he hi

were materially improved during the Wilson ad- © 3S one pecu larity about ¢ le istory -ministrations. See, E. E. Robinson and V. J. of the Latin American States which 1 am West, The Foreign Policy of Woodrow Wilson; SUTE they are keenly aware of. You hear of

J. F. Rippy, The United States and Mexico, “concessions” to foreign capitalists in Latin ch. xx; R. S. Baker, Woodrow Wilson, Life and America. You do not hear of concessions to

Letters, Vol. IV, chs. ii, vi. foreign capitalists in the United States. They are not granted concessions. They are invited

... The future, ladies and gentlemen, is to make investments. The work is ours, going to be very different for this hemisphere though they are welcome to invest in it. We

from the past. These States lying to the do not ask them to supply the capital and south of us, which have always been our do the work. It is an invitation, not a privineighbors, will now be drawn closer to us by lege; and States that are obliged, because innumerable ties, and, I hope, chief of all, by their territory does not lie within the main the tie of a common understanding of each field of modern enterprise and action, to other. Interest does not tie nations together; grant concessions are in this condition, that it sometimes separates them. But sympathy foreign interests are apt to dominate their and understanding does unite them, and I° domestic affairs, a condition of affairs always

believe that by the new route that Is just dangerous and apt to become intolerable.

210 DOCUMENTS OF AMERICAN HISTORY What these States are going to see, therefore, hind all this which is dearer than anything

is an emancipation from the subordination, else to the thoughtful men of America. I which has been inevitable, to foreign enter- mean the development of constitutional prise and an assertion of the splendid charac- liberty in the world. Human rights, national ter which, in spite of these difficulties, they integrity, and opportunity as against matehave again and again been able to demon- rial interests—that, ladies and gentlemen, is

strate. The dignity, the courage, the self- the issue which we now have to face. I want possession, the self-respect of the Latin to take this occasion to say that the United American States, their achievements in the States will never again seek one additional face of all these adverse circumstances, de- foot of territory by conquest. She will devote

serve nothing but the admiration and ap-_ herself to showing that she knows how to plause of the world. They have had harder make honorable and fruitful use of the terribargains driven with them in the matter of tory she has, and she must regard it as one loans than any other peoples in the world. of the duties of friendship to see that from

Interest has been exacted of them that was no quarter are material interests made

not exacted of anybody else, because the risk superior to human liberty and national op-

was said to be greater; and then securities portunity. I say this, not with a single were taken that destroyed the risk—an ad- thought that anyone will gainsay it, but mirable arrangement for those who were merely to fix in our consciousness what our | forcing the terms! I rejoice in nothing so real relationship with the rest of America is. much as in the prospect that they will now It is the relationship of a family of mankind be emancipated from these conditions, and devoted to the development of true constlwe ought to be the first to take part in as- tutional liberty. We know that that is the sisting in that emancipation. I think some of _ soil out of which the best enterprise springs.

these gentlemen have already had occasion We know that this is a cause which we are to bear witness that the Department of State making in common with our neighbors, bein recent months has tried to serve them in cause we have had to make it for ourselves. that wise. In the future they will draw closer Reference has been made here to-day to and closer to us because of circumstances of some of the national problems which conwhich I wish to speak with moderation and, front us as a Nation. What is at the heart of

I hope, without indiscretion. all our national problems? It is that we have We must prove ourselves their friends, and seen the hand of material interest sometimes champions upon terms of equality and honor. about to close upon our dearest rights and You cannot be friends upon any other terms possessions. We have seen material interests than upon the terms of equality. You cannot _ threaten constitutional freedom in the United be friends at all except upon the terms of States. Therefore we will now know how to honor. We must show ourselves friends by sympathize with those in the rest of Amer-

comprehending their interest whether it ica who have to contend with such powers, squares with our own interest or not. It isa not only within their borders but from outvery perilous thing to determine the foreign side their borders also... . policy of a nation in the terms of material In emphasizing the points which must interest. It not only is unfair to those with unite us in sympathy and in spiritual interest whom you are dealing, but it is degrading as with the Latin American peoples, we are only

regards your own actions, emphasizing the points of our own life, and Comprehension must be the soil in which we should prove ourselves untrue to our own

shall grow all the fruits of friendship, and _ traditions if we proved ourselves untrue there is a reason and a compulsion lying be- friends to them... .

THE TAMPICO INCIDENT 271 395. THE TAMPICO INCIDENT Address of President Wilson to Congress on the Mexican Crisis April 20, 1914 (Foreign Relations of the United States, 1914, p. 474 ff.) On April 9 several sailors from the U. S. 5S. The incident can not be regarded as a Dolphin were arrested at Tampico by officers of trivial one, especially as two of the men arPresident Huerta. Admiral Mayo at once de- yested were taken from the boat itself—that

manded an1S apology and a salute ° thesustaine edi is to say, from the territory__. of the. United guns. demand was y e meri..: can government, though in as much as the United States but fob . stooe tse might

States did not recognize Huerta, it presented ave Deen a r uted to the ignora pats obvious legal difficulties. Huerta refused to com- TO8aNCE of a single officer. Unfortunately, at

ply with the American demands, and April 20 Was not an isolated case. A series of inciWilson appeared before Congress and asked for dents have recently occurred which can not authority to take such action as the situation but create the impression that the representarequired. The House, by a vote of 323-29, andthe tives of General Huerta were willing to go Senate by a vote of 72-13, gave Wilson the neces- out of their way to show disregard for the sary authority. On the 22d, Admiral +s . dignity and Fletcher rights of this Government and landed marines at Vera Cruz, ws seized the customs f . . elt perfectly safe in doing what they pleased, house andship. prevented the landing ¢ hirri;a from a German This action brought the ma ingof freemunitions to show in manyking ways their

United States and Mexico to the verge of war, ‘ation and contempt. me

and threatened, moreover, to unite all of Mexico The manifest danger of such a situation behind Huerta. From this unhappy situation both was that such offenses might grow from bad

nations were rescued by the timely intervention to worse until something happened of so of the ABC. powers wit ne om of media-~ —_ gross and intolerable a sort as to lead directly

ion.seesee oc. O. Woodrow . or e€ ampico Inclinevit bl :ItWe dent, R. S. Baker, Wilson, Vol. IV, alyand to armed conflict. was

, necessary that the apologies of General

p. 313ff.; ff.;C.M. E. Curti, andRucker Worlduerta Peace, Huert d hi ; p. 181 P. Lamar, LifeBryan of Joseph an 1s representatives should go Lamar; J. M. Callahan, American Foreign Re- much further, that they should be such as to lations in Mexican Policy. The official correspond- attract the attention of the whole populaence can be found in Foreign Relations of the tion to their significance, and such as to im-

United States, 1914. press upon General Huerta himself the neces-

| sity of seeing to it that no further occasion

Gentlemen of the Congress: for explanations and professed regrets should

. It is my duty to call your attention to a_ arise. I, therefore, felt it my duty to sustain situation which has arisen in our dealings Admiral Mayo in the whole of his demand with General Victoriano Huerta at Mexico and to insist that the flag of the United States City which calls for action, and to ask your should be saluted in such a way as to indicate

oevice ane Doperahon in aeng upon it. OnHuertistas. a new spirit and attitude on the part of the e of April a paymaster of the U.S.S. Dolphin landed at the Iturbide Bridge land- Such a salute, General Huerta has refused ing at Tampico with a whaleboat and boat’s and I have come to ask your approval and

ew he take Ouhile one in I neve he _support , engaged in en loading the sue. in the course I now propose to purboat was arrested by an officer and squad of This Government can, I earnestly hope, in men or tne army ° weneral Huerta... . Ad- no circumstances be forced into war with the Mmiral Mayo regarded the arrest as so serious people of Mexico. Mexico is torn by civil

airont olrered, tna wasbut notdemanded satistied Nee he strife. If we are to accept the tests of General its own ologies that the flag constitution, it has no government. of the United States be saluted with special Huerta has set his power up in the City of ceremony by the military commander of the Mexico, such as it is, without right and by

port. methods for which there can be no justifica-

272 DOCUMENTS OF AMERICAN HISTORY tion. Only part of the country is under his implications of interference if we deal with control. If armed conflict should unhappily it promptly, firmly, and wisely. come as a result of his attitude of personal No doubt I could do what is necessary in resentment toward this Government, we the circumstances to enforce respect for our should be fighting only General Huerta and Government without recourse to the Conthose who adhere to him and give him their gress, and yet not exceed my constitutional support, and our object would be only to re- powers as President; but I do not wish to act store to the people of the distracted Republic ina manner possibly of so grave consequence

the opportunity to set up again their own except in close conference and cooperation

laws and their own government. with both the Senate and House. I, therefore,

But I earnestly hope that war is not now in come to ask your approval that I should use question. I believe I speak for the American the armed forces of the United States in such people when I say that we do not desire to ways and to such an extent as may be necescontrol in any degree the affairs of our sister sary to obtain from General Huerta and his

Republic. Our feeling for the people of adherents the fullest recognition of the rights Mexico is one of deep and genuine friendship, and dignity of the United States, even amidst and every thing that we have so far done or _ the distressing conditions now unhappily obrefrained from doing has proceeded from our _ taining in Mexico.

desire to help them, not to hinder or embar- There can in what we do be no thought of rass them. We would not wish even to exer- aggression or of selfish aggrandizement. We cise the good offices of friendship without seek to maintain the dignity and authority their welcome and consent. The people of of the United States only because we wish Mexico are entitled to settle their own do- always to keep our great influence unimmestic affairs in their own way, and we sin- paired for the uses of liberty, both in the

cerely desire to respect their right. The United States and wherever else it may be present situation need have none of the grave employed for the benefit of mankind.

396. MEDIATION PROTOCOL OF THE A.B.C. CONFERENCE Niagara Falls, New York, June 12, 1914

(Foreign Relations of the United States, 1914, p. 548-9) , President Wilson’s opposition to Huerta led to Protocol No. 3, June 12, 1914. retaliations by Huerta against American citizens; A Provisional Government for the United when the Mexican President refused to apologize Mexican States, constituted as hereinafter for arresting American marines at Tampico, Wil- provided, shall be recognized at Mexico City son ordered the occupation of Vera Cruz. The

as at noon onrapidly the ———— of ———situation was shapingday up for war when1914 .;) Wilson was saved by an offer of mediation by from which time it shall exercise governArgentina, Brazil and Chile. Huerta was soon mental power until the inauguration of a Condriven out of Mexico, and another conference of stitutional President. the A.B.C. powers, several lesser Latin American

states and the United States, decided to recog-

nize Carranza. The A.B.C. Conference is a Protocol No. 4, June 24, 1914.

portant not so much for its accomplishments as I. forthe indication ofthe wilingness of te United The Provisional Government refereed to in responsibility for the maintenance of American protocol No. 3 shall be constituted by agreepolicies. Other documents on the Conference can ment of the delegates representing the be found in Foreign Relations of the United parties between which the internal struggle States, 1914, p. 487 ff. A convenient summary is in Mexico is taking place. in Publications of the World Peace Foundation,

Vol. VI, No. 3. See also, J. F. Rippy, The United II. States end Mexico, ch. xx; E. E. Robinson and oo V. J. West, Foreign Policy of Woodrow Wilson; A. Upon the constitution of the ProviJ. M. Callahan, American Foreign Policy in sional Government in the City of Mexico,

Mexican Relations. the Government of the United States of

WILSON’S PANAMA CANAL TOLLS MESSAGE 273 America will recognize it immediately and gotiate for the constitution of international thereupon diplomatic relations between the commission for the settlement of the claims

two countries will be restored. of foreigners on account of damages sus-

B. The Government of the United States tained during the period of civil war as a of America will not in any form whatsoever consequence of military acts or the acts of claim a war indemnity or other international national authorities. satisfaction.

C. The Provisional Government will pro- IIT.

claim an absolute amnesty to all foreigners The three mediating Governments agree for any and all political offenses committed on their part to recognize the Provisional during the period of civil war in Mexico. Government organized as provided by SecD. The Provisional Government will ne- tion I of this protocol. 397. WILSON’S PANAMA CANAL TOLLS MESSAGE Address to Congress March 5, 1914

(Congressional Record, 63d Congress, 2d Session, Vol. LI, p. 4313) The Panama Canal Act of August 24, 1912 constitutes a mistaken economic policy from exempted vessels engaged in the coastwise trade every point of view, and is, moreover, in of the United States from payment of the cus- pJain contravention of the treaty with Great tomary canal tolls. Great Britain protested that Britain concerning the canal concluded on this exemption constituted a breach of the Canal November 18. 1901. But I have not come to

Treaty of 1901, Article III, sec. 1; see Doc. No.

355. Congress yielded to the President’s demand U%8¢ Upon you my personal views. I have and required equality of charges on all vessels. Come to state to you a fact and a situation. Wilson’s position on this question aroused general Whatever may be our own differences of approval in the United States and Great Britain, opinion concerning this much debated measand was instrumental in persuading Great Britain ure, 1s meaning is not debated outside the to follow Wilson’s leadership in Mexican rela- United States. Everywhere else the language tions. See, R. 5. Baker, Woodrow Wilson, Vol. of the treaty is given but one interpretation, and that interpretation precludes the exemp-

IV, ch. viii. ; .

Gentlemen of the Congress: tion I am asking you to repeal. We consented

I have come to you upon an errand which _ to the treaty; its language we accepted, if we can be very briefly performed, but I beg that did not originate it; and we are too big, too you will not measure its importance by the powerful, too self-respecting a nation to innumber of sentences in which I state it. No _terpret with a too strained or refined reading communication I have addressed to the Con- the words of our own promises just because

gress carried with it graver or more far- we have power enough to give us leave to reaching implications as to the interest of the read them as we please. The large thing to do country, and I come now to speak upon a _is the only thing we can afford to do, a volunmatter with regard to which I am charged in tary withdrawal from a position everywhere a peculiar degree, by the Constitution itself, questioned and misunderstood. We ought to

with personal responsibility. reverse our action without raising the ques-

I have come to ask you for the repeal of tion whether we were right or wrong, and so that provision of the Panama Canal Act of once more deserve our reputation for generAugust 24, 1912, which exempts vessels en- osity and for the redemption of every obligaged in the coastwise trade of the United gation without quibble or hesitation.

States from payment of tolls, and to urge I ask this of you in support of the foreign

upon you the justice, the wisdom, and the _ policy of the administration. I shall not know

large policy of such a repeal with the utmost how to deal with other matters of even

earnestness of which I am capable. greater delicacy and nearer consequence if In my own judgment, very fully consid- you do not grant it to me in ungrudging ered and maturely formed, that exemption measure.

274 DOCUMENTS OF AMERICAN HISTORY 398. THE BRYAN-CHAMORRO CONVENTION August 5, 1914

(U. S. Statutes at Large, Vol. XXXIX, p. 1661 ff.) The United States had been interested in an ernment of Nicaragua further grants to the Isthmian canal across Nicaragua for three- Government of the United States for a like quarters of a century. For the first convention period of ninety-nine years the right to esgranting the United States right of transit, that tablish, operate and maintain a naval base of 1867, see Malloy, ed., Treaties, Conventions, . , at such etc., Vol. II, p. 1279 ff. The Bryan-Chamorro : place on the territory of Nicaragua

Convention by which the United States secured bordering upon the Gulf of Fonseca as the lease to the Great Corn and Little Corn islands Government of the United States may select. and the Gulf of Fonseca was regarded by other The Government of the United States shall Central American States as an infringement on have the option of renewing for a further Nicaraguan sovereignty. Costa Rica and Salvador term of ninety-nine years the above leases denounced the convention before the Central and grants upon the expiration of their reAmerican Court of Justice. The Court upheld spective terms, it being expressly agreed that this protest and ruled against the United States. the territory hereby leased and the naval

Both Nicaragua and the United States disre- base which may be maintained under the garded the ruling of the Court, and it came to , an inglorious end. See S. Nearing and J. Freeman, 8! ant aforesaid shall be subject exclusively Dollar Diplomacy; D. G. Munro, The Five Re- © the laws and sovereign authority of the publics of Central America; I. J. Cox, Nicaragua United States during the terms of such lease and the United States; M. W. Williams, Anglo- and grant and of any renewal or renewals American Isthmian Diplomacy; H. G. Miller, thereof.

The Isthmian Highway, ch. xvi. ArT. III. In consideration of the foregoing stipulations and for the purposes contemArt. I. The Government of Nicaragua Plated by this Convention and for the purgrants in perpetuity to the Government of pose of reducing the present indebtedness of the United States, forever free from all tax- Nicaragua, the Government of the United ation or other public charge, the exclusive States shall, upon the date of the exchange proprietary rights necessary and convenient 0! ratification of this Convention, pay for the for the construction, operation and main- benefit of the Republic of Nicaragua the sum tenance of an inter-oceanic canal by way of of three million dollars United States gold the San Juan River and the great Lake of coin, of the present weight and fineness, to Nicaragua or by way of any route over be deposited to the order of the Government Nicaraguan territory, the details of the terms of Nicaragua in such bank or banks or with upon which such canal shall be constructed, such banking corporation as the Government operated and maintained to be agreed to by of the United States may determine, to be the two governments whenever the Govern- applied by Nicaragua upon its indebtedness ment of the United States shall notify the or other public purposes for the advancement Government of Nicaragua of its desire or in- of the welfare of Nicaragua in a manner to

tention to construct such canal. be determined by the two High Contracting

Art. II. To enable the Government of the Parties, all such disbursements to be made United States to protect the Panama Canal by orders drawn by the Minister of Finance and the proprietary rights granted to the of the Republic of Nicaragua and approved Government of the United States by the fore- by the Secretary of State of the United going article, and also to enable the Govern- States or by such person as he may designate.

ment of the United States to take any This Convention shall be ratiMed by the measure necessary to the ends contemplated High Contracting Parties in accordance with herein, the Government of Nicaragua hereby their respective laws, and the ratifications leases for a term of ninety-nine years to the thereof shall be exchanged at Washington as Government of the United States the islands soon as possible... .

in the Caribbean Sea known as Great Corn WILLIAM JENNINGS BRYAN. Island and Little Corn Island; and the Gov- EMILIANO CHAMORRO.

Toe SHREVEPORT CASE 275 399. HOUSTON, EAST & WEST TEXAS RAILWAY COMPANY v. UNITED STATES

234 U. S. 342 1914

Appeal from the United States Commerce Court. even to the extent necessary to prevent inSuit to set aside order of the Interstate Com- jurious discrimination against interstate trafmerce Commission regulating railway rates. This fe... case is generally known as the Shreveport Case. Congress is empowered to regulate,—that

Hucues, C. J. These suits were brought in is, to provide the law for the government of

the commerce court... to set aside an interstate commerce; to enact “all appropriorder of the Interstate Commerce Commis- ate legislation” for its protection and adsion, dated March 11, 1912, upon the ground vancement...As it is competent for that it exceeded the Commission’s au- Congress to legislate to these ends, unques-

thority. ... tionably it may seek their attainment by reThe gravamen of the complaint, said the quiring that the agencies of interstate

Interstate Commerce Commission, was that commerce shall not be used in such manner

the carriers made rates out of Dallas and as to cripple, retard, or destroy it. The fact other Texas points into eastern Texas which that carriers are instruments of intrastate were much lower than those which they commerce, as well as of interstate commerce, extended into Texas from Shreveport. The does not derogate from the complete and situation may be briefly described: Shreve- paramount authority of Congress over the port, Louisiana, is about 40 miles from the latter, or preclude the Federal power from Texas state line, and 231 miles from Hous- being exerted to prevent the intrastate operaton, Texas, on the line of the Houston, East tions of such carriers from being made a & West Texas and Houston and Shreveport means of injury to that which has been Companies; it is 189 miles from Dallas, confided to Federal care. Wherever the inTexas, on the line of the Texas & Pacific. terstate and intrastate transactions of carShreveport competes with both cities for the ries are so related that the government of trade of the intervening territory. The rates the one involves the control of the other, on these lines from Dallas and Houston, re- it is Congress, and not the state, that is spectively, eastward to intermediate points, entitled to prescribe the final and dominant in Texas, were much less, according to dis- rule, for otherwise Congress would be denied tance, than from Shreveport westward to the the exercise of its constitutional authority, same points. It is undisputed that the dif- and the state, and not the nation, would be ference was substantial, and injuriously af- supreme within the national field... .

fected the commerce of Shreveport. .. . It is for Congress to supply the needed

The Interstate Commerce Commission correction where the relation between intrafound that the interstate class rates out of state and interstate rates presents the evil Shreveport to named Texas points were un- to be corrected, and this it may do com-

reasonable, and it established maximum class. pletely, by reason of its control over the

rates for this traffic... . interstate carrier in all matters having such The point of the objection to the order is a close and substantial relation to interstate that, as the discrimination found by the commerce that it Is necessary or appropriate Commission to be unjust arises out of the to exercise the control for the effective govrelation of intrastate rates, maintained un- ernment of that commerce.

der state authority, to interstate rates that It is also clear that, in removing the

have been upheld as reasonable, its correc- injurious discriminations against interstate tion was beyond the Commission’s power. traffic arising from the relation of intrastate

... The invalidity of the order is chal- to interstate rates, Congress is not bound

lenged upon two grounds: to reduce the latter below what it may deem

1. That Congress is impotent to control the to be a proper standard fair to the carrier intrastate charges of an interstate carrier and to the public. Otherwise, it could pre-

276 DOCUMENTS OF AMERICAN HIsToRY vent the injury to interstate commerce only Having this power, Congress could provide by the sacrifice of its judgement as to inter- for its execution through the aid of a subState rates. Congress is entitled to maintain ordinate body; and we conclude that the its own standard as to these rates, and to. order of the Commission now in question forbid any discriminatory action by inter- cannot be held invalid upon the ground that state carriers which will obstruct the freedom it exceeded the authority which Congress of movement of interstate traffic over their could lawfully confer... . lines in accordance with the terms it es- Decree of the Commerce Court affirmed.

tablishes. Justices Lurton and Pirney dissenting. 400. WILSON’S APPEAL FOR NEUTRALITY Message to Senate, August 19, 1914 (U.S. 63 Congress, 2nd Sess. Senate Doc. 566)

The outbreak of the World War in August, 1914 conflict. Some will wish one nation, others brought an immediate Proclamation of Neutral- another, to succeed in the momentous strugity, August 4, together with a proposal to “act gle. It will be easy to excite passion and difin the interest of peace”. Two weeks later Presi- galt to allay it. Those responsible for exdent Wilson proclamation citing it will assume heavy ae responsibility, with an reinforced appealthis forofficial neutrality “in thought as awell

as in action.” responsibility for no less a thing than that the people of the United States, whose love

My fellow countrymen: I suppose that of their country and whose loyalty to its every thoughtful man in America has asked Government should unite them as Americans

himself, during these last troubled weeks, ll, bound in honor and affection to think what influence the European war may exert first of her and her interests, may be divided

upon the United States, and I take the in camps of hostile opinion, hot against each liberty of addressing a few words to you in other, involved in the war itself in impulse order to point out that it is entirely within and opinion if not in action. our own choice what its effects upon us will Such divisions amongst us would be fatal

be and to urge very earnestly upon you the to our peace of mind and might seriously | sort of speech and conduct which will best stand in the way of the proper performance safeguard the Nation against distress and of our duty as the one great nation at peace,

disaster. the one people holding itself ready to play

The effect of the war upon the United a part of impartial mediation and speak the States will depend upon what American counsels of peace and accommodation, not citizens say and do. Every man who really as a partisan, but as a friend. loves America will act and speak in the I venture, therefore, my fellow countrytrue spirit of neutrality, which is the spirit men, to speak a solemn word of warning to of impartiality and fairness and friendliness you against that deepest, most subtle, most to all concerned. The spirit of the Nation in essential breach of neutrality which may this critical matter will be determined largely spring out of partisanship, out of passionby what individuals and society and those’ ately taking sides. The United States must gathered in public meetings do and say, upon _ be neutral in fact as well as in name during

what newspapers and magazines contain, these days that are to try men’s souls. We upon what ministers utter in their pulpits, must be impartial in thought as well as in and men proclaim as their opinions on the action, must put a curb upon our sentiments

street. as well as upon every transaction that might The people of the United States are drawn _ be construed as a preference of one party to from many nations, and chiefly from the na- __ the struggle before another.

tions now at war. It is natural and inevitable My thought is of America. I am speakthat there should be the utmost variety of ing, I feel sure, the earnest wish and purpose sympathy and desire among them with re- of every thoughtful American that this great gard to the issues and circumstances of the country of ours, which is, of course, the first

TREATY OF ARBITRATION WITH CHINA 277 in our thoughts and in our hearts, should free to do what is honest and disinterested show herself in this time of peculiar trial a and truly serviceable for the peace of the Nation fit beyond others to exhibit the fine world. poise of undisturbed judgment, the dignity Shall we not resolve to put upon ourselves of self-control, the efficiency of dispassionate the restraints which will bring to our people

action; a Nation that neither sits in judg- the happiness and the great and lasting inment upon others nor is disturbed in her fluence for peace we covet for them? own counsels and which keeps herself fit and

401. TREATY OF ARBITRATION WITH CHINA September 15, 1914 (American Journal of International Law, Supplement, Vol. X, p. 268) When Bryan became Secretary of State he pro- designate two members, only one of whom ceeded to put into effect a policy of the arbitra- shall be of its own nationality; the fifth tion of international disputes that he had advo- member shall be designated by common con-

cated since the beginning of his public career. cent and shall not belong to any of the eee treaties cated for tne aren or ” ute nationalities already represented on the combetween the United States and other nations, MISSION , he shall perform the duties of

10n Commissions to a icate 18S . .

and the suspension of all preparation for war President. for the period of one year. Bryan succeeded in In case the two governments should not be concluding thirty of these treaties, and he re- able to agree on the choice of the fifth com-

ryan, . . .

garded them as his most permanent claim to missioner, the other four shall be called fame. See, M. E. Curti, Bryan and World Peace; upon to designate him, and failing an under-

C. L. Lange, The American Peace Treaties; P. standing between them, the provisions of

Hibben, Theare Peerless canbe an the Article the Hague reatiesS collected in ma /veatlies for45e ofvance: ; Convention of 1907 oni of Peace Negotiated by William Jennings The con niesion shall be organized within six months from the exchange of ratification TREATY BETWEEN CHINA AND THE UNITED of the present convention. :

The members shall be appointed for one STATES FOR THE ADVANCEMENT OF PEACE year and their appointment may not be signed at Washington, September 15, 1914; +enewed. They shall remain in office until ratifications exchanged, October 22, 1915. superseded or reappointed, or until the work

Art. I. Any disputes arising between the on which they are engaged at the time their Government of the United States of America office expires is completed... .

and the Government of the Republic of Art. III. In case a dispute should arise China, of whatever nature they may be, between the high contracting parties which shall, when ordinary diplomatic proceed- is not settled by the ordinary methods, each ings have failed and the high contracting par- party shall have a right to ask that the ties do not have recourse to arbitration, be investigation thereof be intrusted to the submitted for investigation and report to a international commission charged with makpermanent international commission con- ing a report. Notice shall be given to the stituted in the manner prescribed in the President of the international commission,

following article. who shall at once communicate with his colThe high contracting parties agree not to leagues.

resort, with respect to each other, to any In the same case the president may, after , act of force during the investigation to be consulting his colleagues and upon receiving made by the commission and before its re- the consent of a majority of the commission,

port is handed in. offer the services of the latter to each of Art. II. The international commission the contracting parties. Acceptance of that shall be composed of five members ap- offer declared by one of the two govern-

pointed as follows: each government shall ments shall be sufficient to give jurisdiction

278 DOCUMENTS OF AMERICAN HIsToRY , of the case to the commission in accordance The conclusion of the commission and the

with the foregoing paragraph. terms of its report shall be adopted by a The place of meeting shall be determined majority. The report, signed by virtue of his

by the commission itself. office, shall be transmitted by him to each

Art. IV. The two high contracting parties of the contracting parties. shall have a right, each on its own part, to The high contracting parties reserve full state to the president of the commission liberty as to the action to be taken on the what is the subject matter of the contro- report of the commission. versy. No difference in these statements, Art. VI. The present treaty shall be ratiwhich shall be furnished by way of sugges- fied by the President of the United States tion, shall arrest the action of the commis- of America, with the advice and consent of

sion. the Senate of the United States, and by the In case the cause of the dispute should President of the Republic of China. consist of certain acts already committed or It shall go into force immediately after about to be committed, the commission shall the exchange of ratifications and shall last as soon as possible indicate what measures five years. to preserve the rights of each party ought in Unless denounced six months at least beits opinion to be taken provisionally and fore the expiration of the said period of five

pending the delivery of its report. years, it shall remain in force until the ex-

Art. V. . . . The work of the commission piration of a period of twelve months after shall be completed within one year from the either party shall have notified the other of

date on which it has taken jurisdiction of its intention to terminate it... .

the case, unless the high contracting parties William Jennings Bryan.

should agree to set a different period. Kai Fu Shah. 402. THE FEDERAL TRADE COMMISSION ACT September 26, 1914

(U. S. Statutes at Large, Vol. XXXVIII, p. 717 ff.) January 20, President Wilson delivered to Con- ferred to as the commission), which shall gress a message on trusts in which he recom- be composed of five commissioners, who mended, among other things, a Jaw creating @ shall be appointed by the President, by and federal trade commission to advise, inform and with the advice and consent of the Senate.

Bone wine ntomotly intends J Bese SUB- Not more than three of the commissioners and with the energetic support of Senator New- shall be members of the sare political party. lands and Representatives Adamson, Clayton and The first commissioners appointed shall conothers, passed and approved September 26. The tinue in office for terms of three, four, five, purpose of this and the Clayton Bill, according six, and seven years, respectively, from the

to Wilson, was “to make men in a small way date of the taking effect of this Act, the of business as free to succeed as men in a big term of each to be designated by the Presiway, and to kill monopoly in the seed.” See, G. dent, but their successors shall be appointed C. Henderson, The Federal Trade Commission; for terms of seven years, except that any R. S. Baker, Woodrow Wilson, Vol. IV, ch. vil; person chosen to fill a vacancy shall be

Corporation Problems. ol

H. R. Seager and C. A. Gulick, Trust and appointed only for the unexpired term of the commissioner whom he shall succeed... . An act to create a Federal Trade Commis- Sec. 3. That upon the organization of the sion, to define tts powers and duties, and for commission and election of its chairman, the

other purposes. Bureau of Corporations and the offices of Be it enacted, That a commission is hereby Commissioner and Deputy Commissioner of

created and established, to be known as the Corporations shall cease to exist; and all Federal Trade Commission (hereinafter re- pending investigations and proceedings of

Tue Crayton Anti-TRusT ACT 279 the Bureau of Corporations shall be con- Sec. 6. That the commission shall also

tinued by the commission, .. . have power—

Sec. 5. That unfair methods of competi- (a) To gather and compile information tion in commerce are hereby declared un- concerning and to investigate from time to

lawful. time the organization, business, conduct,

The commission is hereby empowered and practices, and management of any corporadirected to prevent persons, partnerships, or tion engaged in commerce, excepting banks corporations, except banks, and common car- and common carriers subject to the Act to riers subject to the Acts to regulate com- regulate commerce, and its relation to other merce, from using unfair methods of com- corporations and to individuals, associations,

petition in commerce. and partnerships.

Whenever the commission shall have (b) To require, ... corporations en-

reason to believe that any such person, part- gaged in commerce, excepting banks, and nership, or corporation has been or is using common carriers subject to the Act to regu-

any unfair method of competition in com- late commerce, ... to file with the commerce, ... it shall issue and serve upon mission in such form as the commission may such person, partnership, or corporation a prescribe annual or special, or both annual complaint stating its charges in that re- and special, reports or answers in writing to spect, and containing a notice of a hearing specific questions, furnishing to the commisupon a day and at a place therein fixed at sion such information as it may require as least thirty days after the service of said to the organization, business, conduct, praccomplaint. The person, partnership, or corpo- tices, management, and relation to other ration so complained of shall have the right corporations, partnerships, and individuals of to appear at the place and time so fixed and the respective corporations filing such re-

show cause why an order should not be ports... .

entered by the commission requiring such (c) Whenever a final decree has been enperson, partnership, or corporation to cease tered against any defendant corporation in and desist from the violation of the law so any suit brought by the United States to charged in said complaint... . If upon such prevent and restrain any violation of the hearing the commission shall be of the opin- antitrust Acts, to make investigation, .. . ion that the method of competition in ques- of the manner in which the decree has been tion is prohibited by this Act, it shall make a or is being carried out, . . . it shall be its report in writing in which it shall state its duty to make such investigation. It shall findings as to the facts, and shall issue and transmit to the Attorney General a report cause to be served on such person, partner- embodying its findings and recommendations ship, or corporation an order requiring such as a result of any such investigation, and the person, partnership, or corporation to cease report shall be made public in the discretion and desist from using such method of com- of the commission.

petition. ... 403. THE CLAYTON ANTI-TRUST ACT October 15, 1914 (U. S. Statutes at Large XXXVIII, p. 730 ff.) This act and the Federal Trade Commission Act _. . Sec. 2. That it shall be unlawful for embodied a large part of Wilson’s ideas of the any person engaged in commerce, in the regulation of business. For a general expression course of such commerce, either directly or ? of the Wilsonian policy, see The New Freedom. indirectly to discriminate in price between The most important sections of the Clayton diff h price : law were those dealing with labor. For the judi- erent purchasers of commodities which cial construction of these labor provisions, see commodities are sold for use, consumption, Doc. No. 445. The legislative history of the Clay- or resale within the United States or ton Act is told in R. S. Baker, Woodrow Wilson, any ... other place under the jurisdiction

Life and Letters, Vol. IV. of the United States, where the effect of such

280 DocuMENTS oF AMERICAN History discrimination may be to substantially les- from the date of the approval of this act sen competition or tend to create a mo- no person shall at the same time be a dinopoly in any line of commerce: .. . rector or other officer or employee of more Sec. 3. That it shall be unlawful for any than one bank, banking association or trust person engaged in commerce, to lease or company, organized or Operating under the make a sale of goods, ... or other com- laws of the United States, either of which modities, ... for use, consumption or re- has deposits, capital, surplus, and undivided sale within the United States or... other profits aggregating more than $5,000,000; place under the jurisdiction of the United and no private banker or person who is a States, or fix a price charged therefor, or dis- director in any bank or trust company, orcount from, or rebate upon, such price, on ganized and operating under the laws of a the condition, ... that the lessee or pur- State, having deposits, capital, surplus, and chaser thereof shall not use or deal in the undivided profits aggregating more than goods, . . . or other commodities of a com- $5,000,000, shall be eligible to be a director petitor or competitors of the lessor or seller, in any bank or banking association organwhere the effect of such lease, sale, or con- ized or operating under the laws of the tract for sale or such condition, agreement, United States... . or understanding may be to substantially That from and after two years from the lessen competition or tend to create a mo-_ date of the approval of this Act no person

nopoly in any line of commerce... . at the same time shall be a director in any Sec. 6. That the labor of a human being two or more corporations, any one of which is not a commodity or article of commerce. has capital, surplus, and undivided profits Nothing contained in the anti-trust laws aggregating more than $1,000,000, engaged shall be construed to forbid the existence in whole or in part in commerce, other than and operation of labor, agricultural, or horti- banks, banking associations, trust companies

cultural organizations, instituted for the and common carriers subject to the Act to purposes of mutual help, and not having regulate commerce, approved February 4th, capital stock or conduced for profit, or to 1887, if such corporations are or shall have forbid or restrain individual members of such been theretofore, by virtue of their business organizations from lawfully carrying out the and location of operation, competitors, so legitimate objects thereof; nor shall such that the elimination of competition by agreeorganizations, or the members thereof, be ment between them would constitute a vioheld or construed to be illegal combinations lation of any of the provisions of any of

or conspiracies in restraint of trade, under the anti-trust laws... .

the anti-trust laws. Sec. 10. That after two years from the ap-

sec. 7. That no corporation engaged in proval of this Act no common carrier encommerce shall acquire, directly or indi- gaged in commerce shall have any dealings rectly, the whole or any part of the stock in securities, supplies, or other articles of or other share capital of another corporation commerce, ... to the amount of more than engaged also in commerce, where the effect $50,000, in the aggregate, in any one year, of such acquisition may be to substantially with another corporation, firm, partnership lessen competition between the corporation or association when the said common carrier whose stock is so acquired and the corpora- shall have upon its board of directors or as tion making the acquisition, or to restrain its president, manager, or as its purchasing such commerce in any section or community, or selling officer, or agent in the particular or tend to create a monopoly of any line of transaction, any person who is at the same

commerce. ... time a director, manager, or purchasing or This section shall not apply to corpora- selling officer of, or who has any substantial

tions purchasing such stock solely for in- interest in, such other corporation, firm, vestment and not using the same by voting partnership, or association, unless and except or otherwise to bring about, or in attempt- such purchases shall be made from, or such ing to bring about, the substantial lessening dealings shall be with, the bidder whose bid

of competition. ... is the most favorable to such common carSec. 8. That from and after two years rier, to be ascertained by competitive bid-

Witson’s VETO oF LITERACY TEST FOR IMMIGRANTS 281 ding under regulations to be prescribed by ing any relation of employment, or from rule or otherwise by the Interstate Com- ceasing to perform any work or labor, (Or

merce Commission... . from recommending, advising, or persuading Sec. 20. That no restraining order or in- others by peaceful means so to do; or from junction shall be granted by any court of the attending at any place where any such person

United States, or a judge or the judges or persons may lawfully be, for the pur-

thereof, in any case between an employer pose of peacefully obtaining or communicatand employees or between employers and _ ing information, or from peacefully persuademployees, or between employees, or between ing any person to work or to abstain from persons employed and persons seeking em- working; or from ceasing to patronize or to ployment, involving, or growing out of, a employ any party to such dispute, or from dispute concerning terms or conditions of recommending, advising, or persuading others employment, unless necessary to prevent ir- by peaceful and lawful means so to do; or reparable injury to property, or to a property from paying or giving to, or withholding right, of the party making the application, from, any person engaged in such dispute,

for which injury there is no adequate any strike benefits or other moneys or things

remedy at law, and such property or property of value; or from peaceably assembling in right must be described with a particularity a lawful manner, and for lawful purposes; or in the application, which must be in writing from doing any act or thing which might

and sworn to by the applicant or by his lawfully be done in the absence of such dis-

agent or attorney. pute by any party thereto; nor shall any of

And no such restraining order or injunc- the acts specified in this paragraph be contion shall prohibit any person or persons, sidered or held to be violations of any law whether singly or in concert, from terminat- of the United States.

404. WILSON’S VETO OF LITERACY TEST FOR IMMIGRANTS January 28, 1915 (Congressional Record, 63d Congress, 3d. session, Vol. LII, p. 2481-2) A similar act had been vetoed by Presidents In two particulars of vital consequence Cleveland and Taft; a bill incorporating the this bill embodies a radical departure from main features of the Act of 1915 was passed over the traditional and long established policy

President Wilson’s veto, in 1917. of this country, a policy in which our peoTo the House of Representatives: It is with ple have conceived the very character of unaffected regret that I find myself con- their Government to be expressed, the very strained by clear conviction to return this mission and spirit of the Nation in respect bill without my signature. Not only do I of its relations to the peoples of the world feel it to be a very serious matter to exercise outside their borders. It seeks to all but the power of veto in any case, because it close entirely the gates of asylum which involves opposing the single judgement of have always been open to those who could the President to the judgement of a ma- find nowhere else the right and opportunity jority of both Houses of the Congress ... of constitutional agitation for what they but also because this particular bill is in so conceived to be the natural and inalienable many important respects admirable, well rights of men; and it excludes those to conceived, and desirable. Its enactment into whom the opportunities of elementary edulaw would undoubtedly enhance the efficiency cation have been denied, without regard to

and improve the methods of handling the _ their character, their purposes, or their important branch of the public service to natural capacity. which it relates. But candor and a sense of Restrictions like these, adopted earlier in duty with regard to the responsibility so our history as a Nation, would very maclearly imposed upon me by the Constitu- terially have altered the course and cooled tion in matters of legislation leave me no the humane ardors of our politics. The right

choice but to dissent. of political asylum has brought to this coun-

282 DOCUMENTS OF AMERICAN HisrTory try many a man of noble character and _ they have already had one of the chief of elevated purpose who was marked as an out- _the opportunities they seek, the opportunity law in his own less fortunate land, and who of education. The object of such provisions has yet become an ornament to our citizen- is restriction, not selection.

ship and to our public councils. The children If the people of this country have made and compatriots of these illustrious Ameri- up their minds to limit the number of cans must stand amazed to see the repre- immigrants by arbitrary tests and so reverse sentatives of their Nation now resolved, in the policy of all the generations of Amerithe fullness of our national strength and at cans that have gone before them, it is their the maturity of our great institutions, to right to do so. I am their servant and have risk turning such men back from our shores no license to stand in their way. But I do

without test of quality or purpose. It is not believe that they have. I respectfully difficult for me to believe that the full effect submit that no one can quote their mandate of this feature of the bill was realized when to that effect. Has any political party ever it was framed and adopted, and it is im-- avowed a policy of restriction in this funda-

possible for me to assent to it in the form mental matter, gone to the country on it,

in which it is here cast. and been commissioned to control its legislaThe literacy test and the tests and re- tion? Does this bill rest upon the conscious

strictlons which accompany it constitute an and universal assent and desire of the Ameri-

even more radical change in the policy of can people? I doubt it. It is because I the Nation. Hitherto we have generously doubt it that I make bold to dissent from kept our doors open to all who were not it. I am willing to bide by the verdict, but unfitted by reason of disease or incapacity not until it has been rendered. Let the for self-support or such personal records and platforms of parties speak out upon this antecedents as were likely to make them a_ policy and the people pronounce their wish. menace to our peace and order or to the The matter is too fundamental to be settled wholesome and essential relationships of life. otherwise.

In this bill it is proposed to turn away from I have no pride of opinion in this questests of character and of quality and impose tion. I am not foolish enough to profess to tests which exclude and restrict; for the know the wishes and ideals of America betlaws here embodied are not tests of quality ter than the body of her chosen representaor of character or of personal fitness, but tives know them. I only want instruction tests of opportunity. Those who come seek- direct from those whose fortunes with ours, ing opportunity are not to be admitted unless and all men’s are involved.

405. THE FIRST LUSITANIA NOTE May 13, 1915 (Foreign Relations of the United States, 1915, Supplement, p. 393 ff.) On May 7, 1915, the British passenger ship was, in fact, armed and carried contraband of Lusitania was torpedoed and sunk by a German’ war. In his second Lusitania note of June 9, submarine with a loss of life of over eleven hun- Wilson brushed aside these allegations as irreledred passengers and crew, including one hundred vant, and again insisted upon a disavowal from

and twenty-four Americans. This act brought the German government and assurances that the United States and Germany to the verge of the German government would recognize “the war. The first Lusitania note was written by obligation to take sufficient precaution to ascerPresident Wilson, and without the qualifying tain whether a suspected merchantman is in fact clauses which Secretary Bryan was anxious toin- of belligerent nationality or is in fact carrying sert. Because of a misunderstanding of a conver- contraband of war under a neutral flag. The Govsation which the Austrian Ambassador Dumba _— ernment of the United States therefore deems it held with Bryan, Germany was at first inclined reasonable to expect that the Imperial German to take the note less seriously than was required Government will adopt the measures necessary by the circumstances. The German government to put these principles into practice in respect attempted to justify the act of the submarine — to the safeguarding of American lives and Americommander on the ground that the Lusitania can ships.” (For. Rel. of the U. S., 1915, Suppl.,

Tue First Lusitania NOTE 283 p. 436 ff.) Bryan felt unable to sign this note, and man influence in the field of international resigned from the Cabinet: the note went out obligation as always engaged upon the side over the signature of Secretary Lansing. The of justice and humanity; and having undernegotiations dragged out for some time, but after .to9d the instructions of the Imperial Gera further exchange of notes, and the sinking of man Government to its naval commanders the Arabic, August 19, 1915, Germany promised to be upon the same plane of humane action

to accept the President’s terms. See, C. Seymour, ‘bed by th | codes of other naAmerican Diplomacy during the World War, p. Prescribec by the navai codes Of 89 ff.; C. Seymour, Intimate Papers of Colonel tons, the Government of the United States House, Vol. I, ch. xiv, Vol. II, chs. iii; W. J. was loath to believe—it can not now bring

Bryan, Memoirs, Part II, chs. xiv-xv; S.F. Bemis, itself to believe—that these acts, so absoed., American Secretaries of States, Vol. X, p. lutely contrary to the rules, the practices, 23 ff.; J. B. Scott, Survey of International Re- and the spirit of modern warfare, could have lations Between the United States and Germany, the countenance or sanction of that great 1914-1917; C. H. Grattan, Why We Fought. Government. It feels it to be its duty, therefore, to address the Imperial German Gov-

The Secretary of State to Ambassador ernment concerning them with the utmost

Gerard. frankness and in the earnest hope that it is

DEPARTMENT OF STATE, not mistaken in expecting action on the Washington, May 13, 1915. part of the Imperial German Government Please call on the Minister of Foreign Af- which will correct the unfortunate impresfairs and after reading to him this com- sions which have been created and vindicate

munication leave with him a copy. once more the position of that Government

In view of recent acts of the German au- with regard to the sacred freedom of the

thorities in violation of American rights on _ seas.

the high seas which culminated in the tor- The Government of the United States has pedoing and sinking of the British steam- been apprised that the Imperial German ship Lusitania on May 7, 1915, by which Government considered themselves obliged over 100 American citizens lost their lives, by the extraordinary circumstances of the

it is clearly wise and desirable that the present war and the measures adopted by

Government of the United States and the their adversaries in seeking to cut Germany Imperial German Government should come off from all commerce, to adopt methods of to a clear and full understanding as to the retaliation which go much beyond the ordi-

grave situation which has resulted. nary methods of warfare at sea, in the

The sinking of the British passenger proclamation of a war zone from which they steamer Falaba by a German submarine on have warned neutral ships to keep away. March 28, through which Leon C. Thrasher, This Government has already taken occasion an American citizen, was drowned; the at- to inform the Imperial German Government

tack on April 28 on the American vessel that it can not admit the adoption of such Cushing by a German aeroplane; the torpedo- measures or such a warning of danger to ing on May 1 of the American vessel Gul- operate as in any degree an abbreviation of flight by a German submarine, as a result the rights of American shipmasters or of of which two or more American citizens American citizens bound on lawful errands met their death; and, finally, the torpedoing as passengers on merchant ships of bel-

and sinking of the steamship Lusitania, ligerent nationality; and that it must hold constitute a series of events which the the Imperial German Government to a strict Government of the United States has ob- accountability for any infringement of those served with growing concern, distress, and rights, intentional or incidental. It does not

amazement. understand the Imperial German GovernRecalling the humane and enlightened at- ment to question those rights. It assumes,

titude hitherto assumed by the Imperial on the contrary, that the Imperial GovernGerman Government in matters of interna- ment accept, as of course, the rule that the tional right, and particularly with regard to lives of noncombatants, whether they be of the freedom of the seas; having learned to neutral citizenship or citizens of one of the recognize the German views and the Ger- nations at war, can not lawfully or rightfully

284 DOCUMENTS OF AMERICAN History be put in jeopardy by the capture or destruc- Imperial German Embassy at Washington, tion of an unarmed merchantman, and recog- addressed to the people of the United States, nize also, as all other nations do, the obliga- and stating, in effect, that any citizen of the

tion to take the usual precaution of visit United States who exercised his right of and search to ascertain whether a suspected free travel upon the seas would do so at his merchantman is in fact of belligerent na- peril if his journey should take him within

tionality or is in fact carrying contraband the zone of waters within which the Im-

of war under a neutral flag. perial German Navy was using submarines

The Government of the United States, against the commerce of Great Britain and therefore, desires to call the attention of France, notwithstanding the respectful but the Imperial German Government with the very earnest protest of his Government, the utmost earnestness to the fact that the ob- Government of the United States. I do not jection to their present method of attack refer to this for the purpose of calling the against the trade of their enemies lies in the attention of the Imperial German Governpractical impossibility of employing sub- ment at this time to the surprising irregumarines in the destruction of commerce larity of a communication from the Imperial without disregarding those rules of fairness, German Embassy at Washington addressed

reason, justice, and humanity which all to the people of the United States through modern opinion regards as imperative. It is the newspapers, but only for the purpose of

practically impossible for the officers of a pointing out that no warning that an unsubmarine to visit a merchantman at sea lawful and inhumane act will be committed and examine her papers and cargo. It is can possibly be accepted as an excuse or practically impossible for them to make a_ palliation for that act or as an abatement of prize of her; and, if they can not put a_ the responsibility for its commission. prize crew on board of her, they can not Long acquainted as this Government has sink her without leaving her crew and all been with the character of the Imperial Geron board of her to the mercy of the sea in man Government and with the high princiher small boats. These facts it is understood ples of equity by which they have in the the Imperial German Government frankly past been actuated and guided, the Governadmit. We are informed that in the instances ment of the United States can not believe of which we have spoken time enough for that the commanders of the vessels which even that poor measure of safety was not committed these acts of lawlessness did so given, and in at least two of the cases cited except under a misapprehension of the ornot so much as a warning was received. ders issued by the Imperial German naval Manifestly submarines can not be used authorities. It takes it for granted that, at against merchantmen, as the last few weeks least within the practical possibilities of have shown, without an inevitable violation every such case, the commanders even of of many sacred principles of justice and submarines were expected to do nothing

humanity. that would involve the lives of noncombatants American citizens act within their indis- or the safety of neutral ships, even at the putable rights in taking their ships and in cost of failing of their object of capture or traveling wherever their legitimate business destruction. It confidently expects, therefore, calls them upon the high seas, and exercise that the Imperial German Government will

those rights in what should be the well- disavow the acts of which the Government justified confidence that their lives will not of the United States complains, that they be endangered by acts done in clear viola- will make reparation so far as reparation tion of universally acknowledged interna- is possible for injuries which are without tional obligations, and certainly in the con- measure, and that they will take immediate fidence that their own Government will steps to prevent the recurrence of anything sustain them in the exercise of their rights. so obviously subversive of the principles of There was recently published in the news- warfare for which the Imperial German Gov-

papers of the United States, I regret to in- ernment have in the past so wisely and so

form the Imperial German Government, a _ firmly contended. .

formal warning, purporting to come from the The Government and people of the United

ELttuu Root ON INVISIBLE GOVERNMENT 285 States look to the Imperial German Govern- of life results, can not justify or excuse a ment for just, prompt, and enlightened ac- practice, the natural and necessary effect of

tion in this vital matter with the greater which is to subject neutral nations and confidence because the United States and neutral persons to new and immeasurable Germany are bound together not only by _ risks.

special ties of friendship but also by the The Imperial German Government will explicit stipulations of the treaty of 1828 be- mot expect the Government of the United tween the United States and the Kingdom States to omit any word or any act necessary

of Prussia. to the performance of its sacred duty of Expressions of regret and offers of repara- maintaining the rights of the United States tion in the case of the destruction of neutral and its citizens and of safeguarding their ships sunk by mistake, while they may free exercise and enjoyment.

satisfy international obligations, if no loss BRYAN. 406. ELIHU ROOT ON INVISIBLE GOVERNMENT Speech to the New York Constitutional Convention

August 30, 1915 (Record of the Constitutional Convention of the State of New York, 1915, Vol. III, p. 3381 ff.) These remarks by Mr. Root apropos of the re- the main far superior to the government of organization of the executive power in the State, American States. I challenge contradiction constitute an excellent analysis of “invisible gov- to that statement. How has it been reached?

ernment” and boss rule. On Boss Platt, see The “a .

Autobiography of Thomas Collier Platt; H. S. now have ae cities peen lifted L. from ne Gosnell, Boss Platt and his New York Machine; Ow grade of incompetency and corruption D. S. Alexander, Four Famous New Yorkers. on which they stood when the “American Commonwealth” was written? It has been

Mr. Chairman, I have had great doubt done by applying the principles of this bill whether or not I should impose any remarks to city government, by giving power to the on this bill upon the Convention, especially men elected by the people to do the things after my friend Mr. Quigg has so ingeniously for which they were elected. But I say it is

made it difficult for me to speak; but I have quite plain that that is not all. It is not been so long deeply interested in the subject — all.

of the bill, and I shall have so few op- I am going to discuss a subject now that portunities hereafter, perhaps never an- goes back to the beginning of the political other, that I cannot refrain from testifying life of the oldest man in this Convention, to my faith in the principles of government and one to which we cannot close our eyes,

which underlie the measure, and putting if we keep the obligations of our oath. We upon this record for whatever it may be talk about the government of the Constituworth the conclusions which I have reached tion. We have spent many days in discuss-

upon the teachings of long experience in ing the powers of this and that and the many positions, through many years of par- other officer. What is the government of ticipation in the public affairs of this State this State? What has it been during the

and in observation of them. .. . forty years of my acquaintance with it?

The governments of our cities: Why, The government of the Constitution? Oh, twenty years ago, when James Bryce wrote no; not half the time, or half way. When his “American Commonwealth,” the govern- I ask what do the people find wrong in ment of American cities was a byword and our State government, my mind goes back to a shame for Americans all over the world. those periodic fits of public rage in which Heaven be thanked, the government of our the people rouse up and tear down the politicities has now gone far toward redeeming cal leader, first of one party and then of the itself and us from that disgrace, and the other party. It goes on to the public feelgovernment of American cities today is in ing of resentment against the control of

286 DOCUMENTS OF AMERICAN History party organizations, of both parties and of JI can never forget the deep sense of indigna-

all parties. tion that I felt in the abuse that was heaped Now, I treat this subject in my own upon Chester A. Arthur, whom I honored

mind not as a personal question to any man. and loved, when he was attacked because he

I am talking about the system. From the held the position of political leader. But it : days of Fenton, and Conkling, and Arthur is all wrong. It is all wrong that a governand Cornell, and Platt, from- the days of ment not authorized by the people should be

David B. Hill, down to the present time the continued Superior to the government that government of the State has presented two is authorized by the people. different lines of activity, one of the con- How is it accomplished? How is it done? stitutional and statutory officers of the State, Mr. Chairman, it is done by the use of and the other of the party leaders,—they patronage, and the patronage that my friends call them party bosses. They call the system on the other side of this question have been —I don’t coin the phrase, I adopt it because arguing and pleading for in this Convention it carries its Own meaning—the system they is the power to continue that invisible govcall “invisible government.” For I don’t re- ernment against that authorized by the peomember how many years, Mr. Conkling was ple. Everywhere, sir, that these two systems the supreme ruler in this State; the Gover- of government co-exist, there is a conflict nor did not count, the legislatures did not day by day, and year by year, between two count; comptrollers and secretaries of state principles of appointment to office, two radiand what not, did not count. It was what cally opposed principles. The elected officer Mr. Conkling said, and in a great outburst or the appointed officer, the lawful officer

of public rage he was pulled down. who is to be held responsible for the adThen Mr. Platt ruled the State; for nigh ministration of his office, desires to get men upon twenty years he ruled it. It was not into the different positions of his office who the Governor; it was not the Legislature; it will do their work in a way that is creditable was not any elected officers; it was Mr. to him and his administration. Whether it

Platt. And the capitol was not here; it was be a president appointing a judge, or a at 49 Broadway; Mr. Platt and his lieu- governor appointing a superintendent of tenants. It makes no difference what name public works, whatever it may be, the officer

you give, whether you call it Fenton or wants to make a success, and he wants to Conkling or Cornell or Arthur or Platt, or get the man selected upon the ground of by the names of men now living. The ruler his ability to do the work. of the State during the greater part of the How is it about the boss? What does the forty years of my acquaintance with the boss have to do? He has to urge the apState government has not been any man au- pointment of a man whose appointment will thorized by the Constitution or by the law; consolidate his power and preserve the orand, sir, there is throughout the length and ganization. The invisible government probreadth of this State a deep and sullen and ceeds to build up and maintain its power by long-continucd resentment at being governed a reversal of the fundamental principle of thus by men not of the people’s choosing. good government, which is that men should

The party leader is elected by no one, ac- be selected to perform the duties of the countable to no one, bound by no oath of office; and to substitute the idea that men office, removable by no one. Ah! My friends should be appointed to office for the preser-

here have talked about this bill’s creating vation and enhancement of power of the an autocracy. The word points with admir- political leader. The one, the true one, looks able facility the very opposite reason for the upon appointment to office with a view to bill. It is to destroy autocracy and restore the service that can be given to the public. power so far as may be to the men elected The other, the false one, looks upon appointby the people, accountable to the people, ment to office with a view to what can be

removable by the people. I don’t criticise gotten out of it. Gentlemen of the Con-

the men of the invisible government. How _ vention, I appeal to your knowledge of facts.

can I? I have known them all, and among’ Every one of you knows that what I say them have been some of my dearest friends. about the use of patronage under the sys-

Tue CONCENTRATION OF WEALTH 287 tem of invisible government is true. Louis private station, pass on without much atMarshall told us the other day about the tention to inveterate abuses. We can say appointment of wardens in the Adirondacks, to ourselves, I know it is wrong, I wish it hotel keepers and people living there, to could be set right; it cannot be set right, render no service whatever. They were ap- I will do nothing. But here, here, we face pointed not for the service that they were the duty, we cannot escape it, we are bound to render to the State; they were appointed to do our work, face to face, in clear recogfor the service they were to render to pro- nition of the truth, unpalatable, deplorable mote the power of a political organization. as it may be and the truth is that what the Mr. Chairman, we all know that the halls unerring instinct of the democracy of our of this capitol swarm with men during the State has seen in this government is that a session of the Legislature on pay day. A different standard of morality is applied to great number, seldom here, rendering no the conduct of affairs of States than that service, are put on the payrolls as a matter which is applied in private affairs. I have of patronage, not of service, but of party been told forty times since this Convention patronage. Both parties are alike; all parties met that you cannot change it. We can try, are alike. The system extends through all. can’t we? I deny that we cannot change it. I Ah, Mr. Chairman, that system finds its op- repel that cynical assumption which is born

portunity in the division of powers, in a of the lethargy that comes from poisoned six headed executive, in which, by the natural air during. all these years. I assert that this

workings of human nature there shall be perversion of democracy, this robbing deopposition and discord and the playing of mocracy of its virility, can be changed as one force against the other, and so, when we truly as the system under which Walpole refuse to make one Governor elected by the governed the commons of England, by people the real chief executive, we make bribery, as truly as the atmosphere which inevitable the setting up of a chief executive made the credit nvobilier scandal possible in not selected by the people, not acting for the the Congress of the United States has been people’s interest, but for the selfish interest blown away by the force of public opinion. of the few who control the party, whichever We cannot change it in a moment, but we

party it may be. Think for a moment of can do our share. We can take this one step what this patronage system means. How toward, not robbing the people of their part many of you are there who would be willing in government, but toward robbing an irto do to your private client, or customer, or responsible autocracy of its indefensible and

any private trust, or to a friend or neigh- unjust and undemocratic control of governbor, what you see being done to the State of | ment, and restoring it to the people to be New York every year of your lives in the exercised by the men of their choice and

taking of money out of her treasury with- their control... . out service? We can, when we are in a 407. THE CONCENTRATION OF WEALTH Final Report of the Commission on Industrial Relations 1915

(U. S. Commission on Industrial Relations: Final Report and Testimony, Vol. I, p. 80 ff. U. S. 64th Congress, Ist Session, Sen. Doc. No. 415) By Act of August 23, 1912, Congress provided The Concentration of Wealth and

for a Commission on Industrial Relations to sur- Influence vey the condition of industry in the United States

with special reference to labor. The Commission’s The evidence developed by the hearings Report is in eleven volumes; the first contains 4d investigations of the commission is the the final report and conclusions. For references, basis for the following statements:

see Doc. No. 388, and E. Clark, American 1. The control of manufacturing, mining,

Foundations and Their Fields, and transportation industries is to an in-

288 DOCUMENTS OF AMERICAN HISTORY creasing degree passing into the hands of 8. The lives of millions of wage earners great corporations through stock ownership, are therefore subject to the dictation of a and control of credit is centralized in a_ relatively small number of men. comparatively small number of enormously 9. These industrial dictators for the most powerful financial institutions. These finan- part are totally ignorant of every aspect of cial institutions are in turn dominated by a_ the industries which they control except the very small number of powerful financicrs. finances, and are totally unconcerned with 2. The final control of American industry regard to the working and living conditions rests, therefore, in the hands of a small of the employees in those industries. Even number of wealthy and powerful financiers. if they were deeply concerned, the position 3. The concentration of ownership and of the employees would be merely that of control is greatest in the basic industries the subjects of benevolent industrial desupon which the welfare of the country must pots.

finally rest. 10. Except, perhaps, for improvements 4. With few exceptions each of the great in safety and sanitation, the labor conditions

basic industries is dominated by a single of these corporation-control industries are large corporation, and where this is not subject to great criticism and are a menace true the control of the industry through to the welfare of the Nation. stock ownership in supposedly independent 11. In order to prevent the organization of corporations and through credit is almost, if employees for the improvement of working

not quite, as potent. conditions, elaborate systems of espionage 5. In such corporations, in spite of the are maintained by the large corporations

large number of stockholders, the. control which refuse to deal with labor unions, and through actual stock ownership rests with a the employees suspected of union affiliations very small number of persons. For example, are discharged. in the United States Steel Corporation, which 12. The domination by the men in whose

had in 1911 approximately one hundred hands the final control of a large part of thousand share holders, 1.5 percent of the American industry rests is not limited to stockholders held 57 percent of the stock, their employees, but is being rapidly exwhile the final control rested with a single tended to control the education and “social

private banking house. service” of the Nation.

Similarly, in the American Tobacco Com- 13. This control is being extended largely pany before the dissolution, 10 stockholders through the creation of enormous privately

owned sixty percent of the stock. managed funds for indefinite purposes, here6. Almost without exception the em-_ inafter designated “foundations,” by the enployees of the large corporations are un- dowment of colleges and universities, by the organized as a result of the active and creation of funds for the pensioning of teachaggressive “nonunion” policy of the corpora- ers, by contributions to private charities, as

tion management. well as through controlling or influencing the Furthermore, the labor policy of the large public press... . . .

corporations almost inevitably determines 22. The entrance of the foundations into the labor policy of the entire industry. the field of industrial relations, through the 7 A careful and conservative study shows creation of a special division by the Rocke-

that the corporations controlled by six feller Foundation, constitutes a menace to financial groups and affiliated interests em- the national welfare to which the attention ploy 2,651,684 wage earners and have a_ not only of Congress but of the entire coungrand total capitalization of $19,875,200,000. try should be directed. Backed by the 100These six financial groups control 28 per- 000,000 of the Rockefeller I°oundation, this cent of the total number of wage earners en- movement has the power to influence the

gaged in the industries covered by the entire country in the determination of its

report of our investigation. The Morgan- most vital policy. ... . .

First National Bank group alone controls 26. Apart from these foundations there is corporations employing 785,499 wage earn- developing a degree of control over the

ers... . teachings of professors in our colleges and

THE CONCENTRATION OF WEALTH 289 universities which constitutes a most serious $1,000,000 shall be required to secure a menace. In June of this year two professors, I*ederal charter.

known throughout their professions as men The Federal charter should contain the of great talent and high character, were following provisions: dropped from the positions they had occu- (a) Definite limitation of the funds to be pied and no valid reason for such action was held by any organization, at least not to exmade public. Both were witnesses before the ceed the largest amount held by any at the

commission, and made statements based time of the passage of the act. upon their own expert knowledge and experi- (b) Definite and exact specifications of ence which were given wide publicity. One the powers and functions which the organizawas a professor of law in a State university, tion is empowered to exercise, with provision who had acted as counsel for the strikers in for heavy penalties if its corporate powers

Colorado; the other a professor of eco- are exceeded. nomics, who had not only been active in (c) Specific provision against the accumufights in behalf of child-labor legislation and lation of funds by the compounding of unother progressive measures, but had recently expended income and against the expenditure

published a work comparing the incomes in any one year of more than 10 per cent of

paid for all classes of service. the principal.

In the face of such an enormous problem (d) Rigid inspection of the finances as one can only frankly confess inability to regards both investment and expenditure of suggest measures which will protect the Na- funds. tion from the grave dangers described. It 1s (e) Complete publicity through open re-

believed, however, that if Congress will enact ports to the proper Government officials.

the measures already recommended, provid- (f) Provision that no line of work which ing for a heavy tax on large inheritances with is not specifically and directly mentioned in

a rigid limitation on the total amount of the the articles of incorporation shall be enbequest, for the reclamation by the Federal tered upon without the unanimous consent Government of all parts of the public do- and approval of the board of trustees, nor main (including mineral rights) which have unless Congress is directly informed of such been secured by fraud, and for a tax on non- intention through communication to the

productive land and natural resources, a Clerk of the House and the Clerk of the

great step in the right direction will have Senate, which shall be duly published in the

been taken. Congressional Record, nor until six months As regards the “foundations” created for after such intention has been declared. unlimited general purposes and endowed with 2. Provision by Congress for the thorough enormous resources, their ultimate possibili- investigation, by a special committee or com-

ties are so grave a menace, not only as re- mission, of all endowed institutions, both gards their own activities and influence but secular and religious, whose property holdalso the benumbing effect which they have ings or income exceeds a moderate amount. on private citizens and public bodies, that The committee or commission should be if they could be clearly differentiated from — given full power to compel the production of

other forms of voluntary altruistic effort it books and papers and the attendance and would be desirable to recommend their aboli- testimony of witnesses. It should be aution. It is not possible, however, at this thorized and directed to investigate not only time to devise any clear-cut definition upon the finances of such institutions but all their

which they can be differentiated. activities and affiliations.

As the basis for effective action, it is sug- 3. As the only effective means of countergested that the commission recommend: acting the influence of the foundations, as 1. The enactment by Congress of a statute long as they are permitted to exist, consists

providing that all incorporated nonprofit- in the activities of governmental agencies making bodies whose present charters em- along similar lines, the appropriations of the power them to perform more than a single Federal Government for education and social specific function and whose funds exceed service should be correspondingly increased.

290 DOCUMENTS OF AMERICAN HISTORY 408. THE GORE-McLEMORE RESOLUTION AND WILSON’S REPLY February, March, 1916 (Current History, April, 1916, p. 15 ff.) As Secretary of State Mr. Bryan had urged that You are right in assuming that I shall do many of the most dangerous problems of our everything in my power to keep the United relations with belligerents might be avoided if States out of war. I think the country will feel Americans were forbidden to travel on the 19 uneasiness about my course in that respect refused to accept this point of view as either roug many an X1Ous mont sI have striven

armed ships of belligerent powers. Mr. Wilson Th h h . reasonable or necessary. The German threat of for that object, amidst difficulties more mani-

a renewal of unrestricted submarine warfare fold than can have been apparent upon the March 1, 1916, aroused widespread hostility in surface, and so far I have succeeded. I do Congress to the Wilson program. The Demo- not doubt that I shall continue to succeed. cratic Congressional leaders served notice on the The course which the Central European powPresident that unless he placed an embargo upon = erg have announced their intention of followAmerican travel on armed merchantmen, Con- ing in the future with regard to undersea war-

gress would recommend such action. The Gore- fare seems for the moment to threaten McLemore Resolution embodied the Bryan at-. titude toward this perplexing question. President insuperable obstacles, but its apparent meanWilson’s letter to Senator Stone indicated his re- 498 15 SO manifestly inconsistent with explicit

fusal to accept any limitation on American assurances recently given us by those powers rights or any modification of international law. with regard to their treatment of merchant As a result of Presidential pressure the resolu- vessels on the high seas, that I must believe tion was defeated in the Senate, 68-14 and in that explanations will presently ensue which the House 276-142. A considerable part @ the will put a different aspect upon it. We have administration sapport ame fom Republicans had no reason to question their good faith o the World War p. 116 ff.; “Armed Liner Issue,” their fidelity to their promises in the past, |

Current History, April, 1916. and I for one feel confident that we shall have none in the future.

1. THe Gore-McLemore RESOLUTION But in any event our duty is clear. No naResolved ... That it is the sense of the tion, no group of nations, has the right while Congress, vested as it is with the sole power war is in progress to alter or disregard the to declare war, that all persons owing alle- principles which all nations have agreed upon giance to the United States should in behalf in mitigation of the horrors and sufferings of of their own safety and the vital interest of | war; and if the clear rights of American cit-

the United States, forbear to exercise the izens should ever unhappily be abridged or right to travel as passengers on any armed denied by any such action, we should, it seems vessel of any belligerent power, whether such _ to me, have in honor no choice as to what our vessel be armed for offensive or defensive OWN Course should be. purposes, and it is the further sense of Con- For my own part, I cannot consent to any gress that no passport should be issued or re- abridgment of the rights of American citizens newed by the Secretary of State, or anyone 1 any respect. The honor and self-respect of acting under him, to be used by any person the nation is involved. We covet peace, and owing allegiance to the United States for the shall preserve it at any cost but the loss of purpose of travel upon any such armed vessel honor. To forbid our people to exercise their

of a belligerent power. rights for fear we might be called upon to

vindicate them would be a deep humiliation 2. PRESIDENT WILSON’S LETTER TO SENATOR indeed. It would be an implicit, all but an

STONE explicit, acquiescence in the violation of the The White House, rights of mankind everywhere, and of what-

Washington, February 24, 1916. ever nation or allegiance. It would be a delibMy Dear Senator: I very warmly appreciate erate abdication of our hitherto proud posiyour kind and frank letter of to-day, and feel tion as spokesmen, even amidst the turmoils

that it calls for an equally frank reply. of war, for the law and the right. It would

THe Sussex AFFAIR 291 make everything this Government has at- yield them without conceding her own imtempted, and everything that it has achieved potency as a nation, and making virtual during this terrible struggle of nations mean- surrender of her independent position among

ingless and futile. the nations of the world. .

It is important to reflect that if in this in- I am speaking, my dear Senator, in deep stance we allowed expediency to take the solemnity, without heat, with a clear con-

place of principle, the door would inevitably sciousness of the high responsibilities of my be opened to still further concessions. Once office, and as your sincere and devoted friend. accept a single abatement of right, and many If we should unhappily differ, we shall differ other humiliations would certainly follow, as friends; but where issues so momentous as and the whole fine fabric of international law these are involved we must, just because we might crumble under our hands piece by piece. are friends, speak our minds without reservaWhat we are contending for in this matter is _ tion.

of the very essence of the things that have Faithfully yours, made America a sovereign nation. She cannot Woodrow Wilson 409. THE SUSSEX AFFAIR Wilson’s Address to Congress April 19, 1916

(U.S. 64th Congress, Ist Session, House Doc. 1034) After the sinking of the Arabic, August 18, 1915, stances of this method of warfare was that Germany gave a pledge that in the future liners of the destruction of the French cross-chanwould not be sunk by submarines without warn- ne] steamer Sussex. It must stand forth, as ing and without safety for the lives of noncom- the sinking of the Lusitania did, as so singubatants. This period of quiet in submarine war larly tragical and unjustifiable as to consticross-channel steamer Sussex, March 24, 1916. tute a truly terrible example of the inhu-

fare came to an end with the sinking of the French , .

Wilson warned Germany that unless she ceased Manity of submarine warfare as_ the her unrestricted submarine warfare, the United commanders of German vessels have for the States would be forced to break off diplomatic past twelvemonth been conducting it. If this relations. On May 4, Germany promised that instance stood alone, some explanation, some merchant vessels would not be sunk without disavowal by the German Government, some warning, unless they should attempt to escape or evidence of criminal mistake or wilful disto offer resistance. The crisis was temporarily obedience on the part of the commander of her policy of unrestricted submarine warfare. See, the vessel that hred the torpedo might be J. S. Bassett, Our War with Germany, chs. i-v; sought or entertained; but unhappily it does J.B. McMaster, The United States and the World not stand alone... .

passed, but in January, 1917, Germany renewed

War, Vol. I; J. B. Scott, Survey of Interna- The Government of the United States has

tional Relations Between the United States and been very patient. At every stage of this dis-

Germany, 1914-1917, ch. ix. tressing experience of tragedy after tragedy in which its own citizens were involved, it A situation has arisen in the foreign rela- has sought to be restrained from any extreme tions of the country of which it is my plain course of action or of protest by a thought-

duty to inform you very frankly... . ful consideration of the extraordinary cirIn February of the present year the _Im- cumstances of this unprecedented war, and

perial German Government informed this actuated in all that it said or did by the Government .. . that the Imperial German sentiments of genuine friendship which the

Government felt justified in the circum- people of the United States have always stances in treating all armed merchantmen entertained and continue to entertain towards of belligerent ownership as auxiliary vessels the German nation. It has of course accepted of war, which it would have the right to the successive explanations and assurances of

destroy without warning... . the Imperial German Government as given One of the latest and most shocking in- in entire sincerity and good faith, and has

292 DOCUMENTS OF AMERICAN History hoped, even against hope, that it would prove _ strated impossibility of conducting that to be possible for the German Government so _ warfare in accordance with what the Govern-

to order and control the acts of its naval ment of the United States must consider the commanders as to square its policy with the sacred and indisputable rules of international principles of humanity as embodied in the law and the universally recognized dictates law of nations. It has been willing to wait of humanity, the Government of the United

until the significance of the facts became States is at last forced to the conclusion absolutely unmistakable and susceptible of that there is but one course it can pursue;

but one interpretation. and that unless the Imperial German Gov-

That point has now unhappily been ernment should now immediately declare and reached. The facts are susceptible of but effect an abandonment of its present methods one interpretation. The Imperial German of warfare against passenger and freight carGovernment has been unable to put any rying vessels this Government can have no limits or restraints upon its warfare against choice but to sever diplomatic relations with

either freight or passenger ships. It has the Government of the German Empire al-

therefore become painfully evident that the together. position which this Government took at the This decision I have arrived at with the

very outset is inevitable, namely, that the keenest regret; the possibility of the acuse of submarines for the destruction of an tion contemplated I am sure all thoughtful enemy’s commerce is, of necessity, because Americans will look forward to with unafof the very character of the vessels employed fected reluctance. But we cannot forget that and the very methods of attack which their we are in some sort and by the force of ciremployment of course involves, incompatible cumstances the responsible spokesmen of the

with the principles of humanity, the long rights of humanity, and that we cannot reestablished and incontrovertible rights of main silent while those rights seem in process neutrals, and the sacred immunities of non- of being swept utterly away in the maelstrom

combatants. of this terrible war. We owe it to a due regard I have deemed it my duty, therefore, to for our own rights as a nation, to our sense of

say to the Imperial German Government, duty as a representative of the rights of that if it is still its purpose to prosecute neutrals the world over, and to a just conceprelentless and indiscriminate warfare against tion of the rights of mankind to take this

vessels of commerce by the use of sub- stand now with the utmost solemnity and marines, notwithstanding the now demon- firmness... . 410. AMERICAN CONTROL OF HAITI Treaty Between the United States and Haiti May 3, 1916

(U. S. Statutes at Large, Vol. XXXIX, p. 1654) | Long continued anarchy in Haiti led to American European powers. A Convention satisfactory to

intervention in January and February, 1914; in’ the United States was signed September 16, December of that year American naval officers, ratified by the Haitian government November acting under instructions from the Navy Depart- 11, and by the United States Senate in February, ment, removed half a million dollars of reserve 1916. American forces continued to occupy Haiti funds from the Banque Nationale and secured — until 1930. The occupations of Haiti and of Santo them in the National City Bank of New York Domingo are illuminating examples of the effects

until monetary reforms had been carried into of the Monroe Doctrine and of economic imeffect. Continued revolutions led to a demand perialism. An excellent treatise on American ocfor American control of the finances, customs cupation is H. P. Davis, Black Democracy, Part and police force of the island, but not until the II; R. L. Buell, “American Occupation of Haiti,” terrible massacre of July 27, 1915, did the United Foreign Policy Association, Information Service, States invest the capital with marines. Such in- Vol. V, C. Kelsey, “American Intervention in vestment was held imperative in order to estab- Haiti”, Am. Academy of Pol. and Social Science, lish order and to forestall the intervention of Annals, 1922, E. G. Balch, et al., Occupied Haiti,

AMERICAN CONTROL OF HAITI 293 F. Bausman, et al., The Seizure of Haiti by the debts of the Republic, the amounts, characUnited States, are for the most part critical. See ter, maturity and condition thereof, and the also Inquiry into the Occupation and Adminis- interest accruing and the sinking fund requitration of Haiti and Santo Domingo, United site to their final discharge. States, 67th Congress, 2nd Sess. Sen. Report Art. V. All sums collected and received by

1 aralspaneh Haiti Under the General Receiver shall be applied, first, °ee )ametocalthe payment of the salaries and allowances Art. I. The Government of the United of the General Receiver, his assistants and

States will, by its good offices, aid the Haitian employees and expenses of the Receivership,

Government in the proper and efficient de- including the salary and expenses of the Fivelopment of its agricultural, mineral and nancial Adviser, which salaries will be decommercial resources and in the establish- termined by previous agreement, second, to ment of the finances of Haiti on a firm and the interest and sinking fund of the public

solid basis. debt of the Republic of Haiti; and, third, to

Art. II. The President of Haiti shall ap- the maintenance of the constabulary referred point, upon nomination by the President of to in Article X, and then the remainder to the United States, a General Receiver and the Haitian Government for purposes of cursuch aids and employees as may be necessary, rent expenses... . who shall collect, receive and apply all cus- Art. VI. The expenses of the Receivership, toms duties on imports and exports accruing including salaries and allowances of the Genat the several custom houses and ports of en- eral Receiver, his assistants and employees,

try of the Republic of Haiti. and the salary and expenses of the Financial

The President of Haiti shall appoint, upon Adviser, shall not exceed five per centum of nomination by the President of the United the collections and receipts from customs States, a Financial Adviser, who shall be an duties, unless by agreement by the two Govofficer attached to the Ministry of Finance, ernments. to give effect to whose proposals and labours Art. VII. The General Receiver shall make the Minister will lend efficient aid. The Fi- monthly reports of all collections, receipts nancial Adviser shall devise an adequate sys- and disbursements to the appropriate officer tem of public accounting, aid in increasing the of the Republic of Haiti and to the Departrevenues and adjusting them to the expenses, ment of State of the United States, which inquire into the validity of the debts of the reports shall be open to inspection and verifiRepublic, enlighten both Governments with cation at all times by the appropriate authorireference to all eventual debts, recommend _ ties of each of the said Governments. improved methods of collecting and apply- The Republic of Haiti shall not increase its ing the revenues, and make such other recom- public debt except by previous agreement mendations to the Minister of Finance as may with the President of the United States, and

be deemed necessary for the welfare and shall not contract any debt or assume any

prosperity of Haiti. financial obligation unless the ordinary reve-

Art. III. The Government of the Repub- nues of the Republic available for that pur-

lic of Haiti will provide by law or appropri- pose, after defraying the expenses of the Gov-

ate decrees for the payment of all customs ernment, shall be adequate to pay the duties to the General Receiver, and will ex- interest and provide a sinking fund for the tend to the Receivership, and to the Finan- final discharge of such debt. cial Adviser, all needful aid and full protec- Art. IX. The Republic of Haiti will not tion in the execution of the powers conferred without a previous agreement with the Presiand duties imposed herein; and the United dent of the United States, modify the customs States on its part will extend like aid and duties in a manner to reduce the revenues

protection. therefrom; and in order that the revenues _ Art. IV. Upon the appointment of the of the Republic may be adequate to meet ‘ Financial Adviser, the Government of the the public debt and the expenses of the Republic of Haiti, in co-operation with the Government, to preserve tranquillity and to Financial Adviser, shall collate, classify, ar- promote material prosperity, the Republic

range and make full statement of all the of Haiti will co-operate with the Financial

294 DOCUMENTS OF AMERICAN HISTORY Adviser in his recommendations for improve- Art. XII. The Haitian Government agrees ment in the methods of collecting and dis- to execute with the United States a protocol bursing the revenues and for new sources of for the settlement, by arbitration or other-

needed income. wise, of all pending pecuniary claims of forArt. X. The Haitian Government obli- eign corporations, companies, citizens or

gates itself, for the preservation of domestic subjects against Haiti.

peace, the security of individual rights and Art. XIII. The Republic of Haiti, being full observance of the provisions of this desirous to further the development of its treaty, to create without delay an efficient natural resources, agrees to undertake and constabulary, urban and rural, composed of execute such measures as in the opinion of native Haitians. This constabulary shall be the high contracting parties may be necesorganized and officered by Americans, ap- sary for the sanitation and public improvepointed by the President of Haiti, upon ment of the Republic, under the supervision nomination by the President of the United and direction of an engineer or engineers, to States. . .. These officers will be replaced be appointed by the President of Haiti upon by Haitians as they, by examination, con- nomination by the President of the United

ducted under direction of a board to be States, and authorized for that purpose by selected by the senior American officer of the Government of Haiti.

this constabulary and in the presence of a Art. XIV. The high contracting parties representative of the Haitian Government, shall have authority to take such steps as are found to be qualified to assume such may be necessary to insure the complete atduties. The constabulary herein provided for, tainment of any of the objects comprehended

shall, under the direction of the Haitian in this treaty; and, should the necessity ocGovernment, have supervision and control of | cur, the United States will lend an efficient

arms and ammunition, military supplies, and aid for the preservation of Haitian Indetraffic therein, throughout the country. The pendence and the maintenance of a Governhigh contracting parties agree that the stipu- ment adequate for the protection of life, lations in this Article are necessary to pre- property and individual liberty... .

vent factional strife and disturbances. Art. XVI. The present treaty shall remain

Art. XI. The Government of Haiti agrees in full force and virtue for the term of ten not to surrender any of the territory of the years, to be counted from the day of exRepublic of Haiti by sale, lease or other- change of ratifications, and further for anwise, or jurisdiction over such territory, to other term of ten years if, for specific any foreign government or power, not to reasons presented by either of the high conenter into any treaty or contract with any tracting parties, the purpose of this treaty foreign power or powers that will impair or has not been fully accomplished. .. . tend to impair the independence of Haiti.

411. AGRICULTURAL LEGISLATION IN THE FIRST WILSON ADMINISTRATION Letter of President Wilson to A. F. Lever August 11, 1916 (Congressional Record, 64th Congress, Ist Session, App., p. 1762-3) This letter from Wilson to the chairman of the My Dear Mr. Lever: It has given me much Committee on Agriculture furnishes a succinct satisfaction to approve to-day the bill maksummary of the agricultural legislation of the ing appropriations for the Department of first Wilson administration. See, E.R. A. Selig- Agriculture for the fiscal year ending June man, Economics of Farm Relief; W. S. Holt, 30, 1917, and for other purposes, because

Federal Farm Loan Bureau; J. B. Morman, a Farm Credits in the United States and Canada; the bill not only makes very generous proviE. S. Spahr, History and Theory of Agricultural Sion for the improvement of farm produc-

Credit in the United States. tion in the Nation and for investigations

AGRICULTURAL LEGISLATION 295 and demonstrations in the field of market- cerns distribution marketing, rural finance, ing of farm crops and of the organization and rural organization. of rural life, but also contains three well- 5. Provision was made promptly for the conceived measures designed to improve creation of an Office of Markets and Rural market practices and the storage and financ- Organization, and the appropriations for this ing of staple crops. As the passage of this office, including those for enforcing new laws bill marks the practical completion of an designed to promote better marketing, have important part of the program for the better- been increased to $1,200,000. The more dif-

ment of rural life which was mapped out ficult problems of marketing are being inat the beginning of the administration, I feel vestigated and plans are in operation for that I cannot let the occasion pass without furnishing assistance to producers of perishconveying to you and your associates in both ables through a market news service. A simiHouses my appreciation of the great service lar service for the live-stock interest will be rendered to the nation in strengthening its inaugurated during the year.

great agricultural foundations. 6. The problem of securing the uniform

The record, legislative as well as adminis- grading of staple crops, of regulating dealtrative, is a remarkable one. It speaks for ings and traffic in them, of developing a bet-

itself and needs only to be set forth. ter system of warehouses, and of providing 1. Appreciation of the importance of agri- more available collateral for farm loans has culture has been shown through greatly and been successfully dealt with. intelligently increased appropriations for its 7. Under the cotton-futures act standards for

support. cotton have been established, the operations 2. Particular pains have been taken to foster of the future exchanges have been put under production by every promising means, and supervision, and the sale of cotton has been careful thought has been given especially to placed on a firmer basis. the matter of increasing the meat supply of 8. The United States grain-standards act will

the Nation. secure uniformity in the grading of grain,

3. Greatly increased provision has been’ enable the farmer to obtain fairer prices for made, through the enactment of the co- his product, and afford him an incentive to operative agricultural extension act, for con- raise better grades of grain. veying agricultural information to farmers, 9. The United States warehouse act will enand for inducing them to apply it. This piece able the Department of Agriculture to license of legislation is one of the most significant bonded warehouses in the various States. It

and far-reaching measures for the education will lead to the development of better of adults ever adopted by any Government. storage facilities for staple crops and will It provides for co-operation between the make possible the issuance of reliable wareStates and the Federal Government. This is house receipts which will be widely and a highly important and significant principle. easily negotiable. When the act is in full operation there will 10. Of no less importance for agriculture and be expended annually under its terms, from for national development is the Federal Aid Federal and State sources alone, a total of road act. This measure will conduce to the over $8,600,000 in the direct education of establishment of more effective highway mathe farmer; this amount is being and will chinery in each State, strongly influence the be increasingly supplemented by contribu- development of good road building along tions from local sources. It will permit the right lines, stimulate larger production and placing in each of the 2,850 rural counties of better marketing, promote a fuller and more

the Nation two farm demonstrators and attractive rural life, add greatly to the conspecialists, who will assist the demonstrators venience and economic welfare of all the in the more difficult problems confronting people, and strengthen the national founda-

them. tions. The act embodies sound principles of

4. Systematic provision for the first time has road legislation and will safeguard the exbeen made for the solution of problems in penditure of funds arising under the act not that important half of agriculture which con- only, but will also result in the more efficient

296 DOCUMENTS OF AMERICAN HIstToRY use of the large additional sums made avail- should operate on terms suited to the farm-

able by States and localities. er’s needs, and should be under sympathetic 11. The Federal Reserve Act benefits the management. The need was for machinery farmer, as it does all the other people of the which would introduce business methods into

Nation, by guaranteeing better banking, farm finance, bring order out of chaos, resafeguarding the credit structure of the duce the cost of handling farm loans, place country, and preventing panics. It takes par- upon the market mortgages which would ticular note of the special needs of the be a safe investment for private funds, atfarmer by making larger provision for loans tract into agricultural operations a fair through national banks on farm mortgages share of the capital of the Nation, and lead and by giving farm paper a maturity period to a reduction of interest. These needs and

of six months. these ideals have been met by the enactment 12. It was essential, however, that banking of the Federal farm-loan act... .

machinery be devised which would reach in- Faithfully yours,

timately into the rural districts, that it Woodrow Wilson 412. ORGANIC ACT OF THE PHILIPPINE ISLANDS August 29, 1916

(U. S. Statutes at Large, Vol. XXXIX, p. 545 ff.) The act of July 1, 1902 had provided a terri- lands, and to provide a more autonomous torial government for the Philippines. Inhabitants government for those islands.

of the islands were made citizens of the Philip- Whereas it was never the intention of — pines, not of the United States; partial self- the people of the United States in the ingovernment was extended to the islands, and cipiency of the War with Spain to make it these rights were enlarged in 1907. Many Filipinos me continued to hope for independence, and their a war of conquest or for territorial agdemands met with some support among various grandizement; and idealistic and economic groups in the United Whereas it is, as it has always been, the purStates. The Democratic Party in 1912 pledged pose of the people of the United States to

its support to ultimate independence; in accord- withdraw their sovereignty over the ance with this traditional Democratic position, Philippine Islands and to recognize their President Wilson appointed native Filipinos to independence as soon as a stable governa majority of the seats in the Philippine upper ment can be established therein; and house. The Jones Act of August 29, 1916, not wWereas for the speedy accomplishment of only greatly enlarged Philippine self-government, — . ; but promised independence as soon as a stable such purpose it is desirable to place in the government was established. This promise was hands of the people of the P hilippines as finally fulfilled by the Philippine Independence large a control of their domestic affairs as Act of 1934, Doc. No. 484. The literature on the can be given them without, in the meanPhilippines is extensive and_ controversial; time, impairing the exercise of the rights see D. C. Worcester, Philippines: Past and Pres- of sovereignty by the people of the United ent; W. C. Forbes, The Philippine Islands, 2 States, in order that, by the use and exervor J. 5S. Rey Os oainalive ae hispoincs ica’s Economic Polic owar i :; cise of popular franchise and governmental

CB, Elliott, The Philippines to the End of the Pea they my be the etter prepared

Commission Government; F. B. Harrison, The to any assume the responsibilities anid enCornerstone of Philippine Independence. On mili- Joy all the privileges of complete indetary conquest and occupation, see M. Storey and pendence: Therefore M. P. Lichauco, Conquest of the Philippines by Be it enacted, .. .

the United States, 1898-1925. SEC. 2. That all inhabitants of the Philip-

: pine Islands who were Spanish subjects on

An Act to declare the purpose of the people [April 11, 1899] and then resided in said of the United States as to the future political islands, and their children born subsequent status of the people of the Philippine Is- thereto, shall be deemed and held to be citi-

OrGANIC ACT OF THE PHILIPPINE ISLANDS 297 zens of the Philippine Islands, except such time it shall become a law the same as if it as shall have elected to preserve their allegi- had been specifically approved.

ance to the Crown of Spain in accordance SEC. 11. ... That the entire indebtedwith the provisions of the treaty of peace ness of the Philippine government . . . shall between the United States and Spain, ... mot exceed at any one time the sum of $15,and except such others as have since become 000,000... .

citizens of some other country: .. . SEC. 12. That general legislative powers SEC. 3. [Bill of rights for the Philip- in the Philippines, except as herein otherwise

pines.| ... provided, shall be vested in a legislature SEC. 5. That the statutory laws of the which shall consist of two houses, one the United States hereafter enacted shall not senate and the other the house of repre-

apply to the Philippines Islands, except when sentatives, and the two houses shall be desig-

they specifically so provide, or it is so pro- nated “The Philippine Legislature”: . . .

vided in this Act. SEC. 13. [The Senate]

SEC. 6. That the laws now in force in the SEC. 14. [The House of Representatives | Philippines shall continue in force and effect, SEC. 15. ... Until otherwise provided except as altered, amended, or modified by the Philippine Legislature herein proherein, until altered, amended or repealed by vided for the qualifications of voters for the legislative authority herein provided or senators and representatives in the Philipby Act of Congress of the United States. pines and all officers elected by the people SEC. 7. That the legislative authority shall be as follows: herein provided shall have power, when not Every male person who is not a citizen inconsistent with this Act, by due enactment or subject of a foreign power twenty-one to amend, alter, modify, or repeal any law, years of age or over ... who shall have civil or criminal, continued in force by this been a resident of the Philippines for one Act as it may from time to time see fit. year and of the municipality in which he This power shall specifically extend with — shall offer to vote for six months next prethe limitation herein provided as to the tariff ceding the day of voting, and who is comto all laws relating to revenue and taxation prised within one of the following classes:

in effect in the Philippines. (a) Those who under existing law are legal

SEC. 8. That general legislative power, ex- voters and have exercised the right of sufcept as otherwise herein provided, is hereby frage.

granted to the Philippine Legislature, au- (b) Those who own real property to the

thorized by this Act... . value of 500 pesos, or who annually pay 30 SEC. 10. That while this Act provides pesos or more of the established taxes. that the Philippine government shall have (c) Those who are able to read and write the authority to enact a tariff law the trade either Spanish, English or a native tungue. relations between the islands and the United ... The first election under the proviStates shall continue to be governed exclu- sions of this Act shall be held on the first

sively by laws of the Congress of the United Tuesday of October, nineteen hundred and

States: Provided, That tariff acts or acts sixteen, ... Provided, That the Governor amendatory to the tariff of the Philippine General of the Philippine Islands shall apIslands shall not become law until they shall point, without the consent of the senate and receive the approval of the President of the without restriction as to residence, senators United States, nor shall any act of the Philip- and representatives who will, in his opinion, pine Legislature affecting immigration or the best represent the senate district and those currency or coinage laws of the Philippines representative districts which may be _inbecome a law until it has been approved by cluded in the territory not now represented the President of the United States: Provided in the Philippine Assembly: .. .

further, That the President shall approve or SEC. 19... . Every bill and joint resoludisapprove any act mentioned in the forego- tion which shall have passed both houses ing proviso within six months from and after shall, before it becomes a law, be presented

its enactment and submission for his ap- to the Governor General. If he approve the proval, and if not disapproved within such same, he shall sign it; but if not, he shall

298 DOCUMENTS OF AMERICAN HIsToRy return it with his objections to that house in General shall reside in the Philippine Islands which it shall have originated, which shall during his official incumbency, and maintain enter the objections at large on its journal his office at the seat of government. He shall, and proceed to reconsider it. If, after such unless otherwise herein provided, appoint, reconsideration, two-thirds of the members by and with the consent of the Philippine

elected to that house shall agree to pass the Senate, such officers as may now be apsame, it shall be sent, together with the pointed by the Governor General, or such objections, to the other house, by which it as he is authorized by this Act to appoint, shall likewise be reconsidered, and if ap- or whom he may hereafter be authorized

proved by two-thirds of all the members by law to appoint; ...He... shall be

elected to that house it shall be sent to the commander in chief of all locally created Governor General, who, in case he shall then armed forces and militia. ... He shall be not approve, shall transmit the same to the responsible for the faithful execution of the

President of the United States. ...If the laws of the Philippine Islands and of the President of the United States approve the United States operative within the Philippine same, he shall sign it and it shall become a_ Islands, and whenever it becomes necessary

law. If he shall not approve same, he shall he may call upon the commanders of the return it to the Governor General, so stating, military and naval forces of the United

and it shall not become a law: .. . States in the islands, or summon the posse

All laws enacted by the Philippine Legisla- comitatus, or call out the militia or other ture shall be reported to the Congress of the locally created armed forces, to prevent or United States, which hereby reserves the suppress lawless violence, invasion, insurrecpower and authority to annul the same. If tion, or rebellion; and he may, in case of at the termination of any fiscal year the ap-_ rebellion or invasion, or imminent danger propriations necessary for the support of thereof, when the public safety requires it, government for the ensuing fiscal year shall suspend the privileges of the writ of habeas

not have been made, the several sums ap- corpus, or place the islands, or any part

propriated in the last appropriation bills for thereof, under martial law. . . . the objects and purposes therein specified, so SEC. 26. ... The chief justice and as-

far as the same may be done, shall be sociate justices of the Supreme Court shall deemed to be reappropriated for the several hereafter be appointed by the President, objects and purposes specified in said last by and with the advice and consent of the

appropriation bill; ... Senate of the United States. The judges of

SEC, 20. That at the first meeting of the the court of first instance shall be appointed Philippine Legislature created by this Act by the Governor General by and with the and triennially thereafter there shall be chosen advice and consent of the Philippine by the legislature two Resident Commission- Senate... . ers to the United States, who shall hold SEC. 27. That the Supreme Court of the their office for a term of three years be- United States shall have jurisdiction to reginning with the fourth day of March fol- view, revise, reverse, modify, or affirm the lowing their election, and which shall be final judgements and decrees of the Supreme entitled to an official recognition as such by Court of the Philippine Islands in all acall departments upon presentation to the tions, cases, causes, and proceedings now President of a certificate of election by the pending therein or hereafter determined

Governor General of said islands. .. . thereby in which the Constitution or any SEC. 21. That the supreme executive statute, treaty, title, right, or privilege of power shall be vested in an executive officer, the United States is involved, or in causes whose official title shall be “The Governor in which the value in controversy exceeds

General of the Philippine Islands.” He shall $25,000... . be appointed by the President, by and with SEC. 28... . It shall be unlawful for any the advice and consent of the Senate of the corporation organized under this Act, or for United States, and hold his office at the any person, company, or corporation receivpleasure of the President and until his suc- ing any grant, franchise, or concession from cessor is chosen and qualified. The Governor the government of said islands, to use, em-

HAMMER V. DAGENHART ET AL. 299 ploy, or contract for the labor of persons if the legislature shall fail to make an ap-

held in involuntary serviture; .. . propriation for such salaries, the salaries so SEC. 29. That, except as in this Act fixed shall be paid without the necessity of

otherwise provided, the salaries of all the further appropriations therefor. The salaries officials of the Philippines not appointed by of all officers and all expenses of the offices the President, including deputies, assistants, of the various officials of the Philippines apand other employees, shall be such and be pointed as herein provided by the President

so paid out of the revenues of the Philip- shall also be paid out of the revenues of pines as shall from time to time be deter- the Philippines... . mined by the Philippine Legislature; and

413. HAMMER v. DAGENHART ET AL. 247 U. S. 251 1918

Appeal from the U.S. district court for the West- therefore that the subject is not open for ern District of North Carolina. This case in- discussion. The cases demonstrate the convolved the interpretation of the Keating-Owen trary. They rest upon the character of the Act of 1916. Stat. at Large, Vol. XX XIX, p. 675. particular subjects dealt with and the fact that the scope of governmental authority,

Day, J... . The attack upon the act rests state or national, possessed over them, is

upon three propositions: such that the authority to prohibit is, as to

First. It is not a regulation of interstate them, but the exertion of the power to regu-

and foreign commerce. late. Second. It contravenes the Tenth Amend- The first of these cases is Champion v.

ment to the Constitution. Ames, 188 U. S. 321, the so-called Lottery Third. It conflicts with the Fifth Amend- Case, in which it was held that Congress

ment to the Constitution. might pass a law having the effect to keep The controlling question for decision is: the channels of commerce free from use Is it within the authority of Congress in in the transportation of tickets used in the regulating commerce among the States to promotion of lottery schemes. In Hzpolite prohibit the transportation in interstate com- Egg Co. v. United States, 220 U. S. 45, this

merce of manufactured goods, the product court sustained the power of Congress to of a factory in which, within thirty days pass the Pure Food and Drugs Act which prior to their removal therefrom, children prohibited the introduction into the States under the age of fourteen have been em- by means of interstate commerce of imployed or permitted to work, or children pure foods and drugs. In Hoke v. United between the ages of fourteen and sixteen States, 227 U. S. 308, this court sustained years have been employed or permitted to the constitutionality of the so-called “White work more than eight hours in any day, Slave Traffic Act’? whereby the transportaor more than six days in any week, or after tion of a woman in interstate commerce for the hour of 7 o’clock p.m. or before the the purpose of prostitution was _ forbid-

hour of 6 o’clock A.M.? den. . . . [Cites other cases. |

The power essential to the passage of this In each of these instances the use of act, the government contends, is found in interstate transportation was necessary to the commerce clause of the Constitution the accomplishment of harmful results. In which authorizes Congress to regulate com- other words, although the power over intermerce with foreign nations and among the _ state transportation was to regulate, that

States. ... could only be accomplished by prohibiting

But it is insisted that adjudged cases in’ the use of the facilities of interstate comthis court establish the doctrine that the merce to effect the evil intended. power to regulate given to Congress inci- This element is wanting in the present dentally includes the authority to prohibit case. The thing intended to be accomplished the movement of ordinary commodities, and by this statute is the denial of the facilities

300 DOCUMENTS OF AMERICAN HIsTORY of interstate commerce to those manufac- Congress deems to be the more just standard

turers in the States who employ children of other States. within the prohibited ages. The act in its There is no power vested in Congress to

effect does not regulate transportation among require the States to exercise their police the States, but aims to standardize the ages power so as to prevent possible unfair comat which children may be employed in min- _ petition. Many causes may codperate to ing and manufacturing within the States. give one State, by reason of local laws or The goods shipped are of themselves harm- conditions, an economic advantage over

less. The act permits them to be freely others. The commerce clause was not inshipped after thirty days from the time of tended to give to Congress a general autheir removal from the factory. When of- thority to equalize such conditions. In some fered for shipment, and before transporta- of the States laws have been passed fixing tion begins, the labor of their production is minimum wages for women, in others the

over, and the mere fact that they were local law regulates the hours of labor of

intended for interstate commerce transporta- women in various employments. Business tion does not make their production subject done in such States may be at an economic

to federal control under the commerce disadvantage when compared with States

power. which have no such regulation; surely, this Commerce “consists of intercourse and fact does not give Congress the power to traffic . . . and includes the transportation deny transportation in interstate commerce of persons and property, as well as the pur- to those who carry on business where the chase, sale and exchange of commodities.” hours of labor and the rate of compensation The making of. goods and the mining of coal for women have not been fixed by a standard

are not commerce, nor does the fact that in use in other States and approved by Conthese things are to be afterwards shipped, or gress. used in interstate commerce, make their The grant of power to Congress over the

production a part thereof. subject of interstate commerce was to enable Over interstate transportation, or its inci- it to regulate such commerce, and not to dents, the regulatory power of Congress is give it authority to control the States in ample, but the production of articles in- their exercise of the police power over local tended for interstate commerce is a matter trade and manufacture.

of local regulation. ...If it were other- The grant of authority over a purely wise, all manufacture intended for interstate federal matter was not intended to destroy shipment would be brought under federal the local power always existing and carefully control to the practical exclusion of the reserved to the States in the Tenth Amendauthority of the states, a result certainly not ment to the Constitution. .. . contemplated by the framers of the Con- That there should be limitations upon the stitution when they vested in Congress the right to employ children in mines and facto-

authority to regulate commerce among the ries in the interest of their own and the

states. public welfare, all will admit. That such It is further contended that the authority employment is generally deemed to require of Congress may be exerted to control inter- regulation is shown by the fact that the brief

state commerce in the shipment of child- of counsel states that every state in the made goods because of the effect of the Union has a law upon the subject, limiting circulation of such goods in other States the right to thus employ children. In North where the evil of this class of labor has Carolina, the State wherein is located the been recognized by local legislation, and the factory in which the employment was had right to thus employ child labor has been’ in the present case, no child under twelve more rigorously restrained than in the state years of age is permitted to work.

of production. In other words, that the It may be desirable that such laws be

unfair competition thus engendered may be uniform, but our federal government is one controlled by closing the channels of inter- of enumerated powers. ...

state commerce to manufacturers in those To sustain this statute would not be, in States where the local laws do not meet what our judgment, a recognition of the lawful

HAMMER V. DAGENHART ET AL. 301 exertion of congressional authority over in- the statute in question is within the power terstate commerce, but would sanction an expressly given to Congress if considered invasion by the federal power of the control only as to its immediate effects, and that if of a matter purely local in its character, and invalid it is so only upon some collateral over which no authority has been delegated ground. The statute confines itself to pro-

to Congress in conferring the power to hibiting the carriage of certain goods in regulate commerce among the states... . interstate or foreign commerce. Congress is In our view the necessary effect of this given power to regulate such commerce in act is, by means of a prohibition against the unqualified terms. It would not be argued movement in interstate commerce of ordi- to-day that the power to regulate does not nary commercial commodities, to regulate include the power to prohibit. Regulation the hours of labor of children in factories means the prohibition of something, and and mines within the States, a purely state when interstate commerce is the matter to authority. Thus the act. in a twofold sense be regulated I cannot doubt that the regulais repugnant to the Constitution. It not only tions may prohibit any part of such comtranscends the authority delegated to Con- merce that Congress sees fit to forbid. At gress over commerce, but also exerts a power ll events it is established by the Lottery as to a purely local matter to which the Case and others that have followed it that federal authority does not extend. The far- a law is not beyond the regulative power of reaching result of upholding the act cannot Congress merely because it prohibits certain be more plainly indicated than by pointing transportation out and out. So I repeat that out that if Congress can thus regulate mat- this statute in its immediate operation 1s ters intrusted to local authority by prohibi- clearly within the Congress’s constitutional tion of the movement of commodities in power. interstate commerce, all freedom of com- The question, then, is narrowed to whether merce will be at an end, and the power of the exercise of its otherwise constitutional the states over local matters may be elimi- power by Congress can be pronounced unnated, and thus our system of government constitutional because of its possible reac-

be practically destroyed. tion upon the conduct of the States in a For these reasons we hold that this law matter upon which I have admitted that

exceeds the constitutional authority of Con- they are free from direct control. I should gress. It follows that the decree of the dis- have thought that that matter had been dis-

trict court must be affirmed. posed of so fully as to leave no room for doubt. I should have thought that the most

HouMEs, J., dissenting: conspicuous decisions of this court had made

The single question in this case is whether it clear that the power to regulate commerce

Congress has power to prohibit the ship- and other constitutional powers could not ment in interstate or foreign commerce of any be cut down or qualified by the fact that it

product of cotton mill [etc.].... The ob- might interfere with the carrying out of the jection. urged against the power is that the domestic policy of any state. States have exclusive control over their meth- The manufacture of oleomargarine is as ods of production and that Congress cannot much a matter of state regulation as the meddle with them, and taking the proposition manufacture of cotton cloth. Congress levied in the sense of direct intermeddling I agree to a tax upon the compound when colored so it and suppose that no one denies it. But if an as to resemble butter that was so great as

act is within the powers specifically con- obviously to prohibit the manufacture and ferred upon Congress, it seems to me that it sale. In a very elaborate discussion the presis not made any less constitutional because ent chief justice excluded any inquiry into

of the indirect effects that it may have, the purpose of an act which, apart from however obvious it may be that it will Lave that purpose, was within the power of Conthose effects, and that we are not at liberty gress. McCray v. United States, 195 U. S.

upon such grounds to hold it void. 27... . Fifty years ago a tax on state

The first step in any argument is to make’ banks, the obvious purpose and actual efplain what no one is likely to dispute—that fect of which was to drive them, or at least

302 DOCUMENTS OF AMERICAN HISTORY their circulation, out of existence, was sus- But I had thought that the propriety of tained, although the result was one that Con- the exercise of a power admitted to exist gress had no constitutional power to re- in some cases was for the consideration of quire. The court made short work of the Congress alone, and that this court always argument as to the purpose of the act. “The had disavowed the right to intrude its judgjudicial cannot prescribe to the legislative ment upon questions of policy or morals. It departments of the government limitations is not for this court to pronounce when upon the exercise of its acknowledged pow- prohibition is necessary to regulation if it ers.” Veasze Bank v. Fenno, 8 Wallace 533. ever may be necessary—to say that it is ... And to come to cases upon interstate permissible as against strong drink, but not commerce, ... the Sherman Act has been as against the product of ruined lives. made an instrument for the breaking up of The act does not meddle with anything combinations in restraint of trade and _ belonging to the States. They may regulate monopolies, using the power to regulate’ their internal affairs and their domestic commerce as a foothold, but not proceeding commerce as they like. But when they seek because that commerce was the end actually to send their products across the state line

in mind. The objection that the control of they are no longer within their rights. If the states over production was interfered there were no Constitution and no Congress with was urged again and again, but always their power to cross the line would depend

In vain... . upon their neighbors. Under the Constitu-

The Pure Food and Drug Act which was’ tion such commerce belongs not to the sustained in Hipolite Egg Co. v. United States, but to Congress to regulate. It may States, 220 U. S. 45, with the intimation carry out its views of public policy whatthat “no trade can be carried on between the — ever indirect effect they may have upon the

states to which it [the power of Congress activities of the States. Instead of being to regulate commerce| does .not extend,’ encountered by a prohibitive tariff at her applies not merely to articles that the chang- boundaries, the State encounters the public

ing opinions of the time condemn as in-_ policy of the United States which it is for trinsically harmful, but to others innocent Congress to express. The public policy of in themselves, simply on the ground that the the United States 1s shaped with a view to order for them was induced by a preliminary the benefit of the nation as a whole. If, as

fraud. It does not matter whether the sup- has been the case within the memory of posed evil precedes or follows the transporta- men still living, a State should take a dif-

tion. It is enough that, in the opinion of ferent view of the propriety of sustaining Congress, the transportation encourages the a lottery from that which generally prevails,

evil. . .. I cannot believe that the fact would require

The notion that prohibition is any less a different decision from that reached in prohibition when applied to things now Champion v. Ames. Yet in that case it would thought evil I do not understand. But if be said with quite as much force as in this there is any matter upon which civilized that Congress was attempting to intermeddle countries have agreed,—far more unani- with the State’s domestic affairs. The namously than they have with regard to in- tional welfare as understood by Congress

toxicants and some other matters over may require a different attitude within its which this country is now emotionally sphere from that of some self-seeking State. aroused,—it is the evil of premature and ex- It seems to me entirely constitutional for cessive child labor. I should have thought Congress to enforce its understanding by that if we were to introduce our own moral all the means at its command.

conceptions where, in my opinion, they do Mr. Justice McKenna, Mr. Justice not belong, this was preéminently a case for Branpeis, and Mr. JusticE CLARKE concur upholding the exercise of all its powers by in this opinion. the United States.

WiLtson v. NEW 303 414. THE ADAMSON ACT September 3, 5, 1916 (U.S. Statutes at Large, Vol. XX XIX, p. 721 ff.) In March, 1916, the Four Brotherhoods of Rail- engaged in any capacity in the operation of way workers demanded an eight-hour day with- trains used for the transportation of persons

out reduction of wages, and threatened a nation- or property on railroads, ... from any wide strike unless their demands were complied State or Territory of the United States or with. As a tie-up in our transportation system the District of Columbia to any other State hat tne would have been dsastrous, Wikon oy" Territory of the United States or th actment of a law providing for an eight-hour day District of Columbia or from one place in a without reduction in wages: Congress responded Territory to another place in the same Terwith the Adamson Act. On the constitutionality ritory, or from any place in the United States of the measure, see Wilson v. New, Doc. No. 415. to an adjacent foreign country, or from

any place in the United States through a An act to establish an eight-hour day for foreign country to any other place in the employees of carriers engaged in interstate United States: Provided, That the above

, and foreign commerce, and for other pur- exceptions shall not apply to railroads

, poses though less than one hundred miles in BE. it enacted, That beginning Janu- length whose principal business is leasing or ary first, nineteen hundred and seventeen, furnishing terminal or transfer facilities to eight hours shall, in contracts for labor and other railroads, or are themselves engaged service, be deemed a day’s work and the in transfers of freight between railroads or measure or standard of a day’s work for between railroads and industrial plants. . . . the purpose of reckoning the compensa- Sec. 2. That the President shall appoint a tion for services of all employees who are commission of three, which shall observe the now or may hereafter be employed by any operation and effects of the institution of common carrier by railroad, except railroads the eight-hour standard workday. .. . independently owned and operated not ex- Sec. 3. That pending the report of the ceeding one hundred miles in length, electric commission . . . and for a period of thirty street railroads, and electric interurban rail- days thereafter, the compensation of railroads, which is subject to the provisions of _ way employees subject to this Act for a the Act of February 4, 1887, entitled “An standard eight-hour workday shall not be Act to regulate commerce,” as amended, and reduced below the present standard day’s

who are now or may hereafter be actually wage.... 415. WILSON v. NEW

243 U.S. 332 1917

Appeal from the District Court for Western Dis- merce, is the principal question here to be trict of Missouri. Suit to enjoin enforcement of considered... . the Adamson Act fixing an eight-hour work day [Review of history of passage of Adamson for and regulating wages of railway employees Ay by Congress] on interstate carriers. On the constitutionality of All the propositions relied upon and argu-

emergency legislation see the Minnesota Mortgage , ° Moratorium Case, Doc. No. 483. ments advanced ultimately come to two

questions: first, the entire want of constituWuite, C. J. Was there power in Congress, tional power to deal with the subjects emunder the circumstances existing, to deal braced by the statute, and second, such abuse with the hours of work and wages of rail- of the power, if possessed as rendered its road employees engaged in interstate com- exercise unconstitutional. We will consider

304 DOCUMENTS OF AMERICAN History these subjects under distinct propositions as to a standard of wages, their failure to

separately. agree, the resulting absence of such standI. The entire want of constitutional power ard, the entire interruption of interstate to deal with the subjects embraced by the commerce which was threatened, and the

Statute... . infinite injury to the public interest which

. . . Concretely stated, therefore, the was imminent,—it would seem inevitably to question is this: Did Congress have result that the power to regulate necessarily power, ... to provide a permanent eight- obtained and was subject to be applied to hour standard and to create by legislative the extent necessary to provide a remedy

action a standard of wages to be operative for the situation, which included the power upon the employers and employees for such to deal with the dispute, to provide by apreasonable time as it deemed necessary to propriate action for a standard of wages to afford an opportunity for the meeting of fill the want of one caused by the failure to the minds of employers and employees on exert the private right on the subject, and the subject of wages? Or, in other words, to give effect by appropriate legislation to did it have the power, in order to prevent the regulations thus adopted. This must be the interruption of interstate commerce, to unless it can be said that the right to so exert its will to supply the absence of a wage regulate as to save and protect the public scale resulting from the disagreement as to interest did not apply to a case where the wages between the employers and employees, destruction of the public right was imand to make its will on that subject con- minent as the result of a dispute between the trolling for the limited period provided for? parties and their consequent failure to esComing to the general considerations by tablish by private agreement the standard which both subjects must be controlled, to of wages which was essential; in other words, simplify the analysis for the purpose of con- that the existence of the public right and sidering the question of inherent power, we the public power to: preserve it was wholly put the question as to the eight-hour stand- under the control of the private right to ard entirely out of view, on the ground that establish a standard by agreement. Nor is the authority to permanently establish it is it an answer to this view to suggest that so clearly sustained as to render the subject the situation was one of emergency, and

not disputable... . that emergency cannot be made the source That the business of common carriers by of power. The proposition begs the question, rail is in a sense a public business because since although an emergency may not call

of the interest of society in the continued into life a power which has never lived, operation and rightful conduct of such busi- nevertheless emergency may afford a reason

ness, and that the public interest begets a for the exertion of a living power already public right of regulation to the full extent enjoyed... . necessary to secure and protect it, is settled Let us... briefly recapitulate some of by so many decisions, state and Federal, the more important of the regulations which and is illustrated by such a continuous exer- have been enacted in the past in order to tion of state and Federal legislative power, show how necessarily the exertion of the as to leave no room for question on the sub- power to enact them manifests the existence

ject. It is also equally true that as the right of the legislative authority to ordain the to fix by agreement between the carrier and__ regulation now before us, and how com-

its employees a standard of wages to con- pletely the whole system of regulations trol their relations is primarily private, the adopted in the past would be frustrated or establishment and giving effect to such rendered unavailing if the power to regulate agreed-on standard is not subject to be con- under the conditions stated, which was ex-

trolled or prevented by public authority. erted by the act before us, was not posBut, taking all these propositions as un-_ sessed.... doubted, if the situation which we have de- In the presence of this vast body of acscribed and with which the act of Congress knowledged powers there would seem to be

dealt be taken into view,—that is, the dis- no ground for disputing the power which pute between the employers and employees was exercised in the act which is before

PEACE WITHOUT VICTORY 305 us .. . to exert the legislative will for the the parties,—a power none the less efficacipurpose of settling the dispute, and bind both ously exerted because exercised by direct parties to the duty of acceptance and com- legislative act instead of by the enactment pliance, to the end that no individual dis- of other and appropriate means providing pute or difference might bring ruin to the for the bringing about of such result. If it vast interests concerned in the movement of be conceded that the power to enact the interstate commerce, for the express purpose statute was in effect the exercise of the

of protecting and preserving which the right to fix wages where, by reason of the plenary legislative authority granted to Con- dispute, there had been a failure to fix by

gress was reposed. .. . agreement, it would simply serve to show the

We are of the opinion that the reasons nature and character of the regulation esstated conclusively establish that, from the sential to protect the public right and safepoint of view of inherent power, the act guard the movement of interstate commerce, which is before us was clearly within the not involving any denial of the authority legislative power of Congress to adopt, and to adopt it... . that, in substance and effect, it amounted We conclude that the court below erred

to an exertion of its authority under the in holding the statute was not within the

circumstances disclosed to compulsorily arbi- power of Congress to enact and its decree

trate the dispute between the parties by must therefore be... reversed. establishing as to the subject-matter of that Justices Day, Pitney, Van Devanter and dispute a legislative standard of wages opera- McReynolds dissenting.

tive and binding as a matter of law upon

416. PEACE WITHOUT VICTORY Address of President Wilson to the United States Senate January 22, 1917 (U. S. 64th Congress, 2nd Sess., Sen. Document 685) This memorable speech, calling for a peace with- about to be challenged. They do not wish to

out victory, anticipated in many respects the withhold it. But they owe it to themselves Fourteen Points speech, and indicated Wilson’s and to the other nations of the world to determination to provide machinery for the state the conditions under which they will maintenance of international peace. The term feel free to render it “peace without victory” inspired a great deal of Th ey hi h hi contemporary derision. See C. Seymour, Ameri- at service 1s nothing less than this, to

can Diplomacy During the World War. add their authority and their power to the authority and force of other nations to

guarantee peace and justice throughout the

Gentlemen of the Senate: ... world. Such a settlement cannot now be long

.. . I have sought this opportunity to ad- postponed. It is right that before it comes dress you because I thought that I owed it this Government should frankly formulate to you, as the counsel associated with me the conditions upon which it would feel in the final determination of our interna- justified in asking our people to approve its tional obligations, to disclose to you without formal and solemn adherence to a League for

reserve the thought and purpose that have Peace. I am here to attempt to state those been taking form in my mind in regard to conditions. the duty of our Government in the days to The present war must first be ended; but come when it will be necessary to lay afresh we owe it to candor and to a just regard for

and upon a new plan the foundations of the opinion of mankind to say that, so far

peace among the nations. as our participation in guarantees of future It is inconceivable that the people of the peace is concerned, it makes a great deal of United States should play no part in that difference in what way and upon what terms

great enterprise. ... They cannot in honor it is ended. The treaties and agreements withhold the service to which they are now’ which bring it to an end must embody terms

306 DOCUMENTS OF AMERICAN History which will create a peace that is worth tation was in my thought. I am seeking only guaranteeing and preserving, a peace that to face realities and to face them without will win the approval of mankind, not merely soft concealments. Victory would mean a peace that will serve the several interests peace forced upon the loser, a victor’s terms

and immediate aims of the nations en- imposed upon the vanquished. It would be

gaged... . accepted in humiliation, under duress, at an No covenant of co-operative peace that intolerable sacrifice, and would leave a sting,

does not include the peoples of the New a resentment, a bitter memory upon which World can suffice to keep the future safe terms of peace would rest, not permanently, against war; and yet there is only one sort but only as upon quicksand. Only a peace of peace that the peoples of America could between equals can last. Only a peace the join in guaranteeing. The elements of that very principle of which is equality and a peace must be elements that engage the con- common participation in a common benefit.

fidence and satisfy the principles of the The right state of mind, the right feeling beAmerican governments, elements consistent tween nations, is as necessary for a lasting with their political faith and with the practi- peace as is the just settlement of vexed cal convictions which the peoples of America questions of territory or of racial and nahave once for all embraced and undertaken _ tional allegiance.

to defend... . . The equality of nations upon which peace It will be absolutely necessary that a force must be founded if it is to last must be an be created as a guarantor of the permanency equality of rights; the guarantees exchanged

of the settlement so much greater than the must neither recognize nor imply a difforce of any nation now engaged or any ference between big nations and small, bealliance hitherto formed or projected that tween those that are powerful and those no nation, no probable combination of na- that are weak. Right must be based upon tions could face or withstand it. If the peace the common strength, not upon the indipresently to be made is to endure, it must be vidual strength, of the nations upon whose a peace made secure by the organized major concert peace will depend. Equality of ter-

force of mankind. ritory or of resources there of course cannot

The terms of the immediate peace agreed be; nor any sort of equality not gained in upon will determine whether it is a peace the ordinary peaceful and legitimate developfor which such a guarantee can be secured. ment of the peoples themselves. But no one

The question upon which the whole future asks or expects anything more than an peace and policy of the world depends is equality of rights. Mankind is looking now

this: Is the present war a struggle for a for freedom of life, not for equipoises of just and secure peace, or only for a new _ power. balance of power? If it be only a struggle And there is a deeper thing involved than for a new balance of power, who will guaran- even equality of right among organized natee, who can guarantee the stable equilibrium tions. No peace can last, or ought to last,

of the new arrangement? Only a tranquil which does not recognize and accept the Europe can be a stable Europe. There must principle that governments derive all their

be, not a balance of power, but a com- just powers from the consent of the govmunity of power; not organized rivalries, erned, and that no right anywhere exists to

but an organized common peace. hand peoples about from sovereignty to Fortunately we have received very ex- sovereignty as if they were property. I take plicit assurances on this point... .I think it for granted, for instance, if I may venture it will be serviceable if I attempt to set upon a single example, that statesmen every-

forth what we understand them to be. where are agreed that there should be a

They imply, first of all, that it must be a united, independent, and autonomous Poland,

peace without victory. It is not pleasant to and that henceforth inviolable security of say this. I beg that I may be permitted to life, of worship, and of industrial and social put my own interpretation upon it and that development should be guaranteed to all it may be understood that no other interpre- peoples who have lived hitherto under the

PEACE WITHOUT VICTORY 307 : power of governments devoted to a faith and and nations must adjust and accommodate

, purpose hostile to their own... . their policy to it as they have planned for So far as practicable, moreover, every great war and made ready for pitiless contest and people now struggling towards a full develop- rivalry. The question of armaments, whether

ment of its resources and of its powers on land or sea, is the most immediately and should be assured a direct outlet to the intensely practical question connected with great highways of the sea. Where this cannot the future fortunes of nations and of man-

be done by the cession of territory, it can kind. no doubt be done by the neutralization of I have spoken upon these great matters | direct rights of way under the general guar- without reserve and with the utmost exantee which will assure the peace itself. With plicitness because it has seemed to me to be

a right comity of arrangement no nation necessary if the world’s yearning desire for need be shut away from free access to the peace was anywhere to find free voice and

open paths of the world’s commerce. utterance. Perhaps I am the only person in And the paths of the sea must alike in law high authority amongst all the peoples of and in fact be free. The freedom of the seas the world who is at liberty to speak and hold is the sine qua non of peace, equality, and nothing back. I am speaking as an individual,

co-operation. No doubt a somewhat radical and yet I am speaking also, of course, as reconsideration of many of the rules of in- the responsible head of a great government, ternational practice hitherto thought to be and I feel confident that I have said what established may be necessary in order to’ the people of the United States would wish

make the seas indeed free and common in- me to Say.... practically all circumstances for the use of I am proposing, as it were, that the namankind, but the motive for such changes is _ tions should with one accord adopt the doc-

convincing and compelling. There can be trine of President Monroe as the doctrine no trust or intimacy between the peoples of of the world: that no nation should seek to the world without them. The free, constant, extend its polity over any other nation or unthreatened intercourse of nations is an es- people, but that every people should be left

sential part of the process of peace and of free to determine its own polity, its own development. It need not be difficult either way of development, unhindered, unthreatto define or to secure the freedom of the ened, unafraid, the little along with the great seas if the governments of the world sin- and powerful. cerely desire to come to an agreement con- I am proposing that all nations henceforth

cerning it. avoid entangling alliances which would draw

It 1s a problem closely connected with them into competitions of power; catch , the limitation of naval armaments and the them in a net of intrigue and selfish rivalry, co-operation of the navies of the world in’ and disturb their own affairs with influ-

keeping the seas at once free and safe. And ences intruded from without. There is no the question of limiting naval armaments entangling alliance in a concert of power. opens the wider and perhaps more difficult When all unite to act in the same sense and question of the limitation of armies and of | with the same purpose all act in the common all programs of military preparation. Dif- interest and are free to live their own lives ficult and delicate as these questions are, under a common protection. they must be faced with the utmost candor I am proposing government by the consent and decided in a spirit of real accommoda- of the governed; that freedom of the seas tion if peace is to come with healing in its which in international! conference after conwings, and come to stay. Peace cannot be ference representatives of the United States had without concession and sacrifice. There have urged with the eloquence of those who

can be no sense of safety and equality are the convinced disciples of liberty; and

among the nations if great preponderating that moderation of armaments which makes

armaments are henceforth to continue here of armies and navies a power for order and there to be built up and maintained. The merely, not an instrument of aggression or statesmen of the world must plan for peace of selfish violence,

308 DOCUMENTS OF AMERICAN HistTorRy These are American principles, American of every modern nation, of every enlightened policies. We could stand for no others. And community. They are the principles of manthey are also the principles and policies of kind and must prevail. forward looking men and women everywhere,

417. THE ZIMMERMANN NOTE Released March 1, 1917 (J. B. Scott, ed. Diplomatic Correspondence between the United States and Germany,

p. 338)

This note from the German Foreign Secretary to general financial support, and it is underthe German Minister in Mexico, was received by stood that Mexico is to reconquer the lost the United States Department of State from territory in New Mexico, Texas, and Arizona. the British Naval] Intelligence Service, february The details are left for your settlement. 26. It was Promptly given to the press, anc was You are instructed to inform the President very effective in consolidating public opinion in . favor of war against Germany. See, C. H. Grat- of Mexico of the above in the greatest contan, Why We Fought; J. B. Scott, Survey of In- fidence as soon as it is certain there will be ternational Relations Between the United States an outbreak of war with the United States,

and Germany, 1914-1917. and we suggest that the President of Mexico

on his own initiative should communicate Berlin, January 19, 1917 with Japan suggesting adherence at once to On the first of February we intend to be- this plan; at the same time offer to mediate gin submarine warfare unrestricted. In spite between Germany and Japan.

of this it is our intention to keep neutral Please call to the attention of the Presi-

the United States of America. dent of Mexico that the employment of If this attempt is not successful we pro- ruthless submarine warfare now promises to pose an alliance on the following basis with compel England to make peace in a few Mexico: That we shall make war together months.

and together make peace. We shall give Zimmermann, 418. WILSON’S SPEECH FOR DECLARATION OF WAR AGAINST GERMANY

Address delivered at Joint Session of the Two Houses of Congress, April 2, 1917 (U.S. 65th Congress, Ist Session, Senate Doc. 5) Wilson had been successful during his first ad- We Fought; C. Seymour, ed., The Intimate Paministration in avoiding entry into the World pers of Colonel House, Vol. II; C. Seymour, War, and the slogan “he kept us out of war” American Diplomacy During the World War.

Navewber, 1916. TA January, it 517, however I have called the Congress into extraordiGermany informed the United States that she T4IY session because there are serious, very intended to resume unrestricted submarine war- ‘Serious, choices of policy to be made, and fare; on February 3, Ambassador Bernstorff re- made immediately, which it was neither ceived his passports, and diplomatic relations right nor constitutionally permissible that I with Germany were severed. During March three should assume the responsibility of making.

American merchant ships were sunk by subma- On the third of February last I officially rines, and Wilson called Congress into extraordi- _Jajq before you the extraordinary announcenary session, for April 2. Four days later Congress ment of the Imperial German Government

declared war with Germany; waruntil was notDecember de- 111 on and after the first day of February clared upon Austria 7, 1917. Wil..;

son’s speech to Congress was one of the most it was its purpose to put aside all restraints notable of all his addresses: only the First Inau- Of law or of humanity and use its subgural can be compared to it for eloquence. On Marines to sink every vessel that sought to the causes of the War, see, C. H. Grattan, Why approach either the ports of Great Britain

WILSON’S SPEECH FOR WAR AGAINST GERMANY 309 and Ireland or the western coasts of Europe understandings that were supposed to underor any of the ports controlled by the ene- lie the intercourse of the world. I am not now mies of Germany within the Mediterranean. thinking of the loss of property involved, im-

That had seemed to be the object of the mense and serious as that is, but only of the German submarine warfare earlier in the wanton and wholesale destruction of the lives war, but since April of last year the Imperial of non-combatants, men, women, and chulGovernment had somewhat restrained the dren, engaged in pursuits which have always,

commanders of its undersea craft in con- even in the darkest periods of modern hisformity with its promise then given to us tory, been deemed innocent and legitimate. that passenger boats should not be sunk Property can be paid for; the lives of peaceand that due warning would be given to all ful and innocent people cannot be. The other vessels which its submarines might present German submarine warfare against seek to destroy, when no resistance was of- commerce is a warfare against mankind.

fered or escape attempted, and care taken It is a war against all nations. American that their crews were given at least a fair ships have been sunk, American lives taken,

chance to save their lives in their open in ways which it has stirred us very deeply boats. The precautions taken were meager to learn of, but the ships and people of other and haphazard enough, as was proved in dis- neutral and friendly nations have been sunk

tressing instance after instance in the and overwhelmed in the waters in the same progress of the cruel and unmanly business, way. There has been no discrimination. The but a certain degree of restraint was ob- challenge is to all mankind. Each nation must

served. The new policy has swept every decide for itself how it will meet it. The restriction aside. Vessels of every kind, what- choice we make for ourselves must be made ever their flag, their character, their cargo, with a moderation of counsel and a tempertheir destination, their errand, have been ateness of judgment befitting our character ruthlessly sent to the bottom without warn- and our motives as a nation. We must put ing and without thought of help or mercy excited feeling away. Our motive will not be for those on board, the vessels of friendly revenge or the victorious assertion of the neutrals along with those of belligerents. physical might of the nation, but only the Even hospital ships and ships carrying re- vindication of right, of human right, of which lief to the sorely bereaved and stricken peo- we are only a single champion.

ple of Belgium, though the latter were When I addressed the Congress on the provided with safe conduct through the pro- twenty-sixth of February last I thought that scribed areas by the German Government it- it would suffice to assert our neutral rights self and were distinguished by unmistakable with arms, our right to use the seas against marks of identity, have been sunk with the unlawful interference, our right to keep our

same reckless lack of compassion or of people safe against unlawful violence. But

principle. armed neutrality, it now appears, is impracI was for a little while unable to believe ticable. Because submarines are in effect outthat such things would in fact be done by any laws when used as the German submarines government that had hitherto subscribed to have been used against merchant shipping, it the humane practices of civilized nations. In- _is impossible to defend ships against their atternational law had its origin in the attempt tacks as the law of nations has assumed that to set up some law which would be respected merchantmen would defend themselves

and observed upon the seas, where no na- against privateers or cruisers, visible craft tion had right of dominion and where lay the giving chase upon the open sea. It is common

free highways of the world. ... This mini- prudence in such circumstances, grim necesmum of right the German Government has _ sity indeed, to endeavor to destroy them beswept aside under the plea of retaliation and fore they have shown their own intention.

necessity and because it had no weapons They must be dealt with upon sight, if dealt which it could use at sea except these which with at all. The German Government denies it is Impossible to employ as it is employing the right of neutrals to use arms at all within

them without throwing to the winds all the areas of the sea which it has proscribed, scruples of humanity or of respect for the even in the defense of rights which no modern

310 DOCUMENTS OF AMERICAN HISTORY publicist has ever before questioned their the immediate addition to the armed forces right to defend. The intimation is conveyed of the United States already provided for by that the armed guards which we have placed law in case of war at least five hundred on our merchant ships will be treated as be- thousand men, who should, in my opinion, be yond the pale of law and subject to be dealt chosen upon the principle of universal liawith as pirates would be. Armed neutrality is bility to service, and also the authorization ineffectual enough at best; in such circum- of subsequent additional increments of equal stances and in the face of such pretensions it force so soon as they may be needed and can : is worse than ineffectual: it is likely only to _ be handled in training. It will involve also, of

produce what it was meant to prevent; it is course, the granting of adequate credits to practically certain to draw us into the war the Government, sustained, I hope, so far as without either the rights or the effectiveness they can equitably be sustained by the of belligerents. There is one choice we cannot present generation, by well conceived taxa-

make, we are incapable of making: we will tion... .

not choose the path of submission and suffer While we do these things, these deeply mothe most sacred rights of our Nation and our mentous things, let us be very clear, and people to be ignored or violated. The wrongs make very clear to all the world what our against which we now array ourselves are no motives and our objects are. My own thought common wrongs; they cut to the very roots has not been driven from its habitual and

of human life. normal course by the unhappy events of the With a profound sense of the solemn and last two months, and I do not believe that even tragical character of the step Iam tak- the thought of the Nation has been altered

ing and of the grave responsibilities which it or clouded by them. I have exactly the same involves, but in unhesitating obedience to things in mind now that I had in mind when what I deem my constitutional duty, I ad- I addressed the Senate on the twenty-second

vise that the Congress declare the recent of January last; the same that I had in mind course of the Imperial German Government when I addressed the Congress on the third to be in fact nothing less than war against of February and on the twenty-sixth of Febthe government and people of the United ruary. Our object now, as then, is to vindiStates; that it formally accept the status of cate the principles of peace and justice in belligerent which has thus been thrust upon the life of the world as against selfish and it; and that it take immediate steps not only autocratic power and to set up amongst the to put the country in a more thorough state really free and self-governed peoples of the of defense but also to exert all its power and world such a concert of purpose and of acemploy all its resources to bring the Govern- _ tion as will henceforth insure the observance

ment of the German Empire to terms and _ of those principles. Neutrality is no longer

end the war. feasible or desirable where the peace of the

What this will involve is clear. It will in- world is involved and the freedom of its volve the utmost practicable coodperation in peoples, and the menace to that peace and counsel and action with the governments now’ freedom lies in the existence of autocratic

at war with Germany, and, as incident to governments backed by organized force that, the extension to those governments of | which is controlled wholly by their will, not the most liberal financial credits, in order by the will of their people. We have seen the that our resources may so far as possible be last of neutrality in such circumstances. We added to theirs. It will involve the organiza- are at the beginning of an age in which it will tion and mobilization of all the material re- be insisted that the same standards of consources of the country to supply the mate- duct and of responsibility for wrong done rials of war and serve the incidental needs of | shall be observed among nations and their the Nation in the most abundant and yet the governments that are observed among the most economical and efficient way possible. individual citizens of civilized states.

It will involve the immediate full equipment We have no quarrel with the German of the navy in all respects but particularly in people. We have no feeling towards them but supplying it with the best means of dealing one of sympathy and friendship. It was not with the enemy’s submarines. It will involve upon their impulse that their government

WILsoNn’s SPEECH FOR WAR AGAINST GERMANY 311 acted in entering this war. It was not with ment has, indeed, avowed its unqualified intheir previous knowledge or approval. It was dorsement and acceptance of the reckless and a war determined upon as wars used to be lawless submarine warfare adopted now withdetermined upon in the old, unhappy days out disguise by the Imperial German Governwhen peoples were nowhere consulted by ment, and it has therefore not been possible

their rulers and wars were provoked and for this Government to receive Count

waged in the interest of dynasties or of little Tarnowski, the Ambassador recently acgroups of ambitious men who were accus- credited to this Government by the Impcrial tomed to use their fellow men as pawns and and Royal Government of Austria-Hungary ;

tools. ... but that Government has not actually en-

, We are accepting this challenge of hostile gaged in wartare against citizens of the

purpose because we know that in such a_ United States on the seas, and I take the Government, following such methods, we can liberty, for the present at least, of postponnever have a friend; and that in the presence ing a discussion of our relations with the of its organized power, always lying in wait authorities at Vienna. We enter this war only to accomplish we know not what purpose, where we are clearly forced into it because

there can be no assured security for the there are no other means of defending our democratic Governments of the world. We _ rights.

are now about to accept gauge of battle with It will be all the easier for us to conduct this natural foe to liberty and shall, if neces- ourselves as belligerents in a high spirit of sary, spend the whole force of the nation to right and fairness because we act without check and nullify its pretensions and its animus, not in enmity towards a people or power. We are glad, now that we see the with the desire to bring any injury or disadfacts with no veil of false pretense about vantage upon them, but only in armed oppothem, to fight thus for the ultimate peace of _ sition to an irresponsible government which

the world and for the liberation of its has thrown aside all considerations of hu, peoples, the German peoples included: for manity and of right and is running amuck.

the rights of nations great and small and the We are, let me say again, the sincere friends privilege of men everywhere to choose their of the German people, and shall desire nothway of life and of obedience. The world must ing so much as the carly reéstablishment of be made safe for democracy, Its peace must intimate relations of mutual advantage be-

be planted upon the tested foundations of tween us,—however hard it may be for | political liberty. We have no selfish ends to them, for the time being, to believe that this serve. We desire no conquest, no dominion. is spoken from our hearts. We have borne We seek no indemnities for ourselves, no ma- with their present Government through all terial compensation for the sacrifices we shall these bitter months because of that friendfreely make. We are but one of the cham- ship,—cxercising a patience and forbearance pions of the rights of mankind. We shall be which would otherwise have been impossible. satisfied when those rights have been made We shall, happily, still have an opportunity

as secure as the faith and the freedom of to prove that friendship in our daily attitude

nations can make them. and actions towards the millions of men and Just because we fight without rancor and women of German birth and native sympathy without selfish object, seeking nothing for who live amongst us and share our life, and ourselves but what we shall wish to share’ we shall be proud to prove it towards all who with all free peoples, we shall, I feel confi- are in fact loyal to their neighbors and to the dent, conduct our operations as belligerents Government in the hour of test. They are, without passion and ourselves observe with most of them, as true and loyal Americans as proud punctilio the principles of right and of if they had never known any other fealty or fair play we profess to be fighting for. allegiance. They will be prompt to stand with I have said nothing of the Governments us in rebuking and restraining the few who allied with the Imperial Government of Ger- may be of a different mind and purpose. If many because they have not made war upon’ there should be disloyalty, it will be dealt us or challenged us to defend our right and with with a firm hand of stern repression; our honor. The Austro-Hungarian Govern- but, if it lifts its head at all, it will lift it only

312 DOCUMENTS OF AMERICAN HISTORY here and there and without countenance own Governments, for the rights and liberties except from a lawless and malignant few. of small nations, for a universal dominion of It is a distressing and oppressive duty, right by such a concert of free peoples as Gentlemen of the Congress, which I have shall bring peace and safety to all nations performed in thus addressing you. There are, and make the world itself at last free. To it may be, many months of fery trial and such a task we can dedicate our lives and our sacrifice ahead of us. It is a fearful thing to fortunes, everything that we are and everylead this great peaceful people into war, into thing that we have, with the pride of those the most terrible and disastrous of all wars, who know that the day has come when civilization itself seeming to be in the bal- America is privileged to spend her blood and ance. But the right is more precious than her might for the principles that gave her peace, and we shall fight for the things which _ birth and happiness and the peace which she we have always carried nearest our hearts,— has treasured. God helping her, she can do no

for democracy, for the right of those who _ other. submit to authority to have a voice in their

419. THE LEVER ACT August 10, 1917

(U.S. Statutes at Large, Vol. XL, p. 276 ff.) This act authorized the President to conserve purposes the instrumentalities . . . and profood and fuel during the prosecution of the hibitions hereinafter set forth are created. War. The guarantee of two dollars a bushel for The President is authorized to make such wheat was to last until May 1, 1919; actually tegylations and to issue such orders as are the price was fixed at $2.20 a bushel. Herbert essential effectively to carry out the provi-

Hoover was made Food Commissioner, and H. . .

A. Garfield Fuel Commissioner. See, C. R. Van sions of this Act. . . . Hise, Conservation and Regulation in the United SEC. 14. That whenever the President States during the World War; F. M. Surface, shall find that an emergency exists requiring The Stabilization of the Price of Wheat during stimulation of the production of wheat and the War; W.F. Willoughby, Government Organi- that it is essential that the producers of

zation in War Time and After. wheat, produced within the United States,

shall have the benefits of the guaranty pro-

An Article to provide for the national vided for in this section, he is authorized, security and defense by encouraging the pro- .. . to determine and fix and to give public duction, conserving the supply, and con- notice of what, under specified conditions, is trolling the distribution of food products and a reasonable guaranteed price for wheat, in

fuel. order to assure such producers a reasonable Be it enacted, That by reason of the exist- profit. The President shall thereupon fix such ence of a state of war, it is essential to the guaranteed price. . . . Thereupon, the Govnational security and defense, for the suc- ernment of the United States hereby guaran-

cessful prosecution of the war, and for the tees every producer of wheat produced support and maintenance of the Army and within the United States, that, upon comNavy, to assure an adequate supply and pliance by him with the regulations preequitable distribution, and to facilitate the scribed, he shall receive for any wheat promovement, of foods, feeds, fuel... and duced in reliance upon this guarantee within equipment required for the actual produ-- the period, not exceeding eighteen months, tion of foods, feeds, and fuel, hereafter in prescribed in the notice, a price not less than this Act called necessaries: to prevent, ... the guaranteed price therefor as fixed purscarcity, monopolization, hoarding, injurious suant to this section. ... The guaranteed speculation, manipulations . . . and private prices for the several standard grades of controls, affecting such supply, ... and to wheat for the crop of nineteen hundred and establish and maintain governmental control eighteen, shall be based upon number one of such necessaries during the war. For such northern spring or its equivalent at not less

THe LANSING-ISHII AGREEMENT 313 than $2 per bushel at the principal interior sure an adequate and continuous supply of primary markets. This guaranty shall not be food, or that the national security and dedependent upon the action of the President fense will be subserved thereby, he 1s under the first part of this section, but is authorized, from time to time, to prescribe hereby made absolute and shall be binding and give public notice of the extent of the until May first, nineteen hundred and nine- limitation, regulation, pronibition, or reduc-

teen. ... tion so necessitated. ... For the purpose of making any guaranteed SEC. 16. That the President is authorized

price effective under this section, or when- and directed to commandeer any or all disever he deems it essential . . . the President tilled spirits in bond or in stock at the date is authorized also, in his discretion, to pur- of the approval of this Act for redistillation, chase any wheat for which a guaranteed price__in so far as such redistillation may be necesshall be fixed . . . and to hold, transport, or sary to meet the requirements of the Governstore it, or to sell, dispose of, and deliver the ment in the manufacture of munitions and

same. ... other military and hospital supplies... .

SEC. 15. That from and after thirty days SEC. 24. That the provisions of this Act

from the date of the approval of this Act no — shall cease to be in effect when the existing

foods, fruits, food materials, or feeds shall state of war between the United States and be used in the production of distilled spirits Germany shall have terminated... . for beverage purposes: . . . Nor shall there SEC, 25. That the President of the United be imported into the United States any dis- States shall be, .. . empowered, whenever tilled spirits. Whenever the President shall and wherever in his judgment necessary for find that limit.tion, regulation, or prohibition the efficient prosecution of the war, to fix of the use of foods, fruits, food materials, or the price of coal and coke, wherever and

feeds in the production of malt or vinous whenever sold... to regulate the method liquors for beverage purposes, or that reduc- of production, sale, shipment, distribution, tion of the alcoholic content of any such malt apportionment, or storage thereof among or vinous liquor, is essential, in order to as- dealers and consumers... .

420. THE LANSING-ISHIT AGREEMENT November 2, 1917 (Foreign Relations of the United States, 1917, p. 264) In 1915 Japan had given notice to the world and Agreements with and Concerning China, Vol. that she would not, in fact, be bound by the II; W. W. Willoughby, Foreign Rights and InOpen Door policy. At this time she had presented _ terests in China, 2 Vols.; T. F. Millard, Democto China the notorious Twenty-One Demands, racy and the Eastern Question; H. Chung, The fifteen of which China was compelled to accept. Oriental Policy of the United States. By a series of secret agreements with the Allied

Powers, during 1916 and 1917, she had epartment secured D special concessions and promises of territorial of fState

acquisitions in the Far East. In the summer of Washington, November 2, 1917

1917 Viscount Ishii came to the United States on Excellency: I have the honor to communia special mission for the purpose of quieting cate herein my understanding of the agreeAmerican apprehensions of Japanese policies and ment reached by us in our recent conversasecuring from the United States a modification tions touching the questions of mutual of the Open Door policy. Ishii insisted that the interest to our Governments relating to the United States recognize Japan’s “paramount” in- Republic of China.

terest in China. The Lansing-Ishii agreement, In order to silence sch;

while apparently confirming the Open Door shence MUSC HeVOUs reports policy, did actually recognize that Japan had that have trom time to time been circulated, “special interests” in China; to that extent it it is believed by us that a public announcerepresented a diplomatic victory for Japan. See, ment once more of the desires and intentions S. F. Bemis, ed. American Secretaries of State, shared by our two Governments with regard

Vol. X, p. 126 ff.; J. V. A. MacMurray, Treaties to China is advisable.

314 DocUMENTS OF AMERICAN HIsToRY The Governments of the United States and fringe in any way the independence or terri-

Japan recognize that territorial propinquity torial integrity of China, and they declare, creates special relations between countries, furthermore, that they always adhere to the and consequently the Government of the principle of the so-called “open-door” or United States recognizes that Japan has equal opportunity for commerce and indusspecial interests in China, particularly in that try in China. part to which her possessions are contiguous. Moreover, they mutually declare that they The territorial sovereignty of China, never- are opposed to the acquisition by any govern-

theless, remains unimpaired, and the Gov- ment of any special rights or privileges that ernment of the United States has every would affect the independence or territorial confidence in the repeated assurances of the integrity of China, or that would deny to the Imperial Japanese Government that while subjects or citizens of any country the full geographical position gives Japan such spe- enjoyment of equal opportunity in the comcial interests, they have no desire to dis- merce and industry of China. Criminate against the trade of other nations I shall be glad to have Your Excellency or to disregard the commercial rights here- confirm this understanding of the agreement

other powers. Robert Lansing. tofore granted by China in treaties with reached by us.

The Governments of the United States and His Excellency Viscount Kikujiro Ishii Japan deny that they have any purpose to in-

421. BUNTING v. OREGON 243 U. S. 426 1917

Error to the supreme court of Oregon. This case cumstances. . . . We cannot know all of the involved the interpretation of an Oregon statute conditions that impelled the law or its parof 1913 establishing a ten hour day for allem- ticylar form. The supreme court, nearer to ployees in manufacturing establishments and pro- them, describes the law as follows: “It is viding that overtime work not to exceed three clear that the intent of the law is to make hours in one day must be paid at the rate of ten hours a regular day’s labor in the occupations to which reference is made. Apparently McKenna, J. . . . The consonance of the the provisions permitting labor for the overOregon law with the Fourteenth Amendment time on express conditions were made in

time and one-half of the regular wage.

Is the question in the case, and this depends order to facilitate the enforcement of the upon whether it is a proper exercise of the law, and in the nature of a mild penalty for police power of the State, as the supreme employing one not more than three hours

court of this State decided that it is. overtime. It might be regarded as more difThat the police power extends to health ficult to detect violations of the law by an regulations is not denied, but it is denied that employment for a shorter time than for a the law has such purpose or justification. It longer time. This penalty also goes to the is contended that it is a wage law, not a employee in case the employer avails himhealth regulation, and takes the property of self of the overtime clause.” ... .

plaintiff in error without due process... . But passing general considerations and

There is a certain verbal plausibility in the coming back to our immediate concern, which

contention that it was intended to permit is the validity of the particular exertion of thirteen hours’ work if there be fifteen and power in the Oregon law, our judgment of it one-half-hours’ pay, but the plausibility dis- is that it does not transcend constitutional

appears upon reflection. The provision for limits... . . overtime is permissive, in the same sense There is a contention made that the law,

that any penalty may be said to be permis- even regarded as regulating hours of service, sive. Its purpose is to deter by its burden, is not either necessary or useful “for preser-

and its adequacy for this was a matter of vation of the health of employees in mills,

legislative judgment under the particular cir- factories and manufacturing establishments.

IMMIGRATION RESTRICTION 315 The record contains no facts to support the in Australia, 8 hours; in Great Britain, 9; in contention, and against it is the judgment of | the United States, 934; in Denmark, 9%; in the legislature and the supreme court, which Norway, 10; Sweden, France, and Switzersaid: “In view of the well-known fact that land, 1014; Germany, 10/4; Belgium, Italy,

the custom in our industries does not sanc- and Austria, 11; and in Russia, 12 tion a longer service than 10 hours per day, hours.” .. . it cannot be held, as a matter of law, that Judgment affirmed.

the legislative requirement is unreasonable Wuite, C. J., and VAN DEVANTER, J., and or arbitrary as to hours of labor. Statistics McReynotps, J., dissented. BRANDEIS, J., show that the average daily working time took no part in the decision. among workingmen in different countries is,

422. IMMIGRATION RESTRICTION The Laws of 1917 and 1921 (U. S. Bureau of Immigration, Annual Report of the Commissioner-General of Immigration, 1923, p. 2 ff.) The law of 1917, passed over the veto of Presi- to the already numerous class of alleged undent Wilson, marked a definite end to our tradi- desirables who were denied admission, and tional immigration policy: the act of 1921 with obviously could not be relied upon actually its quota system inaugurated the present policy to limit the volume of immigration.

of severe restriction. This summary of the two The immigration act of 1882, which, as

important laws is given in lieuonofImmithe already acts themye he law selves. For a collection of Documents indicated, wasfirst t e lrstral gene gration, see E. Abbott, Selected Documents on Upon the subject, provided for the exclusion Immigration; Historical Aspects of the Immigra- from the United States of the following tion Problem. A brief history of the legislation of | classes only: Convicts, lunatics, idiots, and

the nineteen-twenties can be found in C. P. persons likely to become a public charge. Howland, ed. Survey of American Foreign Rela~- This law underwent more or less important

tions: 1929. revisions in 1891, 1893, 1903, 1907, and 1917, Perhaps it is not very generally realized until the last-mentioned act, which is the that the per centum limit law marked the be- present general immigration 1aw, denies adginning of actual restriction or limitation of | mission to many classes of aliens, including

immigration to the United States from the following: Idiots, imbeciles, feebleEurope, Africa, Australia, and a considerable minded persons, epileptics, insane persons, part of Asia. The Chinese exclusion act of | persons who have had one or more attacks of

1882, the passport agreement with Japan insanity at any time previously; persons of which became effective in 1908, and the constitutional psychopathic inferiority; per“barred zone” provision in the general immi- sons with chronic alcoholism; paupers; progration law of 1917 had already stopped or fessional beggars; vagrants; persons afflicted greatly reduced the influx of oriental peoples, with tuberculosis in any form or with a but so far as others, and particularly Euro- loathsome or dangerous contagious disease; peans, were concerned, all applicants who persons certified by the examining physician met the various tests prescribed in the gen- as being mentally or physically defective, eral law were admitted. This general law, such physical defect being of a nature which first enacted in 1882 and several times re- may affect the ability of the alien to earn a vised and strengthened, was and still is based living; persons who have been convicted of | on the principle of selection rather than of or admit having committed a felony or other numerical restriction. It is probably true that crime or misdemeanor involving moral turp)-

the provision barring illiterate aliens from tude; polygamists, or persons who practice admission, which was added to the general polygamy or believe in or advocate the praclaw in 1917, was intended as a restrictive tice of polygamy; anarchists and similar measure rather than a quality test, but in its classes; immoral persons and persons coming practical effect it was only another addition for an immoral] purpose; contract laborers;

316 DOCUMENTS OF AMERICAN HIsToRY persons likely to become a public charge; years nearly a million came, and there seems persons seeking admission within one year of to have been a general belief in Congress date of previous debarment or deportation; that it would increase rather than diminish. persons whose ticket or passage is paid for At the same time no one seems to have anwith the money of another or who are as-_ ticipated a revival of the formerly large insisted by others to come, unless it is affrma- flux from the “‘old sources,” as the countries tively shown that such persons do not.belong of northwest Europe came to be known. to one of the foregoing excluded classes; per- This remarkable change in the sources and sons whose ticket or passage is paid for by racial character of our immigrants led to an any corporation, association, society, munici- almost continuous agitation of the immigrapality, or foreign government, either directly tion problem both in and out of Congress, or indirectly; stowaways; children under 16 and there was a steadily growing demand for years of age unless accompanied by one or restriction, particularly of the newer moveboth of their parents; persons who are na- ment from the south and east of Europe. tives of certain geographically defined terri- During the greater part of this period of agitory; aliens over 16 years of age who are _ tation the so-called literacy test for aliens unable to read some language or dialect; cer- was the favorite weapon of the restrictiontain accompanying aliens, as described in the ists, and its widespread popularity appears to last proviso of section 18 of the act; and per- have been based quite largely on a belief, or sons who have arrived in Canada or Mexico at least a hope, that it would reduce to some

by certain steamship lines. Persons who fail extent the stream of “new” immigration, to meet certain passport requirements were about one-third of which was illiterate, withadded to the excluded classes in subsequent out seriously interfering with the coming of

legislation. the older type, among whom illiteracy was

Obviously it would be difficult to find, or at a minimum. even to invent, many other terms denoting Presidents Cleveland and Taft vetoed imindividual undesirability which might be migration bills because they contained a litadded to the foregoing list, but, as already eracy test provision, and President Wilson pointed out, the gereral law is essentially vetoed two bills largely for the same reason. selective in theory, for even its most rigid In 1917, however, Congress passed a general application with respect to the excludable immigration bill which included the literacy classes above enumerated could not be de- provision over the President’s veto, and, with pended upon to prevent the coming of un-_ certain exceptions, aliens who are unable to limited numbers of aliens who were able to’ read are no longer admitted to the United

meet the tests imposed. States. At that time, however, the World Even a casual survey of congressional dis- War had already had the effect of reducing cussions of the immigration problem during immigration from Europe to a low level, and

the past quarter of a century demonstrates our own entry into the conflict a few days very clearly that while the law makers were before the law in question went into effect deeply concerned with the mental, moral, and practically stopped it altogether. Consephysical quality of immigrants, there de- quently, the value of the literacy provision veloped as time went on an even greater con- as a means of restricting European immigracern as to the fundamental racial character tion was never fairly tested under normal of the constantly increasing numbers who conditions. came. The record of alien arrivals year by The Congress, however, seemingly realized year had shown a gradual falling off in the that even the comprehensive immigration law immigration of northwest European peoples, of 1917, including the literacy test, would afrepresenting racial stocks which were com- ford only a frail barrier against the promised mon to America even in colonial days, anda rush from the war-stricken countries of rapid and remarkably large increase in the Europe, and in December, 1920, the House movement from southern and eastern Euro- of Representatives, with little opposition, pean countries and Asiatic Turkey. Immigra- passed a bill to suspend practically all imtion from the last-named sources reached an migration for the time being. The per centum annual average of about 750,000 and in some limit plan was substituted by the Senate,

THE FOURTEEN POINTS 317 however, and the substitute prevailed in Con- so-called Asiatic barred zone; aliens who gress, but it failed to become a law at the have resided continuously for at least five time because President Wilson withheld ex- years in Canada, Newfoundland, Cuba, ecutive approval. Nevertheless, favorable ac- Mexico, Central or South America, or adjation was not long delayed, for at the special cent islands; aliens under the age of 18 who session called at the beginning of the present are children of citizens of the United States.

administration the measure was quickly Certain other classes of aliens who are enacted, and, with President Harding’s ap- counted against quotas are admissible after proval, became a law on May 19, 1921. This a quota is exhausted. The following are inlaw expired by limitation June 30, 1922, but cluded in this category: Aliens returning by the act of May 11, 1922, its life was ex- from a temporary visit abroad; aliens who tended to June 30, 1924, and some strength- are professional actors, artists, lecturers, sing-

ening amendments were added. ers, ministers of any religious denomination,

The principal provisions of the per centum professors for colleges or seminaries, memlimit act, or the “quota law,” as it is popu- bers of any recognized learned profession, or

larly known, are as follows: aliens employed as domestic servants.

The number of aliens of any nationality So far as possible preference is given to

who may be admitted to the United States in the wives and certain near relatives of citiany fiscal year shall not exceed 3 per cent of zens of the United States, applicants for citithe number of persons of such nationality zenship and honorably discharged soldiers,

who were resident in the United States ac- eligible to citizenship, who served in the

cording to the census of 1910. United States military or naval forces at any Monthly quotas are limited to 20 per cent time between April 6, 1917, and November

of the annual quota. 11, 1918.

For the purposes of the act, “nationality” Transportation companies are liable to a

is determined by country of birth. fine of $200 for each alien brought to a

The law does not apply to the following United States port in excess of the quota and classes of aliens: Government officials; aliens where such fine is imposed the amount paid in transit; aliens visiting the United States as for passage must be returned to the rejected tourists or temporarily for business or pleas- alien.

ure; aliens from countries immigration from The quota limit law is in addition to and which is regulated in accordance with treaties not in substitution for the provisions of the or agreement relating solely to immigration, immigration laws. otherwise China and Japan; aliens from the

423. THE FOURTEEN POINTS 1. Wilson’s Address to Congress January 8, 1918

(Supplement to the Messages and Papers of the Presidents Covering the Second Administration of Woodrow Wilson, p. 8421 ff.) In this famous speech on War Aims and Peace Woodrow Wilson and the World Settlement, Terms, President Wilson laid down fourteen points Vol. I, ch. vi. See also, J. B. Scott, ed. Official as the “only possible” program for world peace. Statements of War Aims and Peace Proposals, These points were subsequently taken as the December 1916 to November 1919.

basis for peace negotiations. The immediate background of this speech was the failure of the Gentlemen of the Congress:

Loo eae ae ad ene A formula; «Tt will be our wish and purpose that toward Germany. The fourteen points were based the processes of peace, when they are begun,

on a report prepared for Mr. Wilson by The shall be absolutely open and that they shall Inquiry—a commission organized by Mr. House Involve and permit henceforth no secret for the purpose of studying Allied and American Understandings of any kind. The day of conpolicy. See, C. Seymour, American Diplomacy quest and aggrandizement is gone by; so is During the World War, p. 277 ff.; R. S. Baker, also the day of secret covenants entered into

318 DocUMENTS OF AMERICAN HIsToRY in the interest of particular governments and ciple that in determining all such questions likely at some unlooked-for moment to upset of sovereignty the interests of the populathe peace of the world. It is this happy fact, tions concerned must have equal weight with now clear to the view of every public man _ the equitable claims of the government whose whose thoughts do not still linger in an age title is to be determined.

that is dead and gone, which makes it pos- VI. The evacuation of all Russian terrisible for every nation whose purposes are tory and such a settlement of all questions consistent with justice and the peace of the affecting Russia as will secure the best and world to avow now or at any other time the _freest codperation of the other nations of the

objects it has in view. world in obtaining for her an unhampered We entered this war because violations of and unembarrassed opportunity for the inderight had occurred which touched us to the pendent determination of her own political quick and made the life of our own people development and national policy and assure impossible unless they were corrected and her of a sincere welcome into the society of the world secured once for all against their free nations under institutions of her own recurrence. What we demand in this war, choosing; and, more than a welcome, assist-

therefore, is nothing peculiar to ourselves. It ance also of every kind that she may need | is that the world be made fit and safe to live and may herself desire. The treatment acin; and particularly that it be made safe for corded Russia by her sister nations in the every peace-loving nation which, like our months to come will be the acid test of their own, wishes to live its own life, determine its good will, of their comprehension of her own. institutions, be assured of justice and needs as distinguished from their own infair dealing by the other peoples of the world terests, and of their intelligent and unselfish as against force and selfish aggression. All sympathy. the peoples of the world are in effect partners VII. Belgium, the whole world will agree, in this interest, and for our own part we see must be evacuated and restored, without any very clearly that unless justice be done to attempt to limit the sovereignty which she others it will not be done to us. The program enjoys in common with all other free nations. of the world’s peace, therefore, is our pro- No other single act will serve as this will gram; and that program, the only possible serve to restore confidence among the nations

program, as we see it, is this: in the laws which they have themselves set

I. Open covenants of peace, openly ar- and determined for the government of their rived at, after which there shall be no private _ relations with one another. Without this heal-

international understandings of any kind but ing act the whole structure and validity of diplomacy shall proceed always frankly and international law is forever impaired.

in the public view. VIII. All French territory should be freed

II. Absolute freedom of navigation upon and the invaded portions restored, and the the seas, outside territorial waters, alike in wrong done to France by Prussia in 1871 in peace and in war, except as the seas may be the matter of Alsace-Lorraine, which has unclosed in whole or in part by international settled the peace of the world for nearly fifty action for the enforcement of international years, should be righted, in order that peace

covenants. may once more be made secure in the interIII. The removal, so far as possible, of all est of all.

economic barriers and the establishment of IX. A readjustment of the frontiers of an equality of trade conditions among all the Italy should be effected along clearly recognations consenting to the peace and associat- nizable lines of nationality.

ing themselves for its maintenance. X. The peoples of Austria-Hungary, whose IV. Adequate guarantees given and taken place among the nations we wish to see safethat national armaments will be reduced to guarded and assured, should be accorded the the lowest point consistent with domestic freest opportunity of autonomous develop-

safety. ment.

V. A free, open-minded, and absolutely im- XI. Rumania, Serbia, and Montenegro partial adjustment of all colonial claims, should be evacuated; occupied territories rebased upon a strict observance of the prin- stored; Serbia accorded free and secure ac-

THE FouRTEEN POINTS 319 cess to the sea; and the relations of the sev- there is nothing in this program that impairs eral Balkan states to one another determined it. We grudge her no achievement or distincby friendly counsel along historically estab- tion of learning or of pacific enterprise such lished lines of allegiance and nationality; and as have made her record very bright and very

international guarantees of the political and enviable. We do not wish to injure her or economic independence and territorial in- to block in any way her legitimate influence tegrity of the several Balkan states should or power. We do not wish to fight her either

be entered into. with arms or with hostile arrangements of XII. The Turkish portions of the present trade if she is willing to associate herself Ottoman Empire should be assured a secure with us and the other peace-loving nations sovereignty, but the other nationalities which of the world in covenants of justice and law are now under Turkish rule should be assured and fair dealing. \Ve wish her only to accept an undoubted security of life and an abso- a place of equality among the peoples of the lutely unmolested opportunity of autono- world,—the new world in which we now live, mous development, and the Dardanelles —instead of a place of mastery. should be permanently opened as a free pas- Neither do we presume to suggest to her sage to the ships and commerce of all nations any alteration or modification of her institu-

under international guarantees. tions. But it is necessary, we must frankly XIII. An independent Polish state should say, and necessary as a preliminary to any be erected which should include the terri- intelligent dealings with her on our part,

tories inhabited by indisputably Polish popu- that we should know whom her spokesmen lations, which should be assured a free and speak for when they speak to us, whether for secure access to the sea, and whose political the Reichstag majority or for the military and economic independence and territorial party and the men whose creed is imperial integrity should be guaranteed by interna- domination.

tional covenant. We have spoken now, surely, in terms too XIV. A general association of nations concrete to admit of any further doubt or

must be formed under specific covenants for question. An evident principle runs through the purpose of affording mutual guarantees the whole program I have outlined. It is the of political independence and territorial in- principle of justice to all peoples and na-

tegrity to great and small states alike. tionalities, and their right to live on equal In regard to these essential rectifications terms of liberty and safety with one another, of wrong and assertions of right we feel our- whether they be strong or weak. Unless this selves to be intimate partners of all the gov- principle be made its foundation no part of

ernments and peoples associated together the structure of international justice can against the Imperialists. We cannot be sepa- stand. The people of the United States could rated in interest or divided in purpose. We act upon no other principle; and to the vin-

stand together until the end. dication of this principle they are ready to

For such arrangements and covenants we devote their lives, their honor, and everyare willing to fight and to continue to fight thing that they possess. The moral climax of until they are achieved; but only because we _ this the culminating and final war for human

wish the right to prevail and desire a just liberty has come, and they are ready to put and stable peace such as can be secured only their own strength, their own highest purby removing the chief provocations to war, pose, their own integrity and devotion to which this program does not remove. We _ the test. have no jealousy of German greatness, and

2. The American Interpretation of the Fourteen Points (Foreign Relations of the United States, 1918, Supplement, Vol. I, p. 405 ff.) This semi-official interpretation of the Fourteen Lippman. “These interpretations,” wrote Colonel

Points was prepared under the supervision of House, “were on the table day after day when

Colonel House by Frank Cobb and Walter we sat in conference. ... Many times they

320 DOCUMENTS OF AMERICAN HIstTorRy asked the meaning of this or that point and I neutral. Clearly, it is the intention of the would read from the accepted interpretation.” proposal that in such a war the rights of neuCUntimate Papers of Colonel House, Vol. IV, trals shall be maintained against the belligD 154.) See C. Seymour, American Diplomacy erents, the rights of both to be clearly and precisely defined in the law of nations.

uring the World War, p. 372 ff. . ; .

1. The purpose is clearly to prohibit trea- 3. The proposal applies only to those naties, sections of treaties of understandings that tions which accept the responsibilities of are secret, such as the [Triple Alliance], etc. membership in the League of Nations. It The phrase “openly arrived at” need not means the destruction of all special commer-

cause difficulty. In fact, the President ex- cial agreements, each putting the trade of plained to the Senate last winter that the every other nation in the League on the same phrase was not meant to exclude confidential basis, the most-favored-nation clause applydiplomatic negotiations involving delicate ing automatically to all members of the matters. The intention is that nothing which League of Nations. Thus a nation could legally occurs in the course of such confidential nego- maintain a tariff or a special railroad rate or tiations shall be binding unless it appears in a port restriction against the whole world, or

the final covenant made public to the world. against all the signatory powers. It could : The matter may perhaps be put this way: maintain any kind of restriction which it chose

it 1s proposed that in future every treaty be against a nation not in the League. But it part of the public law of the world, and that could not discriminate as between its partners every nation assume a certain obligation in in the League. regard to its enforcement. Obviously, nations This clause naturally contemplates fair and cannot assume obligations in matters of which equitable understanding as to the distribution they are ignorant; and therefore any secret of raw materials.

treaty tends to undermine the solidity of the 4. “Domestic safety” clearly implies not whole structure of international covenants only internal policing, but the protection of

which it is proposed to erect. territory against invasion. The accumulation

2. This proposition must be read in con- of armaments above this level would be a

nection with number 14 which proposes a _ violation of the intention of the proposal. league of nations. It refers to navigation un- What guarantees should be given and taken, der the three following conditions: (1) gen- or what are to be the standards of judgment eral peace; (2) a general war, entered into by have never been determined. It will be neces-

the League of Nations for the purpose of sary to adopt the general principle and then enforcing international covenants; (3) lim- institute some kind [of international comited war, involving no breach of international mission of investigation] to prepare detailed

covenants. projects for its execution.

Under “‘(1) General peace” no serious dis- 5. Some fear is expressed in France [and pute exists. There is implied freedom to come England] that this involves reopening of all

and go [on the high seas]. colonial questions. Obviously it is not so inNo serious dispute exists as to the intention tended. It applies clearly [to those] colonial under ‘‘(2) A general war entered into by the claims which have been created by the war.

League of Nations to enforce international That means the German colonies and any covenants.” Obviously such a war is conducted other colonies which may come under inter-

against an outlaw nation and complete non-national consideration as a result of the

intercourse with that nation is intended. war... .

“(3) A limited war, involving no breach of What are the “interests of the populainternational covenants” is the crux of the tions’? That they should not be militarized, whole difficulty. The question is, what are to that exploitation should be conducted on the be the rights of neutral shipping and private principle of the ‘‘open door”, and under the property on the high seas during a war be- _ strictest regulation as to labor conditions, tween a limited number of nations when that profits and taxes, that a sanitary regime be war involves no issue upon which the League maintained, that permanent improvements in of Nations cares to take sides. In other words, the way of roads, etc., be made, that native a war in which the League of Nations remains organization and custom be respected, that the

THE FOURTEEN POINTS 321 protecting authority be stable and experienced construed as forbidding a customs union, a enough to thwart intrigue and corruption, that monetary union, a railroad union, etc., of these

the [protecting] power have adequate re- states. Provision should also be made by sources In money and competent administra- which Great Russia can federate with these

tors to act successfully. states on the same terms. ...

It would seem as if the principle involved The essence of the Russian problem then in this proposition is that a colonial power in the immediate future would seem to be: acts not as owner of its colonies, but as trustee (1) the recognition of provisional govern-

for the natives and for the interests of the ments; (2) assistance extended to and society of nations, that the terms on which through these governments. . . . the colonial administration is conducted are In any case the treaties of Brest-Litovsk a matter of international concern and may and Bucharest must be cancelled as palpably legitimately be the subject of international fraudulent. Provision must be made for the inquiry, and that the peace conference may, withdrawal of all German troops in Russia therefore, write a code of colonial conduct and the peace conference [will] have a clean

binding upon [all] colonial powers. slate on which to write a policy for all the 6. The first question is whether Russian Russian peoples. territory is synonymous with territory belong- 7. The only problem raised here is in the ing to the former Russian Empire. This is word “restored”. Whether restoration is to be clearly not so, because proposition 13 stip- in kind or how the amount of the indemnity ulates an independent Poland, a proposal is to be determined is a matter of detail, not which excludes the territorial reéstablishment of principle. The principle that should be esof the Empire. What is recognized as valid tablished is that in the case of Belgium there for the Poles will certainly have to be recog- _ exists no distinction between “legitimate” and nized for the Finns, the Lithuanians, the Letts, “illegitimate” destruction. The initial act of and perhaps also for the Ukrainians. Since the invasion was illegitimate and therefore all the

formulating of this condition these subject consequences of that act are of the same nationalities have emerged, and there can be character. Among the consequences may be no doubt that they will have to be granted an _ put the war debt of Belgium. The recognition

opportunity of free development. of this principle would constitute ‘‘the healing The problem of these nationalities is com- act”? of which the President speaks.

plicated by two facts: (1) that they have 8. In regard to the restoration of French conflicting claims; (2) that the evacuation territory it might well be argued that the incalled for in the proposal may be followed by _ vasion of northern F rance, being the result of

Bolshevist revolutions in all of them. ... the illegal act as regards Belgium, was in itThis can mean nothing less than the [recog- self illegal. But the case is not perfect. As the nition] by the peace conference of a series of | world stood in 1914, war between France and

[de facto] governments representing Finns, Germany was not in itself a violation of inEsths, Lithuanians, Ukrainians. This primary ternational law, and great insistence should be [act] of recognition should be conditional put upon keeping the Belgian case distinct and upon the calling of national assemblies for symbolic. Thus Belgium might well, as indithe creation of de facto governments, as soon cated above, claim reimbursement not only

as the peace conference has drawn frontiers for destruction but for the cost of carrying for these new states. The frontiers should be on the war. France could not claim payment, drawn so far as possible on ethnic lines, but it would seem, for more than the damage in [every] case the right of unhampered eco- done to her northeastern departments.

nomic [transit] should be reserved. No The status of Alsace-Lorraine was settled dynastic ties with German [or] Austrian or by the official statement issued a few days Romanoff princes should be permitted, and ago. It is to be restored completely to French every inducement should be [given] to en- sovereignty.

courage federal [relations] between these Attention is called to the strong current of new states. Under proposition 3 the economic French opinion which claims “the boundaries sections of the treaty of Brest-Litovsk are ob- of 1914 [1814]” rather than of 1871. The ter-

literated, but this proposition should not be ritory claimed is the valley of the Saar with

322 DOCUMENTS OF AMERICAN HISTORY its coalfields. No claim on grounds of nation- The independence of Slovakia means the ality can be established, but the argument dismemberment of the northwestern counleans on the possibility of taking this territory tries of Hungary.

in lieu of indemnity; it would seem to be a (2) Galicia. Western Galicia is clearly clear violation of the President’s proposal. Polish. Eastern Galicia is in large measure Attention is called also to the fact that no Ukrainian (or Ruthenian) and does not of reference is made to status of Luxemburg. The __ right belong to Poland.

best solution would seem to be a free choice There also are several hundred thousand by the [people of ] Luxemburg themselves. Ukrainians among the north and northeastern 9. This proposal is less than the Italian borders of Hungary and in parts of Bukowina claim; less, of course, than the territory al- (which belonged to Austria). lotted by the treaty of London; less than the (3) German Austria. This territory should arrangement made between the Italian Gov- of right be permitted to join Germany, but

ernment and the Jugo-Slav state. there is strong objection in [France] because In the region of Trent the Italians claim a__ of the increase of [population] involved.

strategic rather than ethnic frontier. It should (4) Jugo-Slavia. It faces the following be noted in this connection that [Italy] and problems: (a) Frontier questions with Italy Germany will become neighbors if German in Istria and the Dalmatian coast; with Rou-

Austria joins the German Empire. And if mania in the Banat. (b) An international Italy obtains the best geographical frontier problem arises out of the refusal of the Croats she will assume sovereignty over a large num- to accept the domination of the Serbs of ber of Germans. This is a violation of prin- Servian Kingdom. (c) A problem of the ciple. But it may be argued that by drawing a Mohammedan Serbs of Bosnia who are said sharp line along the crest of the Alps, Italy’s to be loyal to the Hapsburgs. They constitute security will be enormously enhanced and the a little less than one-third of the population.

necessity of heavy armaments reduced. It (5) Transylvania. Will undoubtedly join might, therefore, be provided that Italy should Roumania, but provision must be made for the

have her claim in the Trentino, but that the protection of the Magyars, Szeklers and Gernorthern part, inhabited by Germans, should mans who constitute a large minority. be completely autonomous and that the pop- (6) Hungary. Now independent and very ulation should not be liable to military service democratic in form, but governed by Magin the Italian Army. Italy could thus occupy — yars whose aim is to prevent the detachment the uninhabited Alpine peaks for military pur- _ of territory of nationalities on the fringe.

poses, but would not govern the cultural life The United States is clearly committed to of the alien population to the south of her the program of national unity and independ-

frontier. ence. It must stipulate, however, for the

The other problems of the frontier are protection of national minorities, for freedom questions between Italy and Jugo-Slavia, of access to the Adriatic and the Black Sea, Italy and the Balkans, Italy and Greece. and it supports a program aiming at a con-

The agreement reached with Jugo-Slavsmay federation of southeastern Europe. well be allowed to stand, although it should be 11. This proposal is also altered by events. insisted for [the protection of] the hinterland Servia will appear as Jugo-Slavia with access that both Trieste and Fiume be free ports. to the Adriatic. Roumania will have acquired This is [essential] to Bohemia, German Aus- the Dobrudja, Bessarabia and _ probably

tria, Hungary, as well as to prosperity of the Transylvania. These two states will have

cities themselves. .. . eleven or twelve million inhabitants and will Italy’s claims in Turkey belong to the prob- _ be far greater and stronger than Bulgaria.

lem of the Turkish Empire. Bulgaria should clearly have her frontier in 10. This proposition no longer holds. In- the southern Dobrudja as it stood before the stead we have [today | the following elements: second Balkan War. She should also have (1) Czecho-Slovakia. Its territories include Thrace up to the Enos-Midia line and perhaps at least a million Germans for whom some _ even to the Midia-Rodosto line.

provision must be made. Macedonia should be allotted after an im-

THE FOURTEEN POINTS 323 partial investigation. The line which might all mandatories in Asia Minor should be be taken as a basis of investigation is the written into the treaty of peace. southern line of the “contested zone” agreed This should contain provisions for minorupon by Serbia and Bulgaria before the first ities and the ‘open door”. The trunk railroad

Balkan War. lines should be internationalized.

Albania could be under a protectorate, no 13. The chief problem is whether Poland 1s doubt of Italy, and its frontiers in the north to obtain territory west of the Vistula, which might be essentially those of the London con- would cut off the Germans of East Prussia

ference. from the Empire, or whether Danzig can be

12. The same difficulty arises here as in the made a free port and the Vistula internationcase of Austria-Hungary concerning the word _ alized.

“autonomous”. On the east, Poland should receive no ter-

It is clear that the Straits and Constanti- ritory in which Lithuanians or Ukrainians nople, while they may remain nominally predominate. Turkish, should be under international con- If Posen and Silesia go to Poland, rigid

trol. This control may be collective or be in protection must be afforded the minorities of the hands of one power as mandatory of the Germans and Jews living there, as well as in

League. other parts of the Polish state.

Anatolia should be reserved for the Turks. The principle on which frontiers will be The coast lands, where Greeks predominate, [delimited] is contained in the President’s should be under special international control, word “indisputably”. This may imply the tak-

perhaps with Greece as mandatory. ing of an impartial census before frontiers are Armenia must be [given] a port on the marked. Mediterranean, and a protecting power estab- 14. The principle of a league of nations as lished. France may claim it, but the Arme- the primary essential of a permanent peace has

nians would prefer Great Britain. been so clearly presented by President Wilson Syria has already been allotted to France by in his speech of September 27, 1918, that no

agreement with Great Britain. further elucidation is required. It is the Great Britain is clearly the best mandatory foundation of the whole diplomatic structure

for Palestine, Mesopotamia and Arabia. of a permanent peace. A general code of guarantees binding upon

3. The Allies Accept the Fourteen Points

, November 5, 1918

(Foreign Relations of the United States, 1918, Supplement, Vol. I, p. 468-9) In October, 1918, the German Government The Allied Governments have given careful opened negotiations with President Wilson look- consideration to the correspondence which has

me to Whe Wie ae pass " ne ect ae passed between the President of the United armistice on this basis as far as the United States States and the Ge rman Government. Subject

to the qualifications which follow they dewas concerned, he could not bind the Allies to clare their willingness to make pea th th any such agreement. The diplomacy of Colonel G 8 peace wi e House and the threat from Wilson of independent overnment of Germany on the terms of action by the United States finally forced the Peace laid down in the President’s address to Allies to agree to accept the Fourteen Points as Congress of J anuary, 1918, and the principles a basis for the Armistice, but with an important Of settlement enunciated in his subsequent reservation on the interpretation of the second addresses. They must point out, however, that point—the freedom of the seas. See C. Seymour, Clause 2, relating to what is usually described American Diplomacy During the World War, as the freedom of the seas, is Open to various chs. vili-x; R. S. Baker, Woodrow Wilson and interpretations, some of which they could not

the World Settlement, Vol. I, ch. x. accept. They must, therefore, reserve to them-

324 DOCUMENTS OF AMERICAN HisTorRy selves complete freedom on this subject when ought to.be allowed to exist as to what this

they enter the peace conference. provision implies. By it they understand that Further, in the conditions of peace laid compensation will be made by Germany for all down in his address to Congress of January damage done to the civilian population of the 8, 1918, the President declared that invaded Allies and their property by the aggression of territories must be restored as well as evac- Germany by land, by sea and from the air. uated and freed, the Allies feel that no doubt

424. RAILWAY ADMINISTRATION ACT

e Gov March 21, 1918

(U.S. Statutes at Large, Vol. XL, p. 451 ff.) Shortly after the outbreak of the war the Rail- main the property of the United States... . roads created a Railroads’ War Board to secure Every such agreement shall also contain more unified administration of the roads; the adequate and appropriate provisions for the resus were cisappomung and in secemne aL maintenance, repair, renewals, and depreciaroads. The Act of March 21, 1917 provided for tion of the property, for the creation of the operation of the roads and for compensation @Y Teserves or reserve funds found necesto the owners. Governmental operation aroused S4ry in connection therewith, and for such considerable criticism on grounds of extravagance, accounting and adjustments of charges and

but on the whole the roads were operated effi payments, both during and at the end of ciently and soundly. For the return of the roads Federal control as may be requisite in order to private ownership and control, see the Trans- that the property of each carrier may be reportation Act of 1920, Doc. No. 438. On govern- turned to it in substantially as good repair ment operation, see F. H. Dixon, Railroads and and in substantially as complete equipment Government, 1910-1921; W. D. Hines, War His- as it was in at the beginning of Federal

tory of American Railroads; R. MacVeagh,

Transportation Act of 1920. control, and also that the United States may,

by deductions from the just compensations

An Act To provide for the operation of or by other proper means and charges, be transportation systems while under Federal reimbursed for the cost of any additions, control, for the just compensation of their repairs, renewals, and betterments to such

owners, and for other purposes. property not justly chargeable to the United BE it enacted . . . That the President, hav- States; in making such accounting and ading In time of war taken over the possession, justments, due consideration shall be given

use, control, and operation (called herein to the amounts expended or reserved by Federal control) of certain railroads and each carrier for maintenance, repairs, resystems of transportation (called herein car- newals, and depreciation during the three riers), is hereby authorized to agree with and years ended June thirtieth, nineteen hundred

to guarantee to any such carrier making and seventeen, to the condition of the operating returns to the Interstate Com- property at the beginning and at the end merce Commission, that during the period of Federal control and to any other pertinent

of such Federal control it shall receive as facts and circumstances. ... just compensation an annual.sum, payable SEC. 5. That no carrier while under

from time to time in reasonable installments, Federal control shall, without the prior apfor each year and pro rata for any fractional proval of the President, declare or pay any

year of such Federal control, not exceeding dividend in excess of its regular rate of a sum equivalent as nearly as may be to its dividends during the three years ended June average annual railway operating income thirtieth, nineteen hundred and seventeen: for the three years ended June thirtieth, nine- Provided, however, That such carriers as

teen hundred and seventeen. have paid no regular dividends or no diviThat any railway operating income accru- dends during said period may, with the prior

ing during the period of Federal control in approval of the President, pay dividends at excess of such just compensation shall re- such rate as the President may determine.

THe EspPp1ioNaAGE AcT OF 1918 325 SEC. 6. That the sum of $500,000,000 is the public interest requires, the President hereby appropriated, out of any moneys in may initiate rates, fares, charges, classificathe Treasury not otherwise appropriated, tions, regulations, and practices by filing the which, together with any funds available same with the Interstate Commerce Comfrom any operating income of said carriers, mission, which said rates, fares, charges, may be used by the President as a revolving classifications, regulations, and practices shall fund for the purpose of paying the expenses not be suspended by the commission pending

of the Federal control, and so far as neces-_ final determination... . sary the amount of just compensation, and SEC. 14. That the Federal control of railto provide terminals, motive power, cars, roads and transportation systems herein and and other necessary equipment, such termi- heretofore provided for shall continue for nals, motive power, cars, and equipment to and during the period of the war and for a be used and accounted for as the President reasonable time thereafter, which shall not may direct and to be disposed of as Congress exceed one year and nine months next fol-

may hereafter by law provide. lowing the date of the proclamation by the

The President may also make or order any President of the exchange of ratifications of carrier to make any additions, betterments, the treaty of peace: Provided, however, That or road extensions, and to provide terminals, the President may, prior to July first, ninemotive power, cars and other equipment teen hundred and eighteen, relinquish control necessary or desirable for war purposes or in of all or any part of any railroad or system the public interest on or in connection with of transportation, further Federal control of the property of any carrier. He may from which the President shall deem not needful said revolving fund advance to such carrier or desirable; and the President may at any

all or any part of the expense of such ad- time during the period of Federal control ditions, betterments, or road extensions, and agree with the owners thereof to relinquish to provide terminals, motive power, cars, and all or any part of any railroad or system of other necessary equipment so ordered and transportation. The President may relinquish constructed by such carrier or by the Presi- all railroads and systems of transportation

dent, such advances to be charged against under the Federal control at any time he such carrier and to bear interest at such shall deem such action needful or desirable. rate and be payable on such terms as may No right to compensation shall accrue to be determined by the President, to the end such owners from and after the date of that the United States may be fully reim- relinquishment for the property so. re-

bursed for any sums so advanced... . linquished. . . .

From said revolving fund the President SEC. 16. That this Act is expressly de-

may expend such an amount as he may _ clared to be emergency legislation enacted to deem necessary or desirable for the utiliza- meet conditions growing out of war; and tion and operation of canals, or for the nothing herein is to be construed as express-

purchase ... and operation of boats... ing or prejudicing the future policy of the and other transportation facilities on the Federal Government concerning the ownerinland, canal, or coastwise waterways. ... ship, control, or regulation of carriers or the SEC. 10. ... That during the period of method or basis of the capitalization thereof. Federal control, whenever in his opinion 425. THE ESPIONAGE ACT May 16, 1918 (U.S. Statutes at Large, Vol. XL, p. 553 ff.) This Act was far more drastic than the act of _ the act, see Schenck, v. U. S., Doc. No. 426 and June 15, 1917, and made the Sedition Act of Abrams v. U. S., Doc. No. 427.

1798 look very mild indeed. Under Attorney- ; ,

General Palmer the Espionage Act was drastically Be it enacted, That section three of the

enforced, and freedom of speech and of the press ‘ct... approved June 15, 1917, be... temporarily disappeared. See, Z. Chafee, Free- | amended so as to read as follows: dom of Speech. For the judicial interpretation of | ‘“‘Sec. 3. Whoever, when the United States is

326 DOCUMENTS OF AMERICAN History at war, shall wilfully make or convey false naval forces of the United States, or the

reports or false statements with intent to flag... or the uniform of the Army or

interfere with the operation or success of the Navy of the United States, or any language

military or naval forces of the United States, intended to bring the form of govern-

or to promote the success of its enemies, or ment... or the Constitution... or the shall wilfully make or convey false reports, military or naval forces... or the flag or false statements, or say or do anything ... of the United States into contempt, except by way of bona fide and not disloyal scorn, contumely, or disrepute . . . or shall

advice to an investor ... with intent to wilfully display the flag of any foreign obstruct the sale by the United States of enemy, or shall wilfully . . . urge, incite, or bonds . . . or the making of loans by or to advocate any curtailment of production in

the United States, or whoever, when the _ this country of any thing or things... United States is at war, shall wilfully cause necessary or essential to the prosecution of

-.. OF incite ... insubordination, dis- the war... and whoever shall wilfully adloyalty, mutiny, or refusal of duty, in the vocate, teach, defend, or suggest the doing military or naval forces of the United States, of any of the acts or things in this section or shall wilfully obstruct .. . the recruiting enumerated and whoever shall by word or

or enlistment service of the United States, act Support or favor the cause of any

and whoever, when the United States is at country with which the United States is at war, shall wilfully utter, print, write, or war or by word or act oppose the cause of publish any disloyal, profane, scurrilous, or the United States therein, shall be punished abusive language about the form of govern- by a fine of not more than $10,000 or imment of the United States, or the Constitu- prisonment for not more than twenty years, tion of the United States, or the military or or both... .

426. SCHENCK v. UNITED STATES

249 U.S. 47 1919

Error to the United States district court for the the distribution of the document set forth. Eastern district of Pennsylvania. This case in- |. They set up the First Amendment to volved the constitutionality of the Espionage Act the Constitution forbidding Congress to make of June 15, 1917, Doc. No. 425. The defendants any law abridging the freedom of speech, or

the Comtation Cone ts emndiets of the pres, and bringing the ease here on the dissenting opinion of Mr. Justice Holmes in that ground have argued some other points the Abrams v. United States, Doc. No. 427. also of which we must dispose.

It is argued that the evidence, if admis-

Hoimes, J. This is an indictment in three sible, was not sufficient to prove that the counts. The first charges a conspiracy to defendant Schenck was concerned in sendviolate the Espionage Act of June 15, ing the documents. According to the testi1917... by causing and attempting to mony Schenck said he was general secretary cause insubordination, &c., in the military of the Socialist party and had charge of the and naval forces of the United States, and Socialist headquarters from which the docuto obstruct the recruiting and enlistment ments were sent. He identified a book found

service of the United States, when the there as the minutes of the Executive ComUnited States was at war with the German mittee of the party. The book showed a Empire, to wit, that the defendants wilfully resolution of August 13, 1917, that 15,000 conspired to have printed and circulated to leaflets should be printed on the other side men who had been called and accepted for of one of them in use, to be mailed to men military service under the Act of May 18, who had passed exemption boards, and for 1917, a document set forth and alleged to distribution. Schenck personally attended to be calculated to cause such insubordination — the printing. On August 20 the general secre-

and obstruction. The count alleges overt acts tary’s report said, ‘Obtained new leaflets in pursuance of the conspiracy, ending in from printer and started work addressing en-

SCHENCK V. UNITED STATES 327 velopes” &c.; and there was a resolve that port and uphold the rights of the people of Comrade Schenck be allowed $125 for send- this country.” Of course the document would

ing leaflets through the mail. He said that not have been sent unless it had been inhe had about fifteen or sixteen thousand tended to have some effect, and we do not printed. There were files of the circular in see what effect it could be expected to have question in the inner office which he said upon persons subject to the draft except to were printed on the other side of the one influence them to obstruct the carrying of it

sided circular and were there for distribu- out. The defendants do not deny that the tion. Other copies were proved to have been jury might find against them on this point.

sent through the mails to drafted men. With- But it is said, suppose that that was the out going into confirmatory details that were tendency of this circular, it is protected by proved, no reasonable man could doubt that the First Amendment to the Constitution. the defendant Schenck was largely instru- ... We admit that in many places and in mental in sending the circulars about. ... ordinary times the defendants in saying all The document in question upon its first that was said in the circular would have been printed side recited the first section of the within their constitutional rights. But the Thirteenth Amendment, said that the idea character of every act depends upon the cirembodied in it was violated by the Con- cumstances in which it is done. The most scription Act and that a conscript is little stringent protection of free speech would not better than a convict. In impassioned lan- protect a man in falsely shouting fire in a guage it intimated that conscription was theatre and causing a panic. It does not even despotism in its worse form and a monstrous’ protect a man from an injunction against wrong against humanity in the interest of uttering words that may have all the effect

Wall Street’s chosen few. It said, “Do not of force. The question in every case is submit to intimidation,’ but in form at whether the words used are used in such least confined itself to peaceful measures circumstances and are of such a nature as to such as a petition for the repeal of the act. create a clear and present danger that they

The other and later printed side of the will bring about the substantive evils that sheet was headed “Assert Your Rights.” It Congress has a right to prevent. It is a stated reasons for alleging that any one vio- question of proximity and degree. When a lated the Constitution when he refused to nation is at war many things that might be recognize “your right to assert your opposi- said in time of peace are such a hindrance to

tion to the draft,” and went on “If you do its effort that their utterance will not be not assert and support your rights, you are endured so long as men fight and that no helping to deny or disparage rights which it Court could regard them as protected by any is the solemn duty of all citizens and resi- constitutional right. It seems to be admitted

dents of the United States to retain.” It that if an actual obstruction of the recruitdescribed the arguments on the other side as__ ing service were proved, liability for words

coming from cunning politicians and a_ that produced that effect might be enforced. mercenary capitalist press, and even silent The statute of 1917 in sec. 4 punishes conconsent to the conscription law as helping to spiracies to obstruct as well as actual obsupport an infamous conspiracy. It denied _ struction. If the act, (speaking, or circulating the power to send our citizens away to for- a paper,) its tendency and the intent with eign shores to shoot up the people of other which it is done are the same, we perceive no lands, and added that words could not ex- ground for saying that success alone warrants press the condemnation such cold-blooded making the act a crime... . ruthlessness deserves, &c., &c., winding up Judgements affirmed. “You must do your share to maintain, sup-

328 DocUMENTS OF AMERICAN History 427. ABRAMS v. UNITED STATES

250 U. S. 616 © 1919

We have included only the dissenting opinion in the Act of May 16, 1918, c. 75, 40 Stat. this case. The position of the Court on the inter- 553. amending part 3 of the earlier Act of pretation of laws limiting freedom of speech can 1917 But to make the conduct criminal that be read in Schenck v. United States, Doc. No. statute requires that it should be “with in. Justice Holmes’s dissent is significant because it tent by such curtailment to cripple or hinder expresses much of his legal philosophy and be- the United States in the prosecution of the cause of its literary quality. For Mr. Justice war.” It seems to me that no such intent is Holmes, see, S. Bent, Mr. Justice Holmes; F. proved. Frankfurter, ed. Mr. Justice Holmes; A. Lief, ed. I am aware of course that the word intent

426, and Gitlow v. New York, Doc. No. 456. Mr. os .

Vhe Dissenting Opinions of Mr. Justice Holmes; as vaguely used in ordinary legal discussion D. Richardson, The Constitutional Doctrines of means no more than knowledge at the time

Justice Holmes. of the act that the consequences said to be HoiMEs, J., dissenting. This indictment is intended will ensue. Even less than that will

found wholly upon the publication of two satisfy the general principle of civil and leaflets which I shall describe in a moment. criminal liability. A man may have to pay The first count charges a conspiracy pending damages, may be sent to prison, at common

the war with Germany to publish abusive law might be hanged, if at the time of his language about the form of government of act he knew facts from which common exthe United States, laying the preparation and perience showed that the consequences would publishing of the first leaflet as overt acts. follow, whether he individually could foresee The second count charges a conspiracy pend- them or not. But, when words are used ing the war to publish language intended to exactly, a deed is not done with intent to bring the form of government into contempt, produce a consequence unless that conselaying the preparation and publishing of the quence is the aim of the deed. It may be

two leaflets as overt acts. The third count obvious, and obvious to the actor, that the alleges a conspiracy to encourage resistance consequence will follaw, and he may be to the United States in the same war and to _ liable for it even if he regrets it, but he does attempt to effectuate the purpose by publish- not do the act with intent to produce it uning the same leaflets. The fourth count lays less the aim to produce it is the proximate a conspiracy to incite curtailment of produc- motive of the specific act, although there tion of things necessary to the prosecution of _ may be some deeper motive behind... ,

the war and to attempt to accomplish it by I do not see how anyone can find the publishing the second leaflet to which I have intent required by the statute in any of the

referred. ... defendants’ words. The second leaflet is the

No argument seems to me necessary to’ only one that affords even a foundation for show that these pronunciamentos in no way the charge, and there, without invoking the attack the form of government of the United hatred of German militarism expressed in

States, or that they do not support either the former one, it is evident from the beof the first two counts. What little I have to ginning to the end that the only object of say about the third count may be postponed _ the paper is to help Russia and _ stop until I have considered the fourth. With re- American intervention there against the gard to that it seems too plain to be denied popular government—not to impede the that the suggestion to workers in the am- United States in the war that it was carry-—

munition factories that they are producing ing on. To say that ‘two phrases taken bullets to murder their dearest, and the literally might import a suggestion of confurther advocacy of a general strike, both duct that would have interference with the | in the second leaflet, do urge curtailment of war as an indirect and probably undesired production of things necessary to the prose- effect seems to me by no means enough to

cution of the war within the meaning of show an attempt to produce that effect. ...

Tur ARCHANGEL EXPEDITION 329 In this case sentences of twenty years im- power of the thought to get itself accepted

prisonment have been imposed for the in the competition of the market, and that publishing of two leaflets that I believe the truth is the only ground upon which their defendants had as much right to publish wishes safely can be carried out. That at as the Government has to publish the Con- any rate is the theory of our Constitution. stitution of the United States now vainly It is an experiment, as all life is an experiinvoked by them. Even if I am technically ment. Every year if not every day we have wrong and enough can be squeezed from to wager our salvation upon some prophecy these poor and puny anonymities to turn the based upon imperfect knowledge. While that color of legal litmus paper; I will add, even experiment is part of our system I think that

if what I think the necessary intent were we should be eternally vigilant against atshown; the most nominal punishment seems tempts to check the expression of opinions to me all that possibly could be inflicted, that we loathe and believe to be fraught with

unless the defendants are to be made to death, unless they so imminently threaten suffer not for what the indictment alleges immediate interference with the lawful and but for the creed that they avow—a creed pressing purposes of the law that an im-

that I believe to be the creed of ignorance mediate check is required to save the counand immaturity when honestly held, as I try. I wholly disagree with the argument of see no reason to doubt that it was held the Government that the First Amendment here, but which, although made the subject left the common law as to seditious libel in of examination at the trial, no one has a_ force. History seems to me against the noright even to consider in dealing with the tion. I had conceived that the United States

charges before the Court. through many years had shown its repentence

Persecution for the expression of opinions for the Sedition Act of 1798, by repaying seems to me perfectly logical. If you have fines that it imposed. Only the emergency no doubt of your premises or your power that makes it immediately dangerous to and want a certain result with all your heart leave the correction of evil counsels to time you naturally express your wishes in law warrants making any exception to the sweepand sweep away all opposition. To allow ing command, “Congress shall make no opposition by speech seems to indicate that law... abridging the freedom of speech.” you think the speech impotent, as when a Of course I am speaking only of expressions man says that he has squared the circle, or of opinion and exhortations, which were all that you do not care whole-heartedly for that were uttered here, but I regret that I the result, or that you doubt either your cannot put into more impressive words my power or your premises. But when men have belief that in their conviction upon this inrealized that time has upset many fighting dictment the defendants were deprived of faiths, they may come to believe even more their rights under the Constitution of the than they believe the very foundations of | United States.

their own conduct that the ultimate good Mr. Justice Brandeis concurs with the desired is better reached by free trade in foregoing opinion.

ideas—that the best test of truth is the

428. THE ARCHANGEL EXPEDITION The Aide-Mémoire of July 17, 1918 (Foreign Relations of the United States, 1918, Russia, Vol. II, p. 287 ff.) This aide-mémoire states the terms upon which battalions of infantry and three companies of the United States would participate with the engineers were sent to Archangel to protect supAllied Powers in intervention in Russia. Though plies, and a small American force co-operated : the mémoire states that “military intervention with the Japanese at Vladivostock. These forces ... would be of no advantage” and that the were withdrawn in 1919 and 1920. See, J. R. United States “cannot take part in such inter- Moore, ed. American Expedition in North Rusvention’, it pledges the Government to do just sia; F. L. Schuman, American Policy Toward that. In accordance with this agreement, three Russia since 1917, chs. v, vii; R. Albertson,

330 DOCUMENTS OF AMERICAN HISTORY Fighting Without a War; W.S. Graves, America’s. mand in the matter of establishing a small Szberian Adventure, 1918-1920; C. K. Cummins force at Murmansk, to guard the military

and W. W. Pettit, Russian-American Relations, stores at Kola, and to make it safe for 1913-1920: Documents and Papers. Russian forces to come together in organized The Secretary of State to the Allied bodies in the north. But it owes it to frank

Ambassadors Aide-Mémoire counsel to say that it can go no further

than these modest and experimental plans. . . . [tis the clear and fixed judgment of the It is not in a position, and has no expectaGovernment of the United States, arrived tion of being in a position, to take part in at after repeated and very searching recon- organized intervention in adequate force siderations of the whole situation in Russia, from either Vladivostok or Murmansk and

that military intervention there would add Archangel. It feels that it ought to add, to the present sad confusion in Russia rather also, that it will feel at liberty to use the than cure it, injure her rather than help her, few troops it can spare only for the purposes

and that it would be of no advantage in here stated and shall feel obliged to withthe prosecution of our main design, to win draw those forces, in order to add them to the war against Germany. It can not, there- the forces at the western front, if the plans

fore, take part in such intervention or in whose execution it is now intended that

sanction it in principle. Military interven- they should cooperate should develop into tion would, in its judgment, even suppos- others, inconsistent with the policy to which ing it to be efficacious in its immediate the Government of the United States feels avowed object of delivering an attack upon constrained to restrict itself. Germany from the east, be merely a method At the same time the Government of the of making use of Russia, not a method of United States wishes to say with the utmost serving her. Her people could not profit by cordiality and good will that none of the

it, if they profited by it at all, in time to conclusions here stated is meant to wear save them from their present distresses, and the least color of criticism of what the their substance would be used to maintain other governments associated against foreign armies, not to reconstitute their own. Germany may think it wise to undertake. Military action is admissible in Russia, as It wishes in no way to embarrass their the Government of the United States sees choices of policy. All that is intended here is the circumstances, only to help the Czecho- a perfectly frank and definite statement of Slovaks consolidate their forces and get into the policy which the United States feels successful cooperation with their Slavic kins- obliged to adopt for herself and in the use

men and to steady any efforts at self- of her own military forces. The Government government or self-defense in which the of the United States does not wish it to be Russians themselves may be willing to ac- understood that in so restricting its own cept assistance. Whether from Vladivostok activities it is seeking, even by implication, or from Murmansk and Archangel, the only to set limits to the action or to define the legitimate object for which American or Al- policies of its associates.

lied troops can be employed, it submits, is It hopes to carry out the plans for safeto guard military stores which may subse- guarding the rear of the Czecho-Slovaks quently be needed by Russian forces and to operating from Vladivostok in a way that will

render such aid as may be acceptable to the place it and keep it in close cooperation Russians in the organization of their own with a small military force like its own from self-defense. For helping the Czecho-Slovaks Japan, and if necessary from the other Allies,

there is immediate necessity and sufficient and that will assure it of the cordial accord justification. Recent developments have _ of all the Allied powers; and it proposes made it evident that that is in the interest to ask all associated in this course of action of what the Russian people themselves de- to unite in assuring the people of Russia in

sire, and the Government of the United the most public and solemn manner that States is glad to contribute the small force none of the governments uniting in action at its disposal for that purpose. It yields, either in Siberia or in northern Russia conalso, to the judgment of the Supreme Com-_ templates any interference of any kind with

PRESIDENT WILSON’S APPEAL TO THE VOTERS 331 the political sovereignty of Russia, any in- perts, labor advisers, Red Cross representa-

tervention in her internal affairs, or any tives, and agents of the Young Men's

impairment of her territorial integrity either Christian Association accustomed to organiz-

now or hereafter, but that each of the associ- ing the best methods of spreading useful ated powers has the single object of afford- information and rendering educational help ing such aid as shall be acceptable, and only of a modest sort, in order in some systematic such aid as shall be acceptable, to the Rus- manner to relieve the immediate economic sian people in their endeavor to regain con- necessities of the people there in every way trol of their own affairs, their own territory, for which opportunity may open. The exe-

and their own destiny. cution of this plan will follow and will not

It is the hope and purpose of the Govern- be permitted to embarrass the military as-

ment of the United States to take advantage sistance rendered in the rear of the of the earliest opportunity to send to Siberia westward-moving forces of the Czechoa commission of merchants, agricultural ex- Slovaks.

429. PRESIDENT WILSON’S APPEAL TO THE VOTERS TO RETURN A DEMOCRATIC CONGRESS October 24, 1918 (Associated Press Dispatch) With the end of the World War rapidly ap- judgment without cavil. But my power to proaching, President Wilson was preparing to go administer the great trust assigned to me to Europe to secure a just peace. His appeal for by the Constitution would be seriously impolitical support met with popular disapproval. paired should your judgment be adverse, and The of November 5 resulted in Repub- I woe must,frankly tell you so because so many licanelections majorities in both Houses of Congress. Wilson’s partial failure at Paris may be attributed critical issues depend upon your verdict, to the fact that European diplomats knew that No scruple or taste must in grim times like he had been repudiated by his own people. Just these be allowed to stand in the way of before Wilson sailed for Europe, ex-President speaking the plain truth. Roosevelt issued a statement that “Our allics and I have no thought of suggesting that any our enemies and Mr. Wilson himself should all political party is paramount in matters of understand that Mr. Wilson has no authority patriotism. I feel too deeply the sacrifices whatever to speak for the American people at which have been made in this war by all our this time. His leadership has just been emphati- citizens, irrespective of party affiliations, to

cally repudiated them. Mr. Wilson andsuch hisanharb ‘dea.only I lythat tl the i Fourteen Points and by his four supplementary arbor ea, 1hmean

points and his five complementary points and difficulties and delicacies of our present task all his utterances every which way have ceased are of a sort that makes it imperatively to have any shadow of right to be accepted as necessary that the nation should give its unexpressive of the will of the American people.” divided support to the Government under a unified leadership, and that a Republican

My Fellow Countrymen: Congress would divide the leadership.

The Congressional elections are at hand. The leaders of the minority in the present They occur in the most critical period our Congress have unquestionably been pro-war, country has ever faced or is likely to face but they have been anti-administration. At in our time. If you have approved of my almost every turn since we entered the war leadership and wish me to continue to be they have sought to take the choice of policy your unembarrassed spokesman in affairs at and the conduct of the war out of my hands

home and abroad, I earnestly beg that you and put it under the control of instru-

will express yourselves unmistakably to that mentalities of their own choosing. effect by returning a Democratic majority to This is no time either for divided counsels

both the Senate and the House of Repre- or for divided leadership. Unity of com-

sentatives. , mand is as necessary now in civil action as I am your servant and will accept your it is upon the field of battle. If the control

332 DOCUMENTS OF AMERICAN HISTORY of the House and the Senate should be States had chosen to support their President taken away from the party now in power an by electing to the Congress a majority con-

opposing majority could assume control of trolled by those who are not in fact in legislation and oblige all action to be taken sympathy with the attitude and action of

amid contest and obstruction. the Administration.

The return of a Republican majority to I need not tell you, my fellow countrymen, either house of the Congress would, more- that I am asking your support not for my

over, be interpreted on the other side of own sake or for the sake of a political the water as a repudiation of my leadership. party, but for the sake of the nation itself Spokesmen of the Republican party are urg- in order that its inward duty of purpose may

ing you to elect a Republican Congress in be evident to all the world. In ordinary order to back up and support the President, times I would not feel at liberty to make but, even if they should in this impose upon such an appeal to you. In ordinary times some credulous voters on this side of the divided counsels can be endured without water, they would impose on no one on the permanent hurt to the country. But these other side. It is well understood there as are not ordinary times. well as here that Republican leaders desire If in these critical days it is your wish to not so much to support the President as to sustain me with undivided minds, I beg that

control him. you will say so in a way which it will not

The peoples of the allied countries with be possible to misunderstand, either here at whom we are associated against Germany home or among our associates on the other are quite familiar with the significance of _ side of the sea. I submit my difficulties and elections. They would find it very difficult my hopes to you.

to believe that the voters of the United WOODROW WILSON. 430. THE CHILD LABOR ACT February 24, 1919 (U.S. Statutes at Large, Vol. XL, p. 1138)

The decision of the Supreme Court in Hammer the taxable year; or (b) any mill, cannery, v. Dagenhart defeated the effort of Congress to workshop, factory, or manufacturing esprohibit child labor through the exercise of its tablishment situated in the United States in control over interstate commerce. In 1919 a sec- which children under the age of fourteen tion of the general taxation bill assessed a tax years have been employed or permitted to

upon the products of child labor. For the fate of .

this section, see Doc. No. 431. In 1924 Congress work, or children between the ages of fourpassed an amendment to the Constitution giving teen and sixteen have been employed or Congress the right to regulate child labor: fifteen permitted to work more than eight hours years later 28 states had ratified this amendment, in any day or more than six days in any but the prospects for obtaining a sufficient num- week, or after the hour of seven o’clock post ber of ratifications were dim. See, R. Fuller, Child meridian, or before the hour of six o’clock

Labor and the Constitution. ante meridian, during any portion of the taxable year, shall pay for each taxable year,

... Sec. 1200. Every person (other than in addition to all other taxes imposed by a bona fide boys’ or girls’ canning club law, an excise tax equivalent to 10 per recognized by the Agricultural Department centum of the entire net profits received or of a State and of the United States) operat- accrued for such year from the sale or dising (a) any mine or quarry situated in the _ position of the product of such mine, quarry, United States in which children under the mill, cannery, workshop, factory, or manuage of sixteen years have been employed or facturing establishment... . permitted to work during any portion of

BAILEY V. DREXEL FURNITURE COMPANY 333 431. BAILEY v. DREXEL FURNITURE COMPANY 259 U. 8. 20 1922

Error to the U. S. district court for the western children for a year, or employs only one for district of North Carolina. This case involved aq day. Moreover, if he does not know the the constitutionality of the Child Labor tax law child is within the named age limit, he is

of February 24, 1919, Doc. No. 430. not to pay; that is to say, it is only where he knowingly departs from the prescribed

Tart, C. J... . The law is attacked on course that payment is to be exacted... . the ground that it is a regulation of the In the light of these features of the act, employment of child labor in the States— a court must be blind not to see that the an exclusively state function under the so-called tax is imposed to stop the employFederal Constitution and within the reserva- ment of children within the age limits pretions of the Tenth Amendment. It is de- scribed. Its prohibitory and regulatory effended on the ground that it is a mere fect and purpose are palpable. All others can

excise tax levied by the Congress of the see and understand this. How can we United States under its broad power of taxa- properly shut our minds to it?

tion conferred by §8, Article I, of the It is the high duty and function of this

federal Constitution. We must construe the court in cases regularly brought to its bar law and interpret the intent and meaning to decline to recognize or enforce seeming of Congress from the language of the act. laws of Congress, dealing with subjects not The words are to be given their ordinary entrusted to Congress but left or committed meaning unless the context shows that they by the supreme law of the land to the conare differently used. Does this law impose a_ trol of the States. We can not avoid the tax with only that incidental restraint and duty even though it requires us to refuse to regulation which a tax must inevitably in- give effect to legislation designed to promote volve? Or does it regulate by the use of the the highest good. The good sought in unso-called tax as a penalty? If a tax, it is constitutional legislation is an insidious feaclearly an excise. If it were an excise on a_ ture because it leads citizens and legislators

commodity or other thing of value we of good purpose to promote it without

might not be permitted under previous deci- thought of the serious breach it will make in

sions.of this court to infer solely from its the ark of our covenant or the harm which heavy burden that the act intends a prohibi- will come from breaking down recognized tion instead of a tax. But this act is more. standards. In the maintenance of local self It provides a heavy exaction for a departure government, on the one hand, and the nafrom a detailed and specified course of con- tional power on the other, our country has duct in business. That course of business is been able to endure and prosper for near a that employers shall employ in mines and century and a half.

quarries, children of an age greater than Out of a proper respect for the acts of a sixteen years; in mills and factories, children co-ordinate branch of the Government, this

of an age greater than fourteen years, and court has gone far to sustain taxing acts as , shall prevent children of less than sixteen such, even though there has been ground for years in mills and factories from working suspecting from the weight of the tax it was more than eight hours a day or six days in intended to destroy its subject. But in the the week. If an employer departs from this act before us the presumption of validity ' prescribed course of business, he is to pay cannot prevail, because the proof of the conto the Government one-tenth of his entire trary is found on the very face of its pronet income in the business for a full year. visions. Grant the validity of this law, and The amount is not to be proportioned in any all that Congress would need to do, heredegree to the frequency of the departures, after, in seeking to take over to its control

but is to be paid by the employer in full any one of the great number of subjects measure whether he employs five hundred of public interests, jurisdiction of which the

334 DOCUMENTS OF AMERICAN HISTORY States have never parted with, and which and completely wipe out the sovereignty of are reserved to them by the Tenth Amend- the State... . ment, would be to enact a detailed measure For the reasons given, we must hold the of complete regulation of the subject and Child Labor Tax Law invalid and the judgenforce it by a so-called tax upon departures ment of the district court is

from it. To give such magic to the word Affirmed. “tax” would be to break down all constitu- CLARKE, J., dissents. tional limitation of the powers of Congress

432. THE VOLSTEAD ACT October 28, 1919 (U.S. Statutes at Large, Vol. XXXXTI, p. 305 ff.) Ratification of the Eighteenth Amendment was SEC. 2. The Commissioner of Internal proclaimed January 29, 1919: the amendment Revenue, his assistants, agents, and inspecwent into effect January 16, 1920. The National tors, shall investigate and report violations Prohibition Act, known popularly as the Volstead of the War Prohibition Act to the United

Act alter its sponsor, Volstead of Minnesota, tates attorney for the district in which

wis passed over the veto of President Wilson. On 7

the constitutionality of the Act, see Doc. No. 433. committed, who shall be charged with the The literature on Prohibition is enormous, but “uty of prosecuting, subject to the direction most of it is of a controversial character. Sec E. of the Attorney General, the offenders as in H. Cherrington, Evolution of Prohibition in the the case of other offenses against laws of United States; P. Odegard, Pressure Politics; C. the United States; and such Commissioner Merz, The Dry Decade; H. Feldman, Prohibition, of Internal Revenue, his assistants, agents, Its Economic and Industrial Aspects; I. Fisher, and inspectors may swear out warrants be-

Prohibition at Tits Worst; F. Franklin, The fore United States commissioners or other A.B.C. of Prohibition; The Federal Council of Gre cers or courts authorized to issue the Churches of Christ in America, The Prohibition . Situation; Annals of the American Academy of same for the apprehension of such offenders, Pol. and Social Science, Vol. CIX. The famous and may, subject to the control of the said Wickersham Report is in the U.S. 71st Congress, United States attorney, conduct the prose-

3d Sess., House Doc. No. 722. cution at the committing trial for the purpose of having the offenders held for the

Be it Enacted. ... That the short title of action of a grand jury....

as Act shall be the ‘National Prohibition TITLE IL.

wv PROHIBITION OF INTOXICATING

TITLE I. BEVERAGES.

TO PROVIDE FOR THE ENFORCE- SEC. 3. No person shall on or after the MENT OF WAR PROHIBITION. date when the eighteenth amendment to the The term “War Prohibition Act” used in Constitution of the United States goes into this Act shall mean the provisions of any effect, manufacture, sell, barter, transport, Act or Acts prohibiting the sale and manu- import, export, deliver, furnish or possess facture of intoxicating liquors until the con- any intoxicating liquor except as authorized

clusion of the present war and thereafter in this Act, and all the provisions of this until the termination of demobilization, the Act shall be liberally construed to the end

date of which shall be determined and pro- that the use of intoxicating liquor as a , claimed by the President of the United beverage may be prevented. States. The words ‘“‘beer, wine, or other in- Liquor for nonbeverage purposes and wine

toxicating malt or vinous liquors” in the for sacramental purposes may be manufacWar Prohibition Act shall be hereafter con- tured, purchased, sold, bartered, transported, strued to mean any such beverages which imported, exported, delivered, furnished and

contain one-half of 1 per centum or more possessed, but only as herein provided, and ,

of alcohol by volume: ... the commissioner may, upon application, 1Is-

THE VOLSTEAD ACT 335 sue permits therefor: Provided, That noth- rites, except section 6 (save as the same ing in this Act shall prohibit the purchase requires a permit to purchase) and section 10 and sale of warehouse receipts covering dis- hereof, and the provisions of this Act pre-

tilled spirits on deposit in Government scribing penalties for the violation of either bonded warehouses, and no special tax lia- of said sections. No person to whom a bility shall attach to the business of purchas- permit may be issued to manufacture, transing and selling such warehouse reccipts. ... port, import, or sell wines for sacramental SEC. 6. No one shall manufacture, sell, purposes or like religious rites shall sell, barpurchase, transport, or prescribe any liquor ter, exchange, or furnish any such to any without first obtaining a permit from the person not a rabbi, minister of the gospel, commissioner so to do, except that a person priest, or an officer duly authorized for the may, without a permit, purchase and use purpose by any church or congregation, nor liquor for medicinal purposes when pre- to any such except upon an application duly scribed by a physician as herein provided, subscribed by him, which application, au-

and except that any person who in the thenticated as regulations may prescribe, opinion of the commissioner is conducting shall be filed and preserved by the seller. a bona fide hospital or sanatorium engaged The head of any conference or diocese or in the treatment of persons suffering from other ecclesiastical jurisdiction may designate alcoholism, may, under such rules, regula- any rabbi, minister, or priest to supervise the tions, and conditions as the commissioner manufacture of wine to be used for the shall prescribe, purchase and use, in accord- purposes and rites in this section mentioned, ance with the methods in use in such institu- and the person so designated may, in the tion, liquor, to be administered to the discretion of the commissioner, be granted a patients of such institution under the direc- permit to supervise such manufacture. tion of a duly qualified physician employed SEC. 7. No one but a physician holding

by such institution. a permit to prescribe liquor shall issue any All permits to manufacture, prescribe, sell, prescription for liquor. And no_ physician

or transport liquor, may be issued for one shall prescribe Hquor unless after careful year, and shall expire on the 31st day of physical examination of the person for whose December next succeeding the issuance use such prescription is sought, or if such

thereof: ... Permits to purchase liquor examination is found impracticable, then

shall specify the quantity and kind to be upon the best information obtainable, he in purchased and the purpose for which it is to good faith believes that the use of such be used. No permit shall be issued to any liquor as a medicine by such person is necesperson who within one year prior to the = sary and will afford relicf to him from some application therefor or issuance thereof shall known ailment. Not more than a pint of have violated the terms of any permit issued spiritous liquor to be taken internally shall under this Title or any law of the United be prescribed for use by the same person States or of any State regulating traffic within any period of ten days and no prein liquor. No permit shall be issued to any- — scription shall be filled more than once. Any

one to sell liquor at retail, unless the sale pharmacist filling a prescription shall at the is to be made through a pharmacist desig- time indorse upon it over his own signature nated in the permit and duly licensed under the word “canceled,” together with the date the laws of his State to compound and dis- when the liquor was delivered, and then pense medicine prescribed by a duly licensed make the same a part of the record that he physician. No one shall be given a permit is required to keep as hercin provided. . . . to prescribe liquor unless he is a physician SEC. 18. It shall be unlawful to advertise, duly licensed to practice medicine and ac- manufacture, sell, or possess for sale any tively engaged in the practice of such pro- utensil, contrivance, machine, preparation,

fession. ... compound, tablet, substance, formula direc-

Nothing in this title shall be held to apply tion, recipe advertised, designed, or intended to the manufacture, sale, transportation, im- for use in the unlawful manufacture of inportation, possession, or distribution of wine toxicating liquor... . for sacramental purposes, or like religious SEC. 21. Any room, house, building, boat,

336 DOCUMENTS OF AMERICAN HISTORY vehicle, structure, or place where intoxicat- Any person violating the provisions of any ing liquor is manufactured, sold, kept, or permit, or who makes any false record, report, bartered in violation of this title, and all or affidavit required by this title, or violates intoxicating liquor and property kept and any of the provisions of this title, for which used in maintaining the same, is hereby de- offense a special penalty is not prescribed, clared to be a common nuisance, and any shall be fined for a first offense not more person who maintains such a common _ than $500; for a second offense not less than nuisance shall be guilty of a misdemeanor $100 nor more than $1,000, or be imprisoned and upon conviction thereof shall be fined not more than ninety days; for any subsenot more than $1,000 or be imprisoned for quent offense he shall be fined not less than

not more than one year, or both... . $500 and be imprisoned not less than three SEC. 25. It shall be unlawful to have or months nor more than two years... . possess any liquor or property designed for SEC. 33. After February 1, 1920, the posthe manufacture of liquor intended for use _ session of liquors by any person not legally in violating this title or which has been so permitted under this title to possess liquor

used, and no property rights shall exist in shall be prima facie evidence that such

any such liquor or property. . . . No search liquor is kept for the purpose of being sold, warrant shall issue to search any private bartered, exchanged, given away, furnished, dwelling occupied as such unless it is being or otherwise disposed of in violation of the used for the unlawful sale of intoxicating Provisions of this title. . . . But it shall not liquor, or unless it is in part used for some be unlawful to possess liquors in one’s pribusiness purposes such as a store, shop, vate dwelling while the same is occupied and

saloon, restaurant, hotel, or boarding used by him as his dwelling only and such

house... . liquor need not be reported, provided such

SEC. 29. Any person who manufactures liquors are for use only for the personal or sells liquor in violation of this title shall consumption of the owner thereof and his for a first offense be fined not more than family residing in such dwelling and of his $1,000, or imprisoned not exceeding six bona fide guests when entertained by him months, and for a second or subsequent of- therein; and the burden of proof shall be fense shall be fined not less than $200 nor upon the possessor in any action concerning more than $2,000 and be imprisoned not less the same to prove that such liquor was lawthan one month nor more than five years. fully acquired, possessed, and used... . 433. NATIONAL PROHIBITION CASES 253 U. 8. 350 1920

These were seven cases involving the constitu- arguments have been attentively considered, tionality of the Volstead Act of 1919 and the with the result that we reach and announce validity of the Eighteenth Amendment. This is the following conclusions on the questions the only case in the history of the court where = jjvolyed.

the court stated its opinion o {a question ' 1. The adoption by both houses of Conconstitutional law without giving its reason- gress, each by a two-thirds vote, of a joint

ing. resolution proposing an amendment to the Van DEVANTER, J., announced the conclu- Constitution sufficiently shows that the pro-

sions of the court. posal was deemed necessary by all who Power to amend the Constitution is re- voted for it. An express declaration that they

served by Article V, which reads: ... The regarded it as necessary is not essential. text of the Eighteenth Amendment, proposed None of the resolutions whereby prior by Congress in 1917 and proclaimed as rati- amendments were proposed contained such fied in 1919, 40 Stat. at L. 1050, 1941, is asa declaration.

follows: ... 2. The two-thirds vote in each house

The cases have been elaborately argued which is required in proposing an amendat the bar and in printed briefs; and the ment is a vote of two-thirds of the members

PREAMBLE OF THE I.W.W. 337 present—assuming the presence of a quorum do they mean that the power to enforce is and not a vote of two thirds of the entire divided between Congress and the several membership, present and absent. Missouri States along the lines which separate or dis-

Pacific Ry. Co. v. Kansas, 248 U.S. 276. tinguish foreign and interstate commerce 3. The referendum provisions of state con- from intrastate affairs.

stitutions and statutes cannot be applied, 9. The power confided to Congress by consistently with the Constitution of the that section, while not exclusive, is terriUnited States, in the ratification or rejection torially co-extensive with the prohibition of of amendments to it. Hawke v. Smith, 253 the first section, embraces manufacture and

U. S. 221. other intrastate transactions as well as 1m4. The prohibition of the manufacture, portation, exportation and interstate traffic,

sale, transportation, importation and exporta- and is in no wise dependent on or affected

tion of intoxicating liquors for beverage pur- by action or inaction on the part of the poses, as embodied in the Eighteenth Amend- several States or any of them.

ment, is within the power to amend reserved 10. That power may be exerted against

by Article V of the Constitution. the disposal for beverage purposes of liquors

5. That amendment, by lawful proposal manufactured before the amendment beand ratification, has become a part of the came effective just as it may be against subConstitution, and must be respected and sequent manufacture for those purposes. In given effect the same as other provisions of either case it is a constitutional mandate

that instrument. or prohibition that is being enforced.

6. The first section of the amendment— 11. While recognizing that there are limits the one embodying the prohibition—is beyond which Congress cannot go in treat-

operative throughout the entire territorial ing beverages as within its power of enforcelimits of the United States, binds all Jegisla- ment, we think these limits are not trantive bodies, courts, public officers and indi- scended by the provision of the Volstead viduals within those limits, and of its own Act (Title II, § 1), wherein liquors containforce invalidates every legislative act— ing as much as one-half of one per cent. of whether by Congress, by a state legislature, alcohol by volume and fit for use for beveror by a territorial assembly—which author- age purposes are treated as within that izes or sanctions what the section prohibits. power. Jacob Ruppert v. Caffey, 251 U.S. 7. The second section of the amendment— 264.

the one declaring ‘““‘The Congress and the Wuite, C. J., concurring. I profoundly several States shall have concurrent power to regret that in a case of this magnitude, afenforce this article by appropriate legisla- fecting as it does an amendment to the Contion”—does not enable Congress or the _ stitution dealing with the powers and duties

several States to defeat or to thwart the of the national and state governments, and prohibition, but only to enforce it by ap- intimately concerning the welfare of the

propriate means. whole people, the court has deemed it proper 8. The words “concurrent power” in that to state only ultimate conclusions without an section do not mean joint power, or require exposition of the reasoning by which they that legislation thereunder by Congress, to have been reached. .. . be effective, shall be approved or sanctioned McKenna, J., and CLarKE, J., delivered by the several States or any of them; nor dissenting opinions.

434. PREAMBLE OF THE INDUSTRIAL WORKERS OF THE WORLD Chicago, 1919

(P. F. Brissenden, The I. W. W., A Study of American Syndicalism, p. 351) The Industrial Workers of the World was or- Its membership, extremely fluctuating and reganized in 1905 and lasted about twenty years. cruited chiefly among the casual laborers of the It represented the extreme left wing of the | western lumber camps, mines and harvest fields, American labor movement, advocated the gen- never exceeded sixty thousand. See, P. F. Briseral strike, and practised sabotage and violence. senden, The I]. W. W.; J.S. Gambs, The Decline

338 DocUMENTS OF AMERICAN HISTORY of the I. W. W.; W. D. Haywood, Bill Hay- ploying class to mislead the workers into wood’s Book; D. L. Saposs, Left Wing Union- the belief that the working class have inter-

ism; J. Oneal, American Communism. ests in common with their employers. These conditions can be changed and the The working class and the employing class interest of the working class upheld only by have nothing in common. There can be no _ an organization formed in such a way that

peace so long as hunger and want are found all its members in any one industry, or in among millions of working people and the all industries if necessary, cease work whenfew, who make up the employing class, have ever a strike or lockout is on in any depart-

all the good things of life. ment thereof, thus making an injury to one Between these two classes a struggle must an injury to all.

go on until the workers of the world or- Instead of the conservative motto, “A ganize as a class, take possession of the fair day’s wage for a fair day’s work,” we earth and the machinery of production and must inscribe on our banner the revolu-

abolish the wage system. tionary watchword, ‘‘Abolition of the wage

We find that the centering of the manage- system.” It is the historic mission of the ment of industries into fewer and fewer hands working class to do away with capitalism. makes the trade unions unable to cope with the The army of production must be organized

ever growing power of the employing class. not only for the everyday struggle with The trade unions foster a state of affairs which capitalists, but also to carry on production allows one set of workers to be pitted against when capitalism shall have been overthrown. another set of workers in the same industry, By organizing industrially we are forming thereby helping defeat one another in wage the structure of the new society within the wars. Moreover the trade unions aid the em- _ shell of the old.

435. PRESIDENT WILSON’S EXPOSITION OF THE LEAGUE OF NATIONS TO THE SENATE COMMITTEE ON FOREIGN RELATIONS August 19, 1919

: (U.S. 66th Congress,: Ist. Session, Sen. Doc. No. 76) In July, 1919, the Treaty of Versailles and the way of ratification of the treaty except Covenant of the League of Nations were certain doubts with regard to the meaning formally transmitted to the Senate. In order to” and implication of certain articles of the allay strong Senatorial opposition to ratifica- Covenant of the League of Nations; and I tion, Wilson invited the members of the Senate must frankly say that I am unable to underCommittee on Foreign Relations to discuss with him their objections to the Covenant of the stand why such doubts should be enterLeague. The most irreconcilable of Wilson’s op- tained. You will recall that when I had the ponents, Senator Lodge of Massachusetts, was pleasure of a conference with your comchairman of the Foreign Affairs Committee, and mittee and with the committee of the House Wilson’s appeal was without apparent effect. See, of Representatives on Foreign Affairs at the H. C. Lodge, The Senate and the League of Na- White House in March last the questions tions; W. E. Dodd, Woodrow Wilson; J. C. now most frequently asked about the League Malin, The United States After the World War, o¢ Nations were all canvassed with a view to

chs. H-lv. their immediate clarification. The Covenant MR. CHAIRMAN: of the League was then in its first draft and

I have taken the liberty of writing out a subject to revision. It was pointed out that little statement in the hope that it might no express recognition was given to the faciliate discussion by speaking directly on Monroe Doctrine; that it was not expressly some points that I know have been points provided that the League should have no of controversy and upon which I thought an authority to act or to express a judgment on

expression of opinion would not be un- matters of domestic policy; that the right

welcome... . to withdraw from the League was not exNothing, I am led to believe, stands in the pressly recognized; and that the constitu-

WiLson’s ExPosITION OF LEAGUE OF NATIONS 339 tional right of the Congress to determine all press authority to do so. No enumeration of questions of peace and war was not suffi- domestic questions was undertaken because ciently safeguarded. On my return to Paris to undertake it, even by sample, would have all these matters were taken up again by the involved the danger of seeming to exclude Commission on the League of Nations and those not mentioned. every suggestion of the United States was The right of any sovereign State to with-

accepted. draw had been taken for granted, but no ob-

The views of the United States with re- jection was made to making it explicit. Ingard to the questions I have mentioned had, deed, so soon as the views expressed at the in fact, already been accepted by the com- White House conference were laid before mission and there was supposed to be noth- the commission it was at once conceded that

ing inconsistent with them in the draft of it was best not to leave the answer to so the Covenant first adopted—the draft which important a question to inference. No prowas the subject of our discussion in March posal was made to set up any tribunal to —but no objection was made to saying ex- pass judgment upon the question whether a plicitly in the text what all had supposed to withdrawing nation had in fact fulfilled “all be implicit in it. There was absolutely no its international obligations and all its oblidoubt as to the meaning of any one of the gations under the covenant.” It was recogresulting provisions of the Covenant in the nized that that question must be left to be minds of those who participated in drafting resolved by the conscience of the Nation them, and I respectfully submit that there proposing to withdraw; and I must say that is nothing vague or doubtful in their word- it did not seem to me worth while to pro-

ing. pose that the article be made more explicit,

The Monroe Doctrine is expressly men- because I knew that the United States would tioned as an understanding which is in no never itself propose to withdraw from the way to be impaired or interfered with by League if its conscience was not entirely anything contained in the covenant and the’ clear as to the fulfillment of all its interexpression “regional understandings like the national obligations. It has never failed to Monroe Doctrine” was used, not because fulfill them and never will. any one of the conferees thought there was Article 10 is in no respect of doubtful any comparable agreement anywhere else in meaning when read in the light of the coveexistence or in contemplation, but only be- nant as a whole. The council of the League cause it was thought best to avoid the ap- can only ‘advise upon” the means by which pearance of dealing in such a document with _ the obligations of that great article are to be

the policy of a single nation. Absolutely given effect to. Unless the United States is

nothing is concealed in the phrase. a party to the policy or action in question, With regard to domestic questions Article her own affirmative vote in the council is 16 of the Covenant expressly provides that, necessary before any advice can be given, for

if in case of any dispute arising between a unanimous vote of the council is required. members of the League the matter involved If she is a party, the trouble is hers anyhow. is claimed by one of the parties “and is And the unanimous vote of the council is found by the council to arise out of a matter only advice in any case. Each Government which by international law is solely within is free to reject it if it pleases. Nothing could the domestic jurisdiction of that party, the have been made more clear to the conference council shall so report, and shall make no than the right of our Congress under our recommendation as to its settlement.” The Constitution to exercise its independent United States was by no means the only judgment in all matters of peace and war. Government interested in the explicit adop- No attempt was made to question or limit tion of this provision, and there is no doubt _ that right.

in the mind of any authoritative student of The United States will, indeed, undertake international law that such matters as im- under Article 10 to “respect and preserve as migration, tariffs, and naturalization are in- against external aggression the territorial incontestably domestic questions with which tegrity and existing political independence of no international body could deal without ex- all members of the League,” and that en-

340 DOCUMENTS OF AMERICAN HISTORY gagement constitutes a very grave and solemn frankly say that I could only with the great-

moral obligation. But it is a moral, not a est reluctance approach that Assembly for legal, obligation, and leaves our Congress permission to read the treaty as we underabsolutely free to put its own interpretation stand it and as those who framed it quite cer-

upon it in all cases that call for action. It is tainly understood it. If the United States binding in conscience only, not in law. were to qualify the document in any way,

Article 10 seems to me to constitute the moreover, I am confident from what I know very backbone of the whole covenant. With- of the many conferences and debates which out it the League would be ‘hardly more than accompanied the formulation of the treaty

an influential debating society. that our example would immediately be fol-

It has several times been suggested, in lowed in many quarters, in some instances

public debate and in private conference, that with very serious reservations, and that the

interpretations of the sense in which the meaning and operative force of the treaty United States accepts the engagements of the would presently be clouded from one end of covenant should be embodied in the instru- its clauses to the other. ment of ratification. There can be no reason- Pardon me, Mr. Chairman, if I have been

able objection to such interpretations accom- entirely unreserved and plain-spoken in panying the act of ratification provided they speaking of the great matters we all have so do not form a part of the formal ratification much at heart. If excuse is needed, I trust itself. Most of the interpretations which have _ that the critical situation of affairs may serve

been suggested to me embody what seems to as my justification. The issues that mani-

me the plain meaning of the instrument it- festly hang upon the conclusions of the self. But if such interpretations should con- Senate with regard to peace and upon the stitute a part of the formal resolution of time of its action are so grave and so clearly ratification, long delays would be the in- insusceptible of being thrust on one side or evitable consequence, tnasmuch as all the postponed that I have felt it necessary in the many Governments concerned would have to _ public interest to make this urgent plea, and accept, in effect, the language of the Senate to make it as simply and as unreservedly as as the language of the treaty before ratifica- _ possible. tion would be complete. The assent of the I thought that the simplest way, Mr. ChairGerman Assembly at Weimar would have to man, to cover the points that I knew to be

be obtained, among the rest, and I must points of interest.

436. THE DEFEAT OF THE LEAGUE OF NATIONS Resolution of Ratification of Treaty of Peace with Germany and the League of Nations March 19, 1920 (Congresstonal Record, Vol. LIX, p. 4599) Wilson called Congress into special session for with reservations, came March 19. It resulted consideration of the Treaty with Germany, May _ in 49 for ratification and: 35 against ratification,

19, 1919. An unofficial copy of the treaty was and the treaty thus lacking the necessary tworead to the Senate June 9, but the treaty was thirds vote was defeated. Subsequent efforts not officially before the Senate until July 10; to make peace by resolution were defeated in then debate on the Treaty and the League was 1920 and successful the following year. See Doc. under way. After a vigorous and at times em- No. 442. Separate treaties concluding peace with bittered debate, the treaty, both with and with- Germany, Austria and Hungary were ratified out reservations, was rejected November 19, October 18, 1921. See, H. C. Lodge, The Senate 1919. Efforts to arrive at a compromise between and the League of Nations; D. F. Fleming, The the moderate reservationist Republicans and the United States and the League of Nations, 1918moderate Democrats were unavailing. The Treaty 1920; C. P. Howland, ed. Survey of American was brought up for reconsideration again on Foreign Relations, 1928, Sec. III; W. S. Holt,

February 11, but again with reservations dic- Treaties Defeated by the Senate, ch. x; J. C.

tated largely by Senator Lodge and unacceptable Malin, The United States After the World War,

to the President. The final vote on the Treaty, chs. i-iv; A. Nevins, Henry White, ch. xxiii; |

THE DEFEAT OF THE LEAGUE OF NATIONS 341 S. F. Bemis, ed. American Secretaries of State, of the league or not, under the provisions of

Vol. X, p. 47 ff. article 10, or to employ the military or naval forces of the United States, under any article

The PRESIDENT pro tempore. Upon of the treaty for any purpose, unless in any agreeing to the resolution of ratification the particular case the Congress, which, under yeas are 49 and the nays are 35. Not having the Constitution, has the sole power to dereceived the affirmative votes of two-thirds clare war or authorize the employment of the of the Senators present and voting, the reso- military or naval forces of the United States, lution is not agreed to, and the Senate does shall, in the exercise of full liberty of action, not advise and consent to the ratification of | by act or joint resolution so provide.

the treaty of peace with Germany. 3. No mandate shall be accepted by the

The resolution of ratification voted upon United States under article 22, part 1, or

and rejected is as follows: any other provision of the treaty of peace

, ; ; with Germany, except by action of the Con-

Resolution of ratification. gress of the United States.

Resolved (two-thirds of the Senators pres- 4. The United States reserves to itself exent concurring therein), That the Senate ad- clusively the right to decide what questions vise and consent to the ratification of the are within its domestic jurisdiction and detreaty of peace with Germany concluded at clares that all domestic and political quesVersailles on the 28th day of June, 1919, sub- tions relating wholly or in part to its internal ject to the following reservations and under- affairs, including immigration, labor, coaststandings, which are hereby made a part and wise traffic, the tariff, commerce, the supprescondition of this resolution of ratification, sion of traffic in women and children and in which ratification is not to take effect or bind opium and other dangerous drugs, and all the United States until the said reservations other domestic questions, are solely within and understandings adopted by the Senate the jurisdiction of the United States and are have been accepted as a part and a condition not under this treaty to be submitted in any of this resolution of ratification by the allied way either to arbitration or to the considera‘and associated powers and a failure on the tion of the council or of the assembly of the part of the allied and associated powers to League of Nations, or any agency thereof, make objection to said reservations and_ or to the decision or recommendation of any understandings prior to the deposit of ratif- other power.

cation by the United States shall be taken as 5. The United States will not submit to a full and final acceptance of such reserva- arbitration or to inquiry by the assembly or tions and understandings by said powers: by the council of the League of Nations, pro1. The United States so understands and vided for in said treaty of peace, any quesconstrues article 1 that in case of notice of tions which in the judgment of the United withdrawal from the League of Nations, as States depend upon or relate to its longprovided in said article, the United States established policy, commonly known as: the shall be the sole judge as to whether all its Monroe doctrine; said doctrine is to be interinternational obligations and all its obliga- preted by the United States alone and is tions under the said covenant have been ful- hereby declared to be wholly outside the filled, and notice of withdrawal by the United jurisdiction of said League of Nations and States may be given by a concurrent resolu- entirely unaffected by any provision contion of the Congress of the United States. tained in the said treaty of peace with Ger-

2. The United States assumes no obliga~- many. | |

tion to preserve the territorial integrity or 6. The United States withholds its assent political independence of any other country to articles 156, 157, and 158, and reserves by the employment of its military or naval full liberty of action with respect to any conforces, its resources, or any form of economic _troversy which may arise under said articles.

discrimination, or to interfere in any way in 7. No person is or shall be authorized to controversies between nations, including all represent the United States, nor shall any controversies relating to territorial integrity citizen of the United States be eligible, as a or political independence, whether members member of any body or agency established

342 DOCUMENTS OF AMERICAN HISTORY or authorized by said treaty of peace with Germany shall, as against citizens of the Germany, except pursuant to an act of the United States, be taken to mean any confirCongress of the United States providing for mation, ratification, or approval of any act his appointment and defining his powers and _ otherwise illegal or in contravention of the

duties. rights of citizens of the United States. 8. The United States understands that the 13. The United States withholds its as-

reparation commission will regulate or inter- sent to Part XIII (articles 387 to 427, infere with exports from the United States to clusive) unless Congress by act or joint resoGermany, or from Germany to the United lution shall hereafter make provision for States, only when the United States by act representation in the organization established or joint resolution of Congress approves such _ by said Part XIII, and in such event the par-

regulation or interference. ticipation of the United States will be gov9. The United States shall not be obligated erned and conditioned by the provisions of to contribute to any expenses of the League such act or joint resolution.

of Nations, or of the secretariat, or of any 14. Until Part I, being the covenant of the commission, or committee, or conference, or League of Nations, shall be so amended as to other agency, organized under the League of | provide that the United States shall be enNations or under the treaty or for the pur- titled to cast a number of votes equal to that pose of carrying out the treaty provisions, which any member of the league and its selfunless and until an appropriation of funds governing dominions, colonies, or parts of available for such expenses shall have been empire, in the aggregate shall be entitled to made by the Congress of the United States: cast, the United States assumes no obligation Provided, That the foregoing limitation shall to be bound, except in cases where Congress not apply to the United States’ proportionate has previously given its consent, by any elecshare of the expense of the office force and _ tion, decision, report, or finding of the coun-

salary of the secretary general. cil or assembly in which any member of the 10. No plan for the limitation of arma- league and its self-governing dominions,

ments proposed by the council of the League colonies, or parts of empire, in the aggregate of Nations under the provisions of article 8 have cast more than one vote. shall be held as binding the United States un- The United States assumes no obligation til the same shall have been accepted by Con- to be bound by any decision, report, or find-

gress, and the United States reserves the ing of the council or assembly arising out of right to increase its armament without the any dispute between the United States and consent of the council whenever the United any member of the league if such member, States is threatened with invasion or engaged or any self-governing dominion, colony, em-

in war. pire, or part of empire united with it politi-

11. The United States reserves the right to cally has voted. permit, in its discretion, the nationals of a 15. In consenting to the ratification of the covenant-breaking State, as defined in article treaty with Germany the United States ad16 of the covenant of the League of Nations, heres to the principle of self-determination residing within the United States or in and to the resolution of sympathy with the countries other than such covenant-breaking aspirations of the Irish people for a governState, to continue their commercial, financial, ment of their own choice adopted by the and personal relations with the nationals of Senate June 6, 1919, and declares that when

the United States. such government is attained by Ireland, a

12. Nothing in articles 296, 297, or in any consummation it is hoped is at hand, it should of the annexes thereto or in any other article, promptly be admitted as a member of the section, or annex of the treaty of peace with League of Nations.

Missour!I v. HOLLAND 343 437. MISSOURI v. HOLLAND 252 U. S. 416 1920

Appeal from the United States district court for the treaty out. 39 Stat. 1702. The above the Western District of Missouri. This case in- mentioned Act of July 3, 1918, entitled an volved the constitutionality of the Migratory act to give effect to the convention, proBird Treaty Act of July 3, 1918, which sought to hibited the killing, capturing or selling any enforce certain provisions of a convention be- of the migratory birds included in the terms tween the United States and Canada. The im- ¢ the treaty except as permitted | oulaportant question raised was whether Congress 0 C treaty except as permuted DY PERU

could, in pursuance of the provisions of a tions compatible with those terms, to be

treaty, enact legislation otherwise beyond its made by the Secretary of Agriculture. Regupowers. The opinion of the Court in this case lations were proclaimed on July 31, and is one of the most far-reaching assertions of October 25, 1918. It is unnecessary to go national power in our constitutional history. into any details, because, as we have said, the question raised is the general one whether

Homes, J. This is a bill in equity brought the treaty and statute are void as an interby the State of Missouri to prevent a game ference with the rights reserved to the States.

warden of the United Slates from attempt- To answer this question it is not cnough ing to enforce the Migratory Bird Treaty to refer to the Tenth Amendment, reserving

Act of July 3, 1918, and the regulations made the powers not delegated to the United States, by the Secretary of Agriculture in pursuance because by Article II, §2, the power to make

of the same. The ground of the bill is that treaties is delegated expressly, and by Arthe statute is an unconstitutional interfer- ticle VI treaties made under the authority of ence with the rights reserved to the States the United States, along with the Constituby the Tenth Amendment, and that the acts tion and laws of the United States made in of the defendant done and threatened under pursuance thereof, are declared the supreme that authority invade the sovereign right of law of the land. If the treaty is valid there the State and contravene its will manifested can be no dispute about the validity of the in statutes. The State also alleges a pecuniary statute under Article I, §8, as a necessary interest, as owner of the wild birds within its and proper means to execute the powers of borders and otherwise, admitted by the gov- the Government. The language of the Constiernment to be sufficient, but it is enough that tution as to the supremacy of treaties being the bill is a reasonable and proper means to general, the question before us is narrowed assert the alleged quasi sovereign rights of to an inquiry into the ground upon which the a State. A motion to dismiss was sustained present supposed exception is placed.

by the district court on the ground that the It is said that a treaty cannot be valid if act of Congress is constitutional. 258 Fed. it infringes the Constitution, that there are

Rep. 479. The State appeals. limits, therefore, to the treaty-making power, On December 8, 1916, a treaty between and that one such limit is that what an act

the United States and Great Britain was pro- of Congress could not do unaided, in deroga-

claimed by the President. It recited that tion of the powers reserved to the States, a many species of birds in their annual migra- treaty cannot do. An earlier act of Congress tions traversed certain parts of the United that attempted by itself and not in pursuance States and of Canada, that they were of great of a treaty to regulate the killing of migravalue as a source of food and in destroying tory birds within the States had been held insects injurious to vegetation, but were in bad in the District Court. United States v.

danger of extermination through lack of Shauver, 214 Fed. Rep. 154; United States adequate protection. It therefore provided v. McCullagh, 221 Fed. Rep. 288. Those defor specified closed seasons and protection in cisions were supported by arguments that mi-

other forms, and agreed that the two powers gratory birds were owned by the States in would take or propose to their law-making their sovereign capacity for the benefit of bodies the necessary measures for carrying their people, and that under cases like Geer

344 DOCUMENTS OF AMERICAN HISTORY v. Connecticut, 161 U. S. 519, this control ence within their jurisdiction of birds that was one that Congress had no power to dis- yesterday had not arrived, tomorrow may be place. The same argument is supposed to ap- in another State and in a week a thousand

ply now with equal force. miles away. If we are to be accurate we can-

Whether the two cases cited were decided not put the case of the State upon higher rightly or not they cannot be accepted as a ground than that the treaty deals with createst of the treaty power. Acts of Congress are tures that for the moment are within the the supreme law of the land only when made _ state borders, that it must be carried out by

in pursuance of the Constitution, while officers of the United States within the same treaties are declared to be so when made territory, and that but for the treaty the under the authority of the United States. It State would be free to regulate this subject is open to question whether the authority of itself. the United States means more than the formal As most of the laws of the United States acts prescribed to make the convention. We are carried out within the States and as many

do not mean to imply that there are no quali- of them deal with matters which in the fications to the treaty-making power; but — silence of such laws the State might regulate, they must be ascertained in a different way. such general grounds are not enough to supIt is obvious that there may be matters of | port Missouri’s claim. Valid treaties of course

the sharpest exigency for the national well ‘are as binding within the territorial limits being that an act of Congress could not deal of the States as they are elsewhere through-

with but that a treaty followed by such an out the dominion of the United States.” act could, and it is not lightly to be assumed Baldwin v. Franks, 120 U. S. 678. No doubt that, in matters requiring national action, “a the great body of private relations usually power which must belong to and somewhere fall within the control of the State, but a reside in every civilized government” is not treaty may override its power. We do not to be found. Andrews v. Andrews, 188 U.S. have to invoke the later developments of 14. What was said in that case with regard constitutional law for this proposition; it was to the powers of the States applies. with equal recognized as early as Hopkirk v. Bell, 3 force to the powers of the nation in cases Cranch, 454, with regard to statutes of limiwhere the States individually are incompe- tation, and even earlier, as to confiscation,

tent to act. We are not yet discussing the in Ware v. Hylton, 3 Dall. 199. ... Further particular case before us but only are con- illustration seems unnecessary, and it only re-

sidering the validity of the test proposed. mains to consider the application of

.. . The treaty in question does not contra- established rules to the present case. vene any prohibitory words to be found in Here a national interest of very nearly the

the Constitution. The only question is first magnitude is involved. It can be prowhether it is forbidden by some invisible tected only by national action in concert with radiation from the general terms of the Tenth that of another power. The subject-matter is Amendment. We must consider what this only transitorily within the State and has no country has become in deciding what that permanent habitat therein. But for the treaty

amendment has reserved. and the statute there soon might be no birds

The State as we have intimated founds its for any powers to deal with. We see nothing claim of exclusive authority upon an asser- in the Constitution that compels the govern-

tion of title to migratory birds, an assertion ment to sit by while a food supply is cut that is embodied in statute. No doubt it is true off and the protectors of our forests and our

that as between a State and its inhabitants crops are destroyed. It is not sufficient to the State may regulate the killing and sale of rely upon the States. The reliance is vain, such birds, but it does not follow that its and were it otherwise, the question is whether authority is exclusive of paramount powers. the United States is forbidden to act. We To put the claim of the State upon title is to are of opinion that the treaty and statute lean upon a slender reed. Wild birds are not must be upheld.

in the possession of anyone; and possession Decree affirmed. |

is the beginning of ownership. The whole Justices VAN DEVANTER and PITNEy disfoundation of the State’s rights is the pres- sented.

Toe TRANSPORTATION AcT OF 1920 345 438. THE TRANSPORTATION ACT OF 1920 February 28, 1920 (U.S. Statutes at Large, Vol. XLI, p. 456 ff.) This act, sometimes known as the Esch-Cummins the guaranty period as a whole shall not be

| Act, terminated the war-time period of govern- Jess than one-half the amount named in such ment operation of the railroads and provided contract as annual compensation, . . . for the return of the roads to private owner-

mp and operation care reeuiations TITLE II. The most interesting feature ofnee: the Lransporta-

tion Act of 1920 was the so-called “recapture” DISPUTES BETWEEN, CARRIERS clause which provided for the setting aside of a AND THEIR EMPLOYEES AND

reserve fund from railroad earnings over a SUBORDINATE OFFICIALS

“fair return.” See A. R. Ellingwood and W. SEC. 301. It shall be the duty of all carCoombs, 1 he Government and Railroad riers and their officers, employees, and agents, Transportation; W. M. Splawn, Government ble effort to avoid Ownership and Operation of Railroads; R. Mac- to exert every reasonable enor 0 ave Veagh, The Transportation Act of 1920; F. H. any interruption to the operation of any carDixon, Railroads and Government; W.D. Hines, "er growing out of any dispute between the

War History of American Railroads. carrier and the employees or subordinate

officials thereof. All such disputes shall be

TITLE I. considered and, if possible, decided in conTERMINATION OF FEDERAL ference between representatives designated CONTROL and authorized so to confer by the carriers, SEC. 200. (a) Federal control shall ter- or the employees or subordinate officials minate at 12.01 A.m., March 1, 1920; and the thereof, directly interested in the dispute. If President shall then relinquish possession and any dispute is not decided in such conference, control of all railroads and systems of trans- it shall be referred by the parties thereto to portation then under Federal control and the board which under the provisions of this

cease the use and operation thereof. .. . title is authorized to hear and decide such SEC. 202. The President shall, as soon as__ dispute.

practicable after the termination of Federal SEC. 302. Railroad Boards of Labor Adcontrol, adjust, settle, liquidate, and wind up justment may be established by agreement all matters, including compensation, and all between any carrier, .. . or the carriers as questions and disputes of whatsoever nature, a whole, and any employees or subordinate arising out of or incident to Federal con- officials of carriers, or organization or group

trol... . of organizations thereof. SEC. 208. (a) All rates, fares, and charges, SEC. 303. Each such Adjustment Board

. . . which on February 29, 1920, are in ef- shall, (1) upon the application of the chief fect on the lines of carriers subject to the executive of any carrier or organization of Interstate Commerce Act, shall continue in employees or subordinate officials whose force and effect until thereafter changed by members are directly interested in the disState or Federal authority, respectively, or pute, (2) upon the written petition signed by pursuant to authority of law; but prior to not less than 100 unorganized employees or September 1, 1920, no such rate, fare, or subordinate officials directly interested in the charge shall be reduced, . . . unless such re- dispute, (3) upon the Adjustment Board’s duction or change is approved by the Com- own motion, or (4) upon the request of the

mission. ... Labor Board whenever such board is of the

SEC. 209.... opinion that the dispute is likely substantially (c) The United States hereby guaran- to interrupt commerce, receive for hearing,

tees— and as soon as practicable and with due dili(1) With respect to any carrier with which gence decide, any dispute involving only a contract ... has been made... that the grievances, rules, or working conditions, not railway operating income of such carrier for decided as provided in section 301, between

346 DOCUMENTS OF AMERICAN HIstToRY the carrier and its employees or subordinate hearing, and as soon as practicable and with

officials. . . . due diligence decide, all disputes with respect SEC. 304. There is hereby established a to the wages or salaries of employees or subboard to be known as the “Railroad Labor ordinate officials of carriers, not decided as Board” and to be composed of nine members __ provided in section 301... .

as follows: (c) A decision by the Labor Board under (1) Three members constituting the labor the provisions of paragraphs (a) or (b) of group, representing the employees and subor- this section shall require the concurrence dinate officials of the carriers, to be appointed _— therein of at least 5 of the 9 members of the

by the President, by and with the advice and Labor Board: Provided, That in case of any consent of the Senate, from not less than six decision under paragraph (b), at least one of nominees whose nominations shall be made the representatives of the public shall concur and offered by such employees in such man-__in such decision. . . .

ner as the Commission shall by regulation (d) ... In determining the justness and

prescribe; reasonableness of . . . wages and salaries or (2) Three members, constituting the man- working conditions the board shall, so far as agement group, representing the carriers, to applicable, take into consideration among be appointed by the President, by and with other relevant circumstances:

the advice and consent of the Senate, from (1) The scale of wages paid for similar not less than six nominees whose nominations kinds of work in other industries;

shall be made and offered by the carriers in (2) The relation between wages and the such manner as the Commission shall by cost of living;

regulation prescribe; and (3) The hazards of the employment; (3) Three members, constituting the pub- (4) The training and skill required; lic group, representing the public, to be ap- (5) The degree of responsibility;

pointed directly by the President, by and (6) The character and regularity of emwith the advice and consent of the Sen- ployment; and

ate... . (7) Inequalities of increases in wages or SEC. 306. (a) Any member of the Labor of treatment, the result of previous wage

Board who during his term of office is an ac- orders or adjustments.

tive member or in the employ of or holds any SEC. 407... office in any organization of employees or (4) The Commission shall as soon as pracsubordinate officials, or any carrier, or owns ticable prepare and adopt a plan for the con-

any stock or bond thereof, or is pecuniarily solidation of the railway properties of the interested therein, shall at once become in- continental United States into a limited numeligible for further membership upon the _ ber of systems. In the division of such railLabor Board; but no such member is required ways into such systems under such plan, to relinquish honorary membership in, or his competition shall be preserved as fully as rights in any insurance or pension or other possible and wherever practicable the existbenefit fund maintained by, any organization ing routes and channels of trade and comof employees or subordinate officials or by merce shall be maintained... .

a carrier. (6) It shall be lawful for two or more

SEC. 307. (a) The Labor Board shall carriers by railroad, subject to this Act, to hear, and .. . decide, any dispute involving consolidate their properties “or any part

grievances, rules, or working conditions, in thereof, into one corporation for the ownerrespect to which any Adjustment Board certi- ship, management, and operation | of the prop-

fies to the Labor Board that in its opinion erties theretofore in separate ownership,

the Adjustment Board has failed or will fail management, and operation, under the folto reach a decision within a reasonable time, lowing conditions: or in respect to which the Labor Board de- (a) The proposed consolidation must be termines that any Adjustment Board has so in harmony with and in furtherance of the failed or is not using due diligence in its con- complete plan of consolidation mentioned in

sideration thereof... . paragraph (5) and must be approved by the (b) The Labor Board shall receive for Commission; .. .

R. R. CoMMISSION oF WISCONSIN Vv. C., B., & Q. R. R. 347 (8) The carriers affected by any order adequate transportation: Provided, That durmade under the foregoing provisions of this ing the two years beginning March 1, 1920, section and any corporation organized to effect the Commission shall take as such fair rea consolidation approved and authorized in turn a sum equal to 5% per centum of such such order shall be, and they are hereby, re- aggregate value to make provision in whole lieved from the operation of the “antitrust or in part for improvements, betterments, or laws,” as designated in section 1 of the Act en- equipment, which, according to the accounttitled “An Act to supplement existing laws ing system prescribed by the Commission, are against unlawful restraints and monopolies, chargeable to capital account... . and for other purposes,” approved October 15, (5) Inasmuch as it is impossible .. . to 1914, and of all other restraints or prohibitions establish uniform rates upon competitive by law, State or Federal, in so far as may be _ traffic which will adequately sustain all the necessary to enable them to do anything carriers which are engaged in such traffic and authorized or required by any order made which are indispensable to the communities under and pursuant to the foregoing provi- to which they render the service of transpor-

sions of this section.... | tation, without enabling some of such car-

SEC. 422. ... riers to receive a net railway operating in(2) In the exercise of its power to pre- come substantially and unreasonably in

scribe just and reasonable rates the Commis- excess of a fair return upon the value of sion shall initiate, modify, establish or adjust their railway property held for and used in such rates so that carriers as a whole... the service of transportation, it is hereby dewill, under honest, efficient and economical clared that any carrier which receives such management and reasonable expenditures for an income so in excess of a fair return, shall

maintenance of wa, structures and equip- hold such part of the excess, as hereinafter ment, earn an aggregate annual net railway prescribed, as trustee for, and shall pay it to, operating income equal, as nearly as may be, the United States.

to a fair return upon the aggregate value of (6) If, under the provisions of this secthe railway property of such carriers held tion, any carrier receives for any year a net for and used in the service of transporta- railway operating income in excess of 6 per

tion... . centum of the value of the railway property (3) The Commission shall from time to held for and used by it in the service of

time determine and make public what per- transportation, one-half of such excess shall centage of such aggregate property value be placed in a reserve fund established and constitutes a fair return thereon, and such maintained by such carrier, and the remain-

percentage shall be uniform for all rate ing one-half thereof shall, within the first groups or territories which may be desig- four months following the close of the period nated by the Commission. In making such for which such computation is made, be redetermination it shall give due consideration, coverable by and paid to the Commission for among other things, to the transportation the purpose of establishing and maintaining needs of the country and the necessity ... a general railroad contingent fund as hereinof enlarging such facilities in order to pro- after described... . vide the people of the United States with

439. RAILROAD COMMISSION OF WISCONSIN v. CHICAGO, BURLINGTON, & QUINCY RAILROAD COMPANY 257 U. S. 563 1922

Appeal from the District Court for Eastern Dis- Commission, acting under authority of the trict of Wisconsin. Decree to enjoin state rail- Transportation Act of 1920, ordered an increase road commission from interfering with mainte- of twenty per cent in passenger rates on rail-

nance of rates fixed by the Interstate Com- roads in the group which embraced the Wismerce Commission. The Interstate Commerce consin carriers. This order conflicted with a

348 DOCUMENTS OF AMERICAN HisTorRy state statute of February 28, 1920, fixing a traffic will contribute will be proportionately

maximum rate of 2 cents a mile for intrastate Jess. .

passenger transportation. The Interstate Com- It is objected here, as it was in the Shrevemerce Commission consequently ordered an in- port Case, that orders of the Commission crease in Intrastate rates to bring them into which raise the intrastate rates to a level of

conformity with charged over interstate ... transportation. the those interstate structure violate the specific proviso of the original Interstate Commerce

Tart, C. J. The Commission’s order, in- Act... that the Commission is not to reguterference with which was enjoined by the late traffic wholly within a state. To this the district court, effects the removal of the un- same answer must be made as was made in just discrimination found to exist against the Shreveport Case, that such orders as to persons in interstate commerce, and against intrastate traffic are merely incidental to the interstate commerce, by fixing a minimum regulation of interstate commerce, and necesfor intrastate passenger fares in Wisconsin at sary to its efficiency. Effective control of the

3.6 cents per mile... . one must embrace some control over the We have two questions to decide. other, in view of the blending of both in ac-

First, Do the intrastate passenger fares tual operation. The same rails and the same work undue prejudice against persons in in- cars carry both. The same men conduct terstate commerce, such as to justify a hori- them. Commerce is a unit and does not re-

zontal increase of them all? gard state lines, and while, under the Consti-

Second, Are these intrastate fares an un- tution, interstate and intrastate commerce due discrimination against interstate com- are ordinarily subject to regulation by difmerce as a whole which it is the duty of the ferent sovereignties, yet when they are so

Commission to remover... mingled together that the supreme authority,

The order in this case . . . is much wider _ the nation, cannot exercise complete effective than the orders made in the proceedings fol- control over interstate commerce without inlowing the Shreveport and Illinois C. R. Co. cidental regulation of intrastate commerce, Cases. There, as here, the report of the Com- — such incidental regulation is not an invasion mission showed discrimination against per- of state authority or a violation of the pro-

sons and localities at border points and the viso... . orders were extended to include all rates or Congress in its control of its interstate fares from all points in the state to border commerce system, is seeking in the Trans-

points. But this order is not so restricted. It portation Act to make the system adequate includes fares between all interior points, al- to the needs of the country by securing for it though neither may be near the border, and a reasonably compensatory return for all the the fares between them may not work a dis- work it does. The states are seeking to use crimination against interstate travelers at all. that same system for intrastate traffic. That Nothing in the precedents cited justifies an entails large duties and expenditures on the order affecting all rates of a general descrip- interstate commerce which may burden it tion when it 1s clear that this would include unless compensation is received for the intramany rates not within the proper class or state business reasonably proportionate to

reason of the order... . that for the interstate business. Congress, as

Intrastate rates and the income from them the dominant controller of interstate commust play a most important part in maintain- merce, may, therefore, restrain undue limitaing an adequate national railway system. tions of the earning power of the interstate Twenty per cent of the gross freight receipts commerce system in doing state work. The of the railroads of the country are from in- affirmative power of Congress in developing trastate traffic, and 50 per cent of the pas- interstate commerce agencies is clear. In senger receipts. The ratio of the gross intra- such development, it can impose any reasonstate revenue to the interstate revenue is a able condition on a state’s use of interstate little less than one to three. If the rates, on carriers for intrastate commerce it deems which such receipts are based, are to be fixed necessary or desirable. This is because of the at a substantially lower level than in inter- supremacy of the national power in this field. state traffic, the share which the intrastate Order of the District Court affirmed.

Davton-Goose CREEK RAattwaAy Company v. U.S. 349 440. DAYTON-GOOSE CREEK RAILWAY COMPANY v. UNITED STATES

263 U. S. 456 1924

Appeal from decree of District Court for Eastern to a so-called fair return is a plain appropriDistrict of Texas dismissing a bill to restrain en- ation of its property without any compensaforcement of order from Interstate Commerce tion; that the income it receives for the use Commission. The Transportation Act of 1920 of its property is as much protected by the Sth

(see Doc. No. 438) provided that any railroad Amendment as the property itself. The receiving an income in excess of such fair return as shall be established by the Interstate Com- statute declares the carrier to be only a merce Commission shall hold the excess carnings trustee for the excess over a fair return re-

as a trustee for the United States. One half of ceived by it. Though in its possession, the the excess is to constitute a reserve fund to be excess never becomes its property, and it acmaintained by the carrier, and the other half cepts custody of the product of all the rates a general railroad revolving fund to be main- with this understanding. It is clear, therefore, tained and administered by the Interstate Com- that the carrier never has such a title to the

merce Commission. excess as to render the recapture of it by Tart, C. J. The main question in this case the government a taking without due process.

is whether the so-called “recapture” para- It is then objected that the government

graphs of the Transportation Act of Febru- has no right to retain one half of the excess,

ary 28, 1920 are constitutional. .. . since, if it does not belong to the carrier, it

This court has recently had occasion to belongs to the shippers, and should be reconstrue the Transportation Act. ... It was turned to them. If it were valid, it is an obpointed out that the Transportation Act adds jection which the carrier cannot be heard to a new and important object to previous inter- make. It would be soon enough to consider state commerce legislation, which was de- such a claim when made by the shipper. But signed primarily to prevent unreasonable or it is not valid. The rates are reasonable from discriminatory rates against persons and lo- the standpoint of the shipper, as we have calities. The new act seeks affirmatively to shown, though their net product furnishes build up a system of railways prepared to more than a fair return for the carrier. The handle promptly all the interstate traffic of | excess caused by the discrepancy between the the country. It aims to give the owners of the standard of reasonableness for the shipper

railways an opportunity to earn enough to and that for the carrier, duc to the necessity maintain their properties and equipment in of maintaining uniform rates to be charged such a state of efficiency that they can carry the shippers, may properly be appropriated well this burden. To achieve this great pur- by the government for public uses because pose, it puts the railroad systems of the the appropriation takes away nothing which country more completely than ever under the equitably belongs either to the shipper or to

fostering guardianship and control of the the carrier... . Commission, which is to supervise their issue The third question for our consideration of securities, their car supply and distribu- is whether the recapture clause, by reducing tion, their joint use of terminals, their con- the net income from intrastate rates, invades struction of new lines, their abandonment of the reserved power of the States and is in old lines, and by a proper division of joint conflict with the 10th Amendment. In solvrates, and by fixing adequate rates, for inter- ing the problem of maintaining the efficiency state commerce, and, in case of discrimina- of an interstate commerce railway system tion, for intrastate commerce, to secure a which serves both the states and the nation, fair return upon the properties of the carriers Congress is dealing with a unit, in which

engaged. .. . state and interstate operations are often inWe have been greatly pressed with the extricably commingled. When the adequate argument that the cutting down of income maintenance of interstate commerce involves actually received by the carrier for its service and makes necessary on this account the in-

350 DOCUMENTS OF AMERICAN HIsTorRy cidental and partial control of intrastate terstate transportation system as Congress commerce, the power of Congress to exercise has planned it. The control of the excess such control has been clearly established. profit due to the level of the whole body of (Minnesota Rate Cases, 230 U. S. 352; rates is the heart of the plan. To divide that Shreveport Case, 234 U. S. 342; Railway excess and attempt to distribute one part to Commission v. Chicago B & Q R. R. 257 interstate traffic and the other to intrastate U.S. 563.) The combination of uniform rates traffic would be impracticable and defeat the

with the recapture clauses is necessary to plan... .

the better development of the country’s in- Decree of District Court affirmed.

441. GREEN v. FRAZIER 253 U. S. 233 1920

Error to the Supreme Court of the State of of bonds of the State of North Dakota in a North Dakota. This case involved the legality of | sym not exceeding $5,000,000 . . . These taxation for the maintenance of State-managed bonds are to be issued and sold for the purmanulactu ring and bankin & institutions. The pose of carrying on the business of the Mill decision in Loan Association v. Topeka, Doc _ & Elevator Association. The faith and credit No. 286, had established the rule that public moneys could not be used for the support of of the state are pledged for the payment of private business, but it remained to determine the bonds, both principle and interest .. . what businesses were private and what public in (7) The Home Building Act... . character. For the background, see P. R. Fos- There are certain principles which must be sum, The Agrarian Movement in North Dakota. borne in mind in this connection, and which must control the decision of this court upon

Day, J. ... The only ground of attack the federal question herein involved. This

involving the validity of the legislation which legislation was adopted under the broad requires our consideration concerns the al- power of the state to enact laws raising by leged deprivation of rights secured to the taxation such sums as are deemed necessary plaintiffs by the Fourteenth Amendment to to promote purposes essential to the general the federal Constitution. It is contended that welfare of its people. Before the adoption of taxation under the laws in question has the the Fourteenth Amendment this power of the effect of depriving plaintiffs of property state was unrestrained by any federal author-

without due process of law. ity. That amendment introduced a new limiThe legislation involved consists of a series tation upon state power into the federal Con-

of acts passed under the authority of the stitution. The states were forbidden to state constitution, which are (1) An Act deprive persons of life, liberty and property creating an Industrial Commission of North without due process of law. What is meant Dakota which is authorized to conduct and by due process of law this court has had manage on behalf of that State certain utili- frequent occasion to consider, and has alties, enterprises, and business projects, to be ways declined to give a precise meaning, pre-

established by law... (2) The Bank of ferring to leave its scope to judicial decisions North Dakota Act, which establishes a Bank when cases from time to time arise.

operated by the State... (4) An Act pro- The due process of law clause contains no

viding for the issuing of bonds in the sum of _ specific limitation upon the right of taxation

not exceeding $10,000,000 .. . These bonds in the states, but it has come to be settled are to be issued for the purpose of raising that the authority of the states to tax does

meney to produce funds for the Bank of not include the right to impose taxes for North Dakota... (5) An Act declaring merely private purposes... . the purpose of the State of North Dakota to Accepting this as settled by the former adengage in the business of manufacturing and _judications of this court, the enforcement of marketing farm products and to establish a the principle is attended with the application

warehouse, elevator, and flour mill system of certain rules equally well settled. a ... (6) An Act providing for the issuing The taxing power of the states is primarily

GREEN V. FRAZIER 351 vested in their legislatures, deriving their which the Mill and Elevator Association Act authority from the people. When a state leg- is the principal one. It justified the Mill and islature acts within the scope of its authority Elevator Association Act by the peculiar it is responsible to the people, and their right situation in the State of North Dakota, and to change the agents to whom they have in- particularly by the great agricultural industry trusted the power is ordinarily deemed a suf- _ of the state. It estimated from facts of which ficient check upon its abuse. When the con- it was authorized to take judicial notice, that

stituted authority of the state undertakes to 90 per cent. of the wealth produced by the exert the taxing power, and the question of state was from agriculture; and stated that the validity of its action is brought before upon the prosperity and welfare of that inthis court, every presumption in its favor is dustry other business and pursuits carried on indulged, and only clear and demonstrative in the state were largely dependent; that the usurpation of power will authorize judicial state produced 125,000,000 bushels of wheat

interference with legislative action. each year. The manner in which the present

In the present instance under the authority system of transporting and marketing this of the constitution and laws prevailing in great crop prevents the realization of what North Dakota the people, the legislature, and are deemed Just prices was elaborately stated.

the highest court of the state have declared It was affirmed that the annual loss from the purpose for which these several acts were these sources (including the loss of fertility passed to be of a public nature, and within — to the soil and the failure to feed the bythe taxing authority of the state. With this products of grain to stock within the state), united action of people, legislature and court, amounted to fifty-five millions of dollars to we are not at liberty to interfere unless it is the wheat raisers of North Dakota. It anclear beyond reasonable controversy that swered the contention that the industries inrights secured by the federal Constitution volved were private in their nature, by stathave been violated. What is a public purpose ing that all of them belonged to the State of has given rise to no little judicial considera- North Dakota, and therefore the activities tion. Courts, as a rule, have attempted no authorized by the legislation were to be disjudicial definition of a “public” as distin- tinguished from business of a private nature guished from a “private” purpose, but have having private gain for its objective.

left each case to be determined by its own As to the Home Building Act, that was peculiar circumstances... . Questions of sustained because of the promotion of the policy are not submitted to judicial deter- general welfare in providing homes for the mination, and the courts have no general people, a large proportion of whom were authority of supervision over the exercise of tenants moving from place to place. It was discretion which under our system is reposed believed and affirmed by the supreme court in the people or other departments of gov- of North Dakota that the opportunity to se-

ernment. cure and maintain homes would promote the With the wisdom of such legislation, and general welfare, and that the provisions of

the soundness of the economic policy in- the statutes to enable this feature of the volved we are not concerned. Whether it will system to become effective would redound

result in ultimate good or harm it is not’ to the general benefit.

within our province to inquire. As we have said, the question for us to We come now to examine the grounds upon’ consider and determine is whether this sys-

which the supreme court of North Dakota tem of legislation is violative of the federal held this legislation not to amount to a tak- Constitution because 1t amounts to a taking ing of property without due process of law. of property without due process of law. The The questions involved were given elaborate precise question herein involved so far as consideration in that court, and it held, con- we have been able to discover has never been cerning what may in general terms be de- presented to this court. The nearest approach nominated the “banking legislation,” that it to it is found in Jones v. City of Portland, was justifed for the purpose of providing 245 U.S. 217, in which we held that an act banking facilities, and to enable the state to of the State of Maine authorizing cities or carry out the purposes of the other acts, of | towns to establish and maintain wood, coal

352 DocCUMENTS OF AMERICAN HISTORY and fuel yards for the purpose of selling principle of that decision is applicable here. these necessaries to the inhabitants of cities This is not a case of undertaking to aid and towns, did not deprive taxpayers of due private institutions by public taxation as was process of law within the meaning of the _ the fact in Citizens’ Savings and Loan AssoFourteenth Amendment. In that case we _ ciation v. Topeka, 20 Wallace 655. In many reiterated the attitude of this court towards instances states and municipalities have in state legislation, and repeated what had been late years seen fit to enter upon projects to said before, that what was or was not a _ promote the public welfare which in the past public use was a question concerning which have been considered entirely within the dolocal authority, legislative and judicial, had main of private enterprise. especial means of securing information to Under the peculiar conditions existing in enable.them to form a judgment; and par- North Dakota, which are emphasized in the ticularly that the judgment of the highest opinion of its highest court, if the state sees court of the state declaring a given use to fit to enter upon such enterprises as are here be public in its nature, would be accepted involved, with the sanction of its constituby this court unless clearly unfounded. In | tion, its legislature and its people, we are not that case the previous decisions of this court, prepared to say that it is within the authorsustaining this proposition, were cited with ity of this court, in enforcing the observance approval, and a quotation was made from of the Fourteenth Amendment, to set aside the opinion of the supreme court of Maine © such action by judicial decision.

justifying the legislation under the condli- Affirmed. tions prevailing in that state. We think the

442. TREATY OF PEACE WITH GERMANY August 25, 1921 (U.S. Statutes at Large, Vol. XX XXII, p. 1939) The United States of America and Ger-_ reserved to the United States of America

many: and its nationals any and all rights, priv-

Considering that the United States, acting ileges, indemnities, reparations or advanin conjunction with its co-belligerents, en- tages, together with the right to enforce the tered into an Armistice with Germany on same, to which it or they have become en-

November 11, 1918, in order that a Treaty titled under the terms of the Armistice

of Peace might be concluded; signed November 11, 1918, or any extensions Considering that the Treaty of Versailles or modifications thereof; or which were acwas signed on June 28, 1919, and came into quired by or are in the possession of the force according to the terms of its Article United States of America by reason of its 440, but has not been ratified by the United participation in the war or to which its na-

States: tionals have thereby become rightfully enConsidering that the Congress of the titled; or which, under the Treaty of

United States passed a Joint Resolution, ap- Versailles, have been stipulated for its or proved by the President July 2, 1921, which their benefit; or to which it is entitled as

reads in part as follows: one of the Principal Allied and Associated

“Resolved by the Senate and House of powers; or to which it is entitled by virtue Representatives of the United States of of any Act or Acts of Congress; or other-

America in Congress Assembled: wise.”

“That the state of war declared to exist . . . Being desirous of restoring the friendly between the Imperial German Government relations existing between the two Nations

and the United States of America by the prior to the outbreak of war: joint resolution of Congress approved April Have for that purpose appointed their 6, 1917, is hereby declared at an end. plenipotentiaries: “Section 2. That in making this declara- The President of the United States of tion, and as a part of it, there are expressly America

THE SHEPPARD-TOWNER ACT 353 Ellis Loring Dresel, Commissioner of the bound by the provisions of Part 1 of that United States of America to Germany, ‘Treaty, nor by any provisions of that Treaty,

and including those mentioned in Paragraph

The President of the German Empire (1) of this Article, which relate to the Dr. Friedrich Rosen, Minister for For- Covenant of the League of Nations, or by

eign Affairs, the Council or by the Assembly thereof,

Who, having communicated their full unless the United States shall expressly give powers, found to be in good and due form _ the assent to such action.

have agreed as follows: (3) That the United States assumes no

Art. 1. Germany undertakes to accord to obligations under or with respect to the prothe United States, and the United States shall visions of Part II, Part III, Sections 2 to have and enjoy, all the rights, privileges, in- 8 inclusive of Part IV, and Part XIII of that demnities, reparations or advantages spec- ‘Treaty. ified in the aforesaid Joint Resolution of the (4) That, while the United States is privCongress of the United States of July 2, ileged to participate in the Reparation Com1921, including all the rights and advantages mission, according to the terms of Part VIII stipulated for the benefit of the United of that Treaty, and in any other Commission States in the Treaty of Versailles which the established under the Treaty or under any United States shall fully enjoy notwithstand- agreement supplemental thereto, the United ing the fact that such Treaty has not been States is not bound to participate in any such

ratifed by the United States. commission unless it shall elect to do so.

Art. 2. With a view to defining more par- (S$) That the periods of time to which ticularly the obligations of Germany under _ reference is made in Article 440 of the Treaty the foregoing Article with respect to certain of Versailles shall run, with respect to any

provisions in the Treaty of Versailles, it is act or election on the part of the United understood and agreed between the High States, from the date of the coming into

Contracting Parties: force of the present Treaty.

(1) That the rights and advantages stip- Art. 3. The present Treaty shall be ratulated in that Treaty for the benefit of the ified in accordance with the constitutional United States, which it is intended the forms of the High Contracting Parties and United States shall have and enjoy, are those — shall take effect immediately on the exchange

defined in Section 1 of Part IV, and Parts V, of ratifications, which shall take place as

VI, VII, IX, X, XI, XII, XIV, and XV. soon as possible at Berlin.

The United States, in availing itself of the In witness whereof, the respective plenirights and advantages stipulated in the pro- potentiaries have signed this Treaty and visions of that Treaty mentioned in this have hereunto affixed their seals. paragraph, will do so in a manner consistent Done in duplicate in Berlin this twentywith the rights accorded to Germany under fifth day of August, 1921.

such provisions. Ellis Loring Dresel. (2) That the United States shall not be Rosen. 443. THE SHEPPARD-TOWNER ACT November 23, 1921

(U.S. Statutes at Large, Vol. XXXXII, p. 224 ff.) This act, extending federal aid to states for wel- An Act For the promotion of the welfare fare work, was regarded by many critics as an gnd hygiene of maternity and infancy, and unwarranted intrusion on the jurisdiction of the for other pur poses.

states, many states refused them-Anat Be there it ted1sThat ‘sh , selves ofand the provisions of the act. SeetoA.avail F. enacted erebyth authorized

Macdonald, Federal Aid: a Study of the Ameri- '© be appropriated annually, out of any can Subsidy System; W. Thompson, Federal money in the Treasury not otherwise appro-

Centralization, priated, the sums specified in section 2 of

354 DOCUMENTS OF AMERICAN HISTORY this Act, to be paid to the several States for appropriations authorized in section 2 of this

the purpose of cooperating with them in Act, any State shall, through the legislative promoting the welfare and hygiene of ma- authority thereof, accept the provisions of ternity and infancy as hereinafter provided. this Act and designate or authorize the creaSec. 2. For the purpose of carrying out the tion of a State agency with which the Chilprovisions of this Act, there is authorized to dren’s Bureau shall have all necessary powers

be appropriated, out of any money in the to co-operate as herein provided in the adTreasury not otherwise appropriated, for the ministration of the provisions of this Act: current fiscal year $480,000, to be equally Provided, That in any State having a childapportioned among the several States, and for welfare or child-hygiene division in its State

each subsequent year, for the period of five agency of health, the said State agency of years, $240,000, to be equally apportioned health shall administer the provisions of this among the several States in the manner Act through such divisions. If the legislature

hereinafter provided: Provided, That there of any State has not made provision for is hereby authorized to be appropriated for accepting the provisions of this Act the the use of the States, subject to the provi- governor of such State may in so far as he sions of this Act, for the fiscal year ending is authorized to do so by the laws of such to June 30, 1922, an additional sum of State accept the provisions of this Act and $1,000,000 and annually thereafter, for the designate or create a State agency to coperiod of five years, an additional sum not operate with the Children’s Bureau until six to exceed $1,000,000: Provided further, That months after the adjournment of the first the additional appropriations herein author- regular session of the legislature in such State

ized shall be apportioned $5,000 to each following the passage of this Act... . State and the balance among the States in Sec. 8. Any State desiring to receive the the proportion which their population bears benefits of this Act shall, by its agency deto the total population of the States of the scribed in section 4, submit to the Children’s United States, according to the last preced- Bureau detailed plans for carrying out the ing United States census: And provided provisions of this Act within such State, further, That no payment out of the addi- which plans shall be subject to the approval tional appropriation herein authorized shall of the board: ... be made in any year to any State until an Sec. 14. This Act shall be construed as inequal sum has been appropriated for that tending to secure to the various States conyear by the legislature of such State for trol of the administration of this Act within the maintenance of the services and facilities their respective States, subject only to the

provided for in this Act... . provisions and purposes of this Act. Sec. 4. In order to secure the benefits of the

444, TRUAX v. CORRIGAN 257 U. S. 312 1921

Error to the supreme court of Arizona. This is “No restraining order or injunction shall one of the leading cases on the right of labor to be granted by any court of this state, or a picket or to employ a boycott in labor disputes. judge or the judges thereof, in any case beThe facts of the controversy are stated in the case tween an employer and employees, or bebelow. For a general discussion, see F. Frank- tween employers and employees, or between furter and N. Greene, The Labor Injunction; P. F. Brissenden, “The Labor Injunction,” Pol. employees, or between persons employed and

Sci. Qt., Vol. XLVIIL, persons seeking employment, involving or

growing out of a dispute concerning terms

Tart, C. J.... The complaint further or conditions of employment, unless neces-

averred that the defendants were relying for sary to prevent irreparable injury to propimmunity on Paragraph 1464 of the Revised erty or to a property right of the party makStatutes of Arizona, 1913, which is in part as ing the application, for which injury there

follows: is no adequate remedy at law, and such prop-

TRUAX V. CORRIGAN 355 erty or property right. must be described with owner, and customers to his place of business

particularity in the application, which must is incident to such right. Intentional be in writing and sworn to by the applicant injury caused to either right or both by a con-

or by his agent or attorney. spiracy is a tort... .

“And no such restraining order or injunc- A law which operates to make lawful such

tion shall prohibit any person or persons a wrong as is described in plaintiffs’ comfrom terminating any relation of employ- plaint deprives the owner of the business and ment, or from ceasing to perform any work the premises of his property without due or labor, or from recommending, advising, process, and cannot be held valid under the or persuading others by peaceful means so Fourteenth Amendment... . to do; or from attending at or near a house If, however, contrary to the construction or place where any person resides or works, which we put on the opinion of the Supreme or carries on business, or happens to be for Court of Arizona, it does not withhold from the purpose of peacefully obtaining or com- the plaintiffs all remedy for the wrongs they

municating information, or of peacefully suffered, but only the equitable relief of persuading any person to work or to abstain injunction, there still remains the question from working; or from ceasing to patronize whether they are thus denied the equal proor to employ any party to such dispute; or tection of the laws. . . . from recommending, advising, or persuading The necessary effect of . . . paragraph 1464 others by peaceful means so to do; .. .” is that the plaintiffs in error would have had The plaintiffs alleged that this paragraph the right to an injunction against such a if it made lawful defendants’ acts contra- campaign as that conducted by the defendvened the Fourteenth Amendment to the ants in error, if it had been directed against Constitution of the United States by depriv- the plaintiffs’ business and property in any ing plaintiffs of their property without due kind of a controversy which was not a disprocess of law, and by denying to plaintiffs pute between employer and former em-

the equal protection of the laws, and was, ployees.... |

therefore, void and of no effect. Upon the This brings us to consider the effect in case thus stated the plaintiffs asked a tem- this case of that provision of the Fourteenth porary, and a permanent, injunction. Amendment which forbids any State to deny

... The Superior Court for Chocise to any person the equal protection of the

County ... dismissed the complaint, and laws. The clause is associated in the amendthis judgment was affirmed by the supreme ment with the due process clause and it 1s

court of Arizona... . customary to consider them together. .. .

The effect of this ruling is that, under the The guaranty was aimed at undue favor and statute, loss may be inflicted upon the plain- individual or class privilege, on the one hand,

tiffs’ property and business by “picketing” and at hostile discrimination or the oppresin any form if violence be not used, and _ sion of inequality, on the other. It sought an

that, because no violence was shown or equality of treatment of all persons, even claimed, the campaign carried on, as de- though all enjoyed the protection of due scribed in the complaint and exhibits, did process. Mr. Justice Field, delivering the not unlawfully invade plaintiffs’ rights. ... opinion of this court in Barbier v. Connolly, The complaint and its exhibits make this 113 U. S. 27, of the equality clause, said—

case: “Class legislation, discriminating against

The defendants conspired to injure and some and favoring others, is prohibited, but destroy plaintiffs’ business by inducing their legislation which, in carrying out a public theretofore willing patrons and would be pa- purpose, is limited in its application, if

trons not to patronize them... . within the sphere of its operation it affects The result of this campaign was to reduce’ alike all persons similarly situated, is not the business of the plaintiffs from more than within the amendment.” .. .

$55,000 a year to one of $12,000. Mr. Justice Matthews, in Yick Wo v. HopPlaintiffs’ business is a property right kins, 118 U. S. 356, speaking for the court (Duplex Printing Press Co. v. Deering, 254 of both the due process and the equality U. S. 443) and free access for employees, clause of the Fourteenth Amendment, said:

356 DOCUMENTS OF AMERICAN HISTORY “These provisions are universal in their ap- Judgment reversed. plication, to all persons within the territorial Hotes, J., dissenting. The dangers of jurisdiction, without regard to any differences a delusive exactness in the application of the

of race, of color, or nationality; and the Fourteenth Amendment have been adverted

equal protection of the laws is a pledge of the to before now. Delusive exactness is a source

protection of equal laws.” ... of fallacy throughout law. By calling a busiWith these views of the meaning of the ness “property” you make it seem like land, equality clause, it does not seem possible to and lead up to the conclusion that a statute escape the conclusion that by the clauses of cannot substantially cut down the advantages Paragraph 1464 of the Revised Statutes of of ownership existing before the statute was Arizona, here relied on by the defendants, as__ passed. An established business no doubt may construed by its supreme court, the plaintiffs have pecuniary value and commonly is pro-

have been deprived of the equal protection tected by law against various unjustified inof the law. . . . Here is a direct invasion of juries. But you cannot give it definiteness of the ordinary business and property rights of contour by calling it a thing. It is a course of a person, unlawful when committed by any conduct and like other conduct is subject to one, and remediable because of its otherwise substantial modification according to time irreparable character by equitable process, and circumstances both in itself and in reexcept when committed by ex-employees of gard to what shall justify doing it harm. I the injured person. If this is not a denial of cannot understand the notion that it would the equal protection of the laws, then it is be unconstitutional to authorize boycotts and

hard to conceive what would be... . the like in aid of the employees’ or the emClassification is the most inveterate of our ployers’ interest by statute when the same reasoning processes. We can scarcely think result has been reached constitutionally with-

or speak without consciously or uncon- out statute by Courts with whom I agree. In sciously exercising it. It must therefore ob- this case it does not even appear that the tain in and determine legislation; but it must business was not created under the laws as regard real resemblances and real differences they now are.

between things and persons, and class them I think further that the selection of the in accordance with their pertinence to the class of employers and employees for special purpose in hand. Classification like the one treatment, dealing with both sides alike, is with which we are here dealing is said to be beyond criticism on principles often asserted the development of the philosophic thought by this Court. And especially I think that of the world and is opening the door to without legalizing the conduct complained of legalized experiment. When fundamental _ the extraordinary relief by injunction may be rights are thus attempted to be taken away, denied to the class. Legislation may begin however, we may well subject such experi- where an evil begins. If, as many intelligent ment to attentive judgment. The Constitu- people believe, there is more danger that the tion was intended, its very purpose was, to injunction will be abused in labor cases than prevent experimentation with the funda- elsewhere I can feel no doubt of the power

mental rights of the individual. We said of the legislature to deny it in such through Mr. Justice Brewer, in Muller v. cases... . Oregon, 208 U. S. 412, 52 L. ed. 551, 28 I must add one general consideration. S. Ct. R. 324, that “it is the peculiar value of | There is nothing that I more deprecate than

a written constitution that it places in un-- the use of the Fourteenth Amendment bechanging form limitations upon legislative yond the absolute compulsion of its words to action, and thus gives a permanence and _ prevent the making of social experiments that stability to popular government which other- an important part of the community desires,

wise would be lacking.” .. . in the insulated chambers afforded by the We conclude that the demurrer in this case several States, even though the experiments should have been overruled, the defendants may seem futile or even noxious to me and required to answer, and that if the evidence to those whose judgment I most respect. I sustained the averments of the complaint, agree with the more elaborate expositions of

an injunction should issue as prayed... . my brothers PitrNEy and BRANDEIS and

DUPLEX PRINTING PRESS COMPANY V. DEERING 357 in their conclusion that the judgment should in which Crarke, J., concurred. BRANDEIS,

be affirmed. J., also delivered a dissenting opinion. ) (PITNEY, J., delivered a dissenting opinion,

445. DUPLEX PRINTING PRESS COMPANY v. DEERING 254 U. S. 443 1921

Appeal from the U.S. circuit court of appeals about the city of New York as part of a for the second district. Suit to enjoin an alleged country-wide program adopted by the Interunlawiul conspiracy in restraint of trade. The pational] Association, for the purpose of enfacts are stated in the opinion. This is the lead- forcing a boycott of complainant’s prod-

ing case on the interpretation of the labor uct... . cases of ee orton Anti-Trust Act of 1914. All the judges of the Circuit Court of

Ce MOC. INO. 400. Appeals concurred in the view that defend-

Pitney, J. This was a suit in equity brought ants’ conduct consisted essentially of efforts

by appellant in the District Court for the to render it impossible for complainant to Southern District of New York for an in- carry on any commerce in printing presses junction to restrain a course of conduct car- between Michigan and New York; and that

ried on by defendants in that district... defendants had agreed to do and were enin maintaining a boycott against the prod- deavoring to accomplish the very thing proucts of complainant’s factory, in furtherance nounced unlawful by this court in Lowe v. of a conspiracy to injure and destroy its Lawler. The judges also agreed that the ingood will, trade, and business,—especially to terference with interstate commerce was such

obstruct and destroy its interstate trade... . as ought to be enjoined, unless the Clayton The suit was begun before but brought to Act of October 15, 1914, forbade such inhearing after, the passage of the Clayton Act junction... . of October 15, 1914. Both parties invoked That . . . complainant has sustained subthe provisions of the later act, and both stantial damage to its interstate trade,—and Courts created them as applicable. Com- is threatened with further and irreparable plainant relied also upon the common law; loss and damage in the future,—is proved by but we shall deal first with the effect of the clear and undisputed evidence. Hence, the

acts of Congress. right to an injunction is clear if the threat-

The facts . . . may be summarized as fol- ened loss is due to a violation of the Sherman lows: Complainant conducts its business on Act, as amended by the Clayton Act. .. . the “open-shop” policy, without discrimina- The substance of the matters here comtion against either union or nonunion men. plained of is an interference with complainThe individual defendants and the local or- ant’s interstate trade intended to have cocrganization of which they are the representa- cive effect upon complainant, and produced tives are affiliated with the International As- by what is commonly known as a “secondary sociation of Machinists ... and are united boycott”; that is, a combination not merely in a combination, . . . having the object of to refrain from dealing with complainant, or compelling complainant to unionize its fac- to advise or by peaceful means persuade

tory. ... complainant’s customers to refrain (‘“priIn August, 1913 . . . the International As- mary boycott”) but to exercise coercive

sociation called a strike at complainant’s pressure. .. . factory in Battle Creek, as a result of which As we shall see, the recognized distinction union machinists to the number of about between a primary and a secondary boycott eleven in the factory, and three who super- is material to be considered upon the quesvised the erection of presses in the field, left tion of a proper construction of the Clayton

complainant’s employ. ... The acts com- Act....

plained of made up the details of an elab- The principal reliance is upon sec. 20 (of orate program adopted and carried out by Clayton Act)... . The second paragraph defendants in their organizations in and declares that “no such restraining order or

358 DocUMENTS OF AMERICAN History injunction” shall prohibit certain conduct pressure exerted upon a “party to such disspecified,—manifestly still referring to a pute” by means of “peaceful and Jawful” in“case between an employer and an em- fluence upon neutrals. There is nothing here ployee, . . . involving, or growing out of, a to justify defendants or the organizations dispute concerning terms or conditions of they represent in using either threats or peremployment”, as designated in the first para- suasion to bring about strikes or a cessation

graph. It is very clear that the restriction of work on the part of employees of comupon the use of the injunction is in favor plainant’s customers or prospective customonly of those concerned as parties to such a ers, or of the trucking company employed by

dispute as is described... . the customers, with the object of compelling

The majority of the Circuit Court of Ap- such customers to withdraw or refrain from peals appear to have entertained the view commercial relations with complainant, and that the words “employers and employees” of thereby constraining complainant to yield as used in sec. 20 should be treated as re- the matter in dispute. To instigate a sympa-

ferring to “the business class or clan to thetic strike in aid of a secondary boycott which the parties ligitant respectively be- cannot be deemed “peaceful and lawful” per-

long;” and that, ... sec. 20 operated to suasion... .

permit members of the Machinists’ Union The question whether the bill legalized a elsewhere—some 60,000 in number,—al- secondary boycott having been raised (in the though standing in no relation of employment House), it was emphatically and unequiv-

under complainant, past, present, or pro- ocally answered... in the negative. The spective, to make that dispute their own, subject ... was under consideration when and proceed to instigate sympathetic strikes, the bill was framed, and the section as repicketing, and boycotting against employers ported was carefully prepared with the setwholly unconnected with complainant’s fac- tled purpose of excluding the secondary boytory, and having relations with complainant cott, and confining boycotting to the parties only in the way of purchasing its product in to the dispute, allowing parties to cease to the ordinary course of interstate commerce, patronize and to ask others to cease to pat—and this where there was no dispute between _ronize a party to the dispute; it was the such employers and their employees respect- opinion of the committee that it did not leing terms or cor.litions of employment. galize the secondary boycott; it was not their We deem this construction altogether in- purpose to authorize such a boycott; not a

admissible. .. . member of the committee would vote to do

The emphasis placed on the words “lawful” so; clarifying amendment was unnecessary; and “‘lawfully,” “peaceful” and “peacefully”, the section as reported expressed the real pur-

and the references to the dispute and the pose so well that it could not be tortured into parties to it, strongly rebut a legislative in- a meaning authorizing the secondary boytent to confer a general immunity for conduct cott.... violative of the Anti-Trust laws, or otherwise There should be an injunction against deunlawful. The subject of the boycott is dealt fendants and the associations represented by with specifically in the “ceasing to patronize” them. provision, and by the clear force of the lan- Justices BRANDEIS, HOLMES and CLaRKE disguage employed the exemption is limited to _ senting.

446. BALZAC v. PORTO RICO

258 U.S. 298 1922

Error to the supreme court of Porto Rico. Bal- habitants of our insular possessions. For the zac, an editor, was convicted for criminal libel constitutional problems involved, see references without a jury trial. He appealed on the ground under Downes v. Bidwell, Doc. No. 352.

that the Sixth Amendment to the Federal Con- oo .

stitution guaranteed him the right of trial by Tart, C. J... . We have now to inquire jury. This case involved the question of the ap- Whether that part of the sixth Amendment to plication of such procedural rights to the in- the Constitution, which requires that, in all

BaLzaAac Vv. Porto RIco 359 criminal prosecutions, the accused shall enjoy gressional action, a system of laws which the right to a speedy and public trial, by an shall include the right of trial by jury, and impartial jury of the State and district that the Constitution does not, without legiswherein the crime shall have been committed, lation and of its own force, carry such right which district shall have been previously as- to territory so situated.” certained by law, applies to Porto Rico. An- The question before us, therefore, is: Has other provision on the subject is in Article Congress, since the Foraker Act of April 12, III of the Constitution providing that the trial 1900, enacted legislation incorporating Porto of all crimes, except in cases of impeachment, Rico into the Union? Counsel for the plainshall be by jury; and such trial shall be held _ tiff in error give, in their brief, an extended

in the State where the said crimes shall have list of acts, to which we shall refer later, been committed; but, when not committed which they urge as indicating a purpose to within any State, the trial shall be at such make the island a part of the United States, place or places as the Congress may by law but they chiefly rely on the Organic Act of have directed. The Seventh Amendment of the Porto Rico of March 2, 1917, known as the Constitution provides that in suits at common Jones Act.

law, where the value in controversy shall ex- The act is entitled “An Act to provide a ceed twenty dollars, the right of trial by jury civil government for Porto Rico, and for other shall be preserved. It is well settled that these purposes.”’ It does not indicate by its title provisions for jury trial in criminal and civil that it has a purpose to incorporate the island cases apply to the territories of the United into the Union. It does not contain any clause States. . . . But it is just as clearly settled which declares such purpose or effect. While that they do not apply to territory belonging this is not conclusive, it strongly tends to to the United States, which has not been in- show that Congress did not have such an corporated into the Union. Hawaii v. Man- intention. Few questions have been the subkichi, 190 U. S. 197, Dorr v. United States, ject of such discussion and dispute in our 195 U. S. 138. It was further settled in country as the status of our territory acquired Downes v. Bidwell, 182 U. S. 244, and con- from Spain in 1899. The division between the firmed by Dorr v. United States, 195 U.S. political parties in respect to it, the diversity 138, R. 808, that neither the Philippines nor of the views of the members of this court in Porto Rico was territory which had been regard to its constitutional aspects, and the incorporated in the Union or become a part constant recurrence of the subject in the of the United States, as distinguished from Houses of Congress, fixed the attention of merely belonging to it; and that the acts giv- all on the future relation of this acquired tering temporary governments to the Philip- ritory to the United States. Had Congress pines, 32 Stat. 691, and to Porto Rico, 31 Stat. intended to take the important step of chang77, had no such effect. The Jnusular Cases re- ing the treaty status of Porto Rico by incorvealed much diversity of opinion in this court porating it into the Union, it is reasonable to

as to the constitutional status of the territory suppose that it would have done so by the acquired by the Treaty of Paris ending the plain declaration, and would not have left it Spanish War, but the Dorr Case shows that to mere inference. Before the question bethe opinion of Mr. Justice White of the ma- came acute at the close of the Spanish War, jority, in Downes v. Bidwell, has become the’ the distinction between acquisition and insettled law of the court. The conclusion of corporation was not regarded as important, or this court in the Dorr Case, 195 U.S. 149, was at least it was not fully understood and had

as follows: not aroused great controversy. Before that, ‘“‘We conclude that the power to govern’ the purpose of Congress might well be a matterritory, implied in the right to acquire it, ter of mere inference from various legislative and given to Congress in the Constitution in acts; but in these latter days, incorporation Article IV, § 3, to whatever other limitations is not to be assumed without express declarait may be subject, the extent of which must tion, or an implication so strong as to exclude be decided as questions arise, does not require any other view... . that body to enact for ceded territory, not The section of the Jones Act which counsel made a part of the United States by Con- press on us is § 5. This in effect declares that

360 DOCUMENTS OF AMERICAN History all persons who under the Foraker Act were Continent and within easy reach of the then made citizens of Porto Rico and certain other United States. It involved none of the difficulresidents shall become citizens of the United ties which incorporation of the Philippines States, unless they prefer not to become such, and Porto Rico presents, and one of them is in which case they are to declare such pref- in the very matter of trial by jury. This court

erence within six months, and thereafter they refers to the difficulties in Dorr v. United lose certain rights under the new government. States, 195 U.S. 138, 148:

. . . When Porto Ricans passed from under “If the right to trial by jury were a fundathe government of Spain, they lost the pro- mental right which goes wherever the juristection of that government as subjects of the diction of the United States extends, or if King of Spain, a title by which they had been Congress, in framing laws for outlying terriknown for centuries. They had a right to ex- tory belonging to the United States was pect, in passing under the dominion of the obliged to establish that system by affirmative United States, a status entitling them to the legislation, it would follow that, no matter protection of their new sovereign. ... It be- what the needs or capacities of the people, came a yearning of the Porto Ricans to be trial by jury, and in no other way, must be American citizens, therefore, and this act gave forthwith established, although the result may them the boon. What additional rights did it be to work injustice and provoke disturbance give them? It enabled them to move into the _ rather than to aid the orderly administration

continental United States and becoming resi- of justice. ... Again, if the United States dents of any State there to enjoy every right shall acquire by treaty the cession of territory of any other citizen of the United States, civil, having an established system of jurisprusocial and political. A citizen of the Philip- dence, where jury trials are unknown, but a pines must be naturalized before he can settle method of fair and orderly trial prevails unand vote in this country. Not so the Porto der an acceptable and long-established code,

Rican under the Organic Act of 1917. the preference of the people'must be disreIn Porto Rico, however, the Porto Rican garded, their established customs ignored and can not insist upon the right of trial by jury, they themselves coerced to accept, in advance except as his own representatives in his legis- of incorporation into the United States, a sysJature shall confer it on him. The citizen of | tem of trial unknown to them and unsuited to the United States living in Porto Rico can their needs. We do not think it was intended, not there enjoy a right of trial by jury under in giving power to Congress to make regulathe Federal Constitution, any more than the _ tions for the territories, to hamper its exercise Porto Rican. It is locality that is determina- with this condition.”

tive of the application of the Constitution, The jury system needs citizens trained to in such matters as judicial procedure, and not the exercise of the responsibilities of jurors.

the status of the people who live in it. In common-law countries centuries of tradi-

It is true that, in the absence of other and _ tion have prepared a conception of the imparcountervailing evidence, a law of Congress or tial attitude jurors must assume. The jury a provision in a treaty acquiring territory, de- system postulates a conscious duty of particclaring an intention to confer political and ipation in the machinery of justice which it civil rights on the inhabitants of the new 1s hard for people not brought up in fundalands as American citizens, may be properly mentally popular government at once to ac-

interpreted to mean an incorporation of it quire. One of its greatest benefits is in the into the Union, as in the case of Louisiana and _ security it gives the people that they, as ju-

Alaska. This was one of the chief grounds rors actual or possible, being a part of the upon which this court placed its conclusion judicial system of the country can prevent

that Alaska had been incorporated in the its arbitrary use or abuse. Congress has Union, in Rassmussen v. United States, 197 thought that a people like the Filipinos or the U.S. 516. But Alaska was a very different case Porto Ricans, trained to a complete judicial from that of Porto Rico. It was an enormous system which knows no juries, living in comterritory, very sparsely settled and offering pact and ancient communities, with definitely opportunity for immigration and settlement formed customs and _ political conceptions, by American citizens. It was on the American should be permitted themselves to determine

NAVAL LIMITATION TREATY 361 how far they wish to adopt this institution of of such a policy, for that is not our province, Anglo-Saxon origin, and when. ... We can-__ it is reasonable to assume that when such a

not find any intention to depart from this step is taken it will be begun and taken by policy in making Porto Ricans American cit- Congress deliberately and with a clear dec-

izens. .. laration of purpose, and not left a matter of

We need not dwell on another considera- mere inference or construction... . tion which requires us not lightly to infer, On the whole, therefore, we find no features from acts thus easily explained on other inthe Organic Act of Porto Rico of 1917 from grounds, an intention to incorporate in the which we can infer the purpose of Congress to Union these distant ocean communities of a incorporate Porto Rico into the United States different origin and language from those of with the consequences which would folour continental people. Incorporation has al- low... . ways been a step, and an important one, lead- The judgments of the Supreme Court of | ing to statehood. Without, in the slightest de- Porto Rico are affirmed. gree, intimating an opinion as to the wisdom Mr. Justice HotmeEs concurs in the result.

447, NAVAL LIMITATION TREATY Signed February 6, 1922 Proclaimed August 21, 1923 (U. S. Statutes at Large, Vol. XXXXIII, p. 1655 ff.) December 14, 1920, Senator Borah introduced a their respective full powers, found to be in resolution requesting the President to call an good and due form, have agreed as follows: international conference for the reduction of

naval armaments. The resolution was appended CHAPTER I

to the Naval Appropriations Bill for 1921. In accordance with this resolution President Har- ART. I. The Contracting Powers agree to ding invited the principal powers.to a conference limit their respective naval armament as pro-

to consider not only naval disarmaments, but vided in the present Treaty. questions relating to the Pacific as well. The ART. II. The Contracting Powers may reconference convened in Washington November tajn respectively the capital ships which are 12, 1921, and secretary Hughes presented the specified in Chapter II, Part 1. On the comAmerican program for disarmament. That Pro- ing into force of the present Treaty, but subTreaty, given below. On the Washington Con- Ject to the following Provisions of this Arference see R. L. Buell, The Washington Con- ticle, all other capital ships, built or building, ference; Y. Ichihashi, The Washington Confer- of the United States, the British Empire and ence and After; G. H. Blakeslee, The Pacific Japan shall be disposed of as prescribed in Area, World Peace Foundation Pamphlets, Vol. Chapter II, Part 2. AIT, no. 3; S. F. Bemis, ed. American Secretaries In addition to the capital ships specified in of State, Vol. X, p. 242 ff. The Report of the Chapter II, Part 1, the United States may Conference is in Senate Document 126, 67th complete and retain two ships of the West

gram was embodied in the Naval Limitation . ; . ;

Congress, 2nd Session. See now also, Docs. No. 448, Vireinia cl d tructi On the th 449. irginta Class under construction. On completion of these two ships the North DaThe United States of America, the British kota and Delaware shall be disposed of as pre-

Empire, France, Italy and Japan; scribed in Chapter II, Part 2.

Desiring to contribute to the maintenance The British Empire may, in accordance of the general peace, and to reduce the bur- with the replacement table in Chapter II,

dens of competition in armament; Part 3, construct two new capital ships not

Have resolved, with a view to accomplish- exceeding 35,000 tons (35,560 metric tons) ing these purposes, to conclude a treaty to standard displacement each. On the complelimit their respective naval armament, and to _ tion of the said two ships the Thunderer, King

that end have appointed as their Plenipo- George V, Ajax and Centurion shall be dis-

tentiaries; ... posed of as prescribed in Chapter II, Part 2. Who, having communicated to each other ART. III. Subject to the provisions of

362 DocUMENTS OF AMERICAN HISTORY Article II, the Contracting Powers shall aban- fighting ships, shall not be within the limita-

don their respective capital ship building tions of this Article. programs, and no new capital ships shall be ART. XII. No vessel of war of any of the constructed or acquired by any of the Con- Contracting Powers, hereafter laid down, tracting Powers except replacement tonnage other than a capital ship, shall carry a gun which may be constructed or acquired as with a calibre in excess of 8 inches (203 milli-

specified in Chapter II, Part 3. metres).

Ships which are replaced in accordance with ART. XIII. Except as provided in Article Chapter II, Part 3, shall be disposed of as IX, no ship designated in the present Treaty prescribed in Part 2 of that Chapter. to be scrapped may be reconverted into a vesART. IV. The total capital ship replacement sel of war. tonnage of the Contracting Powers shall not ART. XIV. No preparations shall be made exceed in standard displacement, for the in merchant ships in time of peace for the United States 525,000 tons (533,400 metric installation of warlike armaments for the tons); for the British Empire 525,000 tons purpose of converting such ships into vessels

(533,400 metric tons); for France 175,000 of war,... tons (177,800 metric tons); for Italy 175,000 ART, XIX. The United States, the British tons (177,800 metric tons); for Japan 315,000 Empire and Japan agree that the status quo

tons (320,040 metric tons). at the time of the signing of the present

ART. V. No capital ship exceeding 35,000 ‘Treaty, with regard to fortifications and naval tons (35,560 metric tons) standard displace- bases, shall be maintained in their respective ment shall be acquired by, or constructed by, territories and possessions specified here-

for, or within the jurisdiction of, any of the under:

Contracting Powers. (1) The insular possessions which the ART. VI. No capital ship of any of the United States now holds or may hereafter

Contracting Powers shall carry a gun with acquire in the Pacific Ocean, except (a) those a calibre in excess of 16 inches (405 milli- adjacent to the coast of the United States,

metres). Alaska and Panama Canal Zone, not includART. VII. The total tonnage. for aircraft ing the Aleutian Islands, and (b) the Hawaicarriers of each of the Contracting Powers ian Islands; shall not exceed in standard displacement, for (2) Hongkong and the insular possessions

the United States 135,000 tons (137,160 met- which the British Empire now holds or may ric tons); for the British Empire 135,000 tons hereafter acquire in the Pacific Ocean, east of (137,160 metric tons); for France 60,000 tons the meridian of 110° east longitude, except

(60,960 metric tons); for Italy 60,000 tons (a) those adjacent to the coast of Canada, (60,960 metric tons); for Japan 81,000 (b) the Commonwealth of Australia and its

tons (82,296 metric tons).... | Territories, and (c) New Zealand;

ART. IX. No aircraft carrier exceeding 27,- (3) The following insular territories and O00 tons (27,432 metric tons) standard dis- possessions of Japan in the Pacific Ocean, to placement shall be acquired by, or constructed wit: the Kurile Islands, the Bonin Islands, by, for or within the jurisdiction of, any of _Amami-Oshima, the Loochoo Islands, For-

the Contracting Powers. .. . mosa and the Pescadores, and any insular ART. XI. No vessel of war exceeding territories or possessions in the Pacific Ocean

10,000 tons (10,160 metric tons) standard dis- which Japan may hereafter acquire.

placement, other than a capital ship or air- The maintenance of the status quo under craft carrier, shall be acquired by, or con- the foregoing provisions implies that no new structed by, for, or within the jurisdiction of, fortifications or naval bases shall be estabany of the Contracting Powers. Vessels not lished in the territories and possessions specspecifically built as fighting ships nor taken ified; that no measures shall be taken to in time of peace under government control _ increase the existing naval facilities for the refor fighting purposes, which are employed on pair and maintenance of naval forces, and fleet duties or as troop transports or in some _ that no increase shall be made in the coast other way for the purpose of assisting in the defences of the territories and possessions prosecution of hostilities otherwise than as above specified. This restriction, however,

THE FourR-POWER TREATY 363

. . PART 3.

does not preclude such repair and replacement

of worn-out weapons and equipment as is

customary in naval and military establish- SEC. I. ments in time of peace. ... RULES FOR REPLACEMENT.

CHAPTER Il (a) Capital ships and aircraft carriers twenty years after the date of their comple-

PART 1. tion may, except as otherwise provided in

CAPITAL SHIPS WHICH MAY Article VIII and in the tables in Section II BE RETAINED BY THE of this Part, be replaced by new construction, CONTRACTING POWERS but within the limits prescribed in Article IV

[Lists] and Article VII. The keels of such new conPART 2 struction may, except as otherwise provided

in Article VIII and in the tables in Section

RULES FOR SCRAPPING VESSELS OF WAR. II of this Part, be laid down not earlier than

The following rules shall be observed for seventeen years from the date of completion the scrapping of vessels of war which are to of the tonnage to be replaced, provided, howbe disposed of in accordance with Articles II ever, that no capital ship tonnage, with the

, and III. exception of the ships referred to in the third I. A vessel to be scrapped must be placed in paragraph of Article II, and replacement ton-

such condition that it cannot be put to nage specifically mentioned in Section II of

combatant use. this Part, shall be laid down until ten years

one of the following ways: |

II, This result must be finally effected in any from November 1 2,1921.... (a) Permanent sinking of the vessel;

(b) Breaking the vessel up. CHAPTER III This shall always involve the destruction ART. XXIII. The present Treaty shall reor removal of all machinery, boilers and main in force until December 31st, 1936, and armour, and all deck, side and bottom in case none of the Contracting Powers shall

plating; have given notice two years before that date (c) Converting the vessel to target use of its intention to terminate the Treaty, it exclusively. ... Not more than one shall continue in force until the expiration of

capital ship may be retained for this pur- two years from the date on which notice of pose at one time by any of the Contract- termination shall be given by one of the Con-

ing Powers. ... tracting Powers. ...

448. THE FOUR-POWER TREATY December 13, 1921. In Force, August 17, 1923 (U.S. Statutes at Large, Vol. XXXXIII, p. 1646 ff.) This was one of the treaties that emerged from insular dominions in the region of the Pacific the Washington Arms Conference. For references, Ocean,

see under Doc. No. 447. Have determined to conclude a treaty to this effect and have appointed as their pleni-

Treaty between the United States, the potentiaries: .. . British Empire, France and Japan re- Who, having communicated their full powlating to their Insular Possessions and ers, found in good and due form, have agreed

Insular Dominions in the Region of as follows:

the Pacific Ocean I. The high contracting parties agree as

The United States of America, the British between themselves to respect their rights in

Empire, France and Japan, relation to their insular possessions and inWith a view to the preservation of the gen- sular dominions in the region of the Pacific eral peace and the maintenance of their rights Ocean.

in relation to their insular possessions and If there should develop between any of the

364 DOCUMENTS OF AMERICAN HISTORY high contracting parties a controversy arising III. This treaty shall remain in force for out of any Pacific question and involving 10 years from the time it shall take effect, their said rights which is not satisfactorily and after the expiration of said period it shall settled by diplomacy and is likely to affect continue to be in force subject to the right the harmonious accord now happily subsisting of any of the high contracting parties to terbetween them, they shall invite the other high minate it upon 12 months’ notice.

contracting parties to a joint conference to IV. This treaty shall be ratified as soon as which the whole subject will be referred for possible in accordance with the constitu-

consideration and adjustment. tional methods of the high contracting par-

II. If the said rights are threatened by the ties and shall take effect on the deposit of aggressive action of any other power, the ratifications, which shall take place at Washhigh contracting parties shall communicate ington, and thereupon the agreement between with one another fully and frankly in order Great Britain and Japan, which was conto arrive at an understanding as to the most cluded at London on July 13, 1911, shall terefficient measures to be taken, jointly or sep- miunate.... arately, to meet the exigencies of the particular situation.

449. THE NINE-POWER TREATY February 6, 1922. Proclaimed August 5, 1925 (U.S. Statutes at Large, Vol. XXXXIV, p. 2113 ff.) This treaty, one of several to emerge from the JI. The Contracting Powers, other than China, Washington Conference, apparently gave in- agree: ternational sanction to the traditional Open Door (1) To respect the sovereignty, the independpolicy toward China. The principles which this ence and the territorial and administrative treaty attempted to establish were, however, integrity of China:

shortlyand violated by concerning Japan. A China number 0) T €‘de the an fullest and : treaties resolutions wereof(2)other To provide fullest most unem adopted by the Conference. Of these the most barrassed opportunity to China to develop important were: a treaty relating to the Chinese and maintain for herself an effective and tariff; an adjustment of the Shantung contro- stable government; versy; and a resolution providing for a com- (3) To use their influence for the purpose of mission to study the problem of extra- effectually establishing and maintaining the territoriality in China. For references, see Doc. principle of equal opportunity for the com-

No. 447. merce and industry of all nations throughout

A Treaty . . . relating to principles and poli- _ the territory of China; cies to be followed in matters concerning (4) To refrain from taking advantage of con-

China. ditions in China in order to seek special rights

The United States of America, Belgium, the or privileges which would abridge the rights British Empire, China, France, Italy, Japan, of subjects or citizens of friendly States, and

the Netherlands and Portugal: from countenancing action inimical to the seDesiring to adopt a policy designed to sta- curity of such States. bilize conditions in the Far East, to safeguard IJ. The Contracting Powers agree not to enthe rights and interests of China, and to pro- ter into any treaty, agreement, arrangement, mote intercourse between China and the other or understanding, either with one another, or, Powers upon the basis of equality of oppor- individually or collectively, with any Power

tunity; or Powers, which would infringe or impair the Have resolved to conclude a treaty for that principles stated in Article I. purpose and to that end have appointed as III. With a view to applying more effectually

their respective Plenipotentiaries: .. . the principles of the Open Door or equality Who, having communicated to each other of opportunity in China for the trade and intheir full powers, found to be in good and due _ dustry of all nations, the Contracting Powers,

form, have agreed as follows: other than China, agree that they will not

THe NINE-POWER TREATY 365 seek nor support their respective nationals, respect of any of the aforesaid railways over

in seeking which they or their nationals are in a posli(a) any arrangement which might purport tion to exercise any control in virtue of any to establish in favor of their interests any concession, special agreement or otherwise. general superiority of rights with respect to VI. The Contracting Powers, other than commercial or economic development in any China, agree fully to respect China’s rights

designated region of China. as a neutral in time of war to which China (b) any such monopoly or preference as is not a party; and China declares that when would deprive the nationals of any other she is a neutral she will observe the obligaPower of the right of undertaking any legiti- tions of neutrality. mate trade or industry in China, or of par- VII. The Contracting Powers agree that, ticipating with the Chinese Government, or whenever a situation arises which in the opinwith any local authority, in any category of ion of any one of them involves the applica-

public enterprise, or which by reason of its tion of the stipulations of the present scope, duration or geographical extent is cal- Treaty, and renders desirable discussion of culated to frustrate the practical application such application, there shall be full and frank

of the principle of equal opportunity. communication between the Contracting It is understood that the foregoing stipula- Powers concerned. tions of this Article are not to be so construed VIII. Powers not signatory to the present as to prohibit the acquisition of such prop- Treaty, which have Governments recognized erties or rights as may be necessary to the by the Signatory Powers and which have conduct of a particular commercial, indus- treaty relations with China, shall be invited trial, or financial undertaking or to the en- to adhere to the present Treaty. To this end

couragement of invention and research. the Government of the United States will China undertakes to be guided by the prin- make the necessary communications to nonciples stated in the foregoing stipulations of signatory Powers and will inform the Conthis Article in dealing with applications for tracting Powers of the replies received. Adeconomic rights and privileges from Govern- herence by any Power shall become effective ments and nationals of all foreign countries, on receipt of notice thereof by the Governwhether parties to the present Treaty or not. ment of the United States.

IV. The Contracting Powers agree not to IX. The present Treaty shall be ratified by support any agreements by their respective the Contracting Powers in accordance with nationals with each other designed to create their respective constitutional methods and Spheres of Influence or to provide for the en- _ shall take effect on the date of the deposit of : joyment of mutually exclusive opportunities all the ratifications, which shall take place at in designated parts of Chinese territory. Washington as soon as possible. The GovV. China agrees that, throughout the whole ernment of the United States will transmit of the railways in China, she will not exer- to the other Contracting Powers a certified cise or permit unfair discrimination of any copy of the procés-verbal of the deposit of kind. In particular there shall be no discrimi- __ratifications.

nation whatever, direct or indirect, in respect The present Treaty, of which the French of charges or of facilities on the ground of the and English texts are both authentic, shall nationality of passengers or the countries remain deposited in the archives of the Govfrom which or to which they are proceeding, ernment of the United States, and duly ceror the origin or ownership of goods or the tified copies thereof shall be transmitted by country from which or to which they are con- that Government to the other Contracting signed, or the nationality or ownership of the Powers. ship or other means of conveying such pas- In faith whereof the above-named Pleniposengers or goods before or after their trans- tentiaries have signed the Present Treaty.

port on the Chinese railways. Done at the City of Washington the sixth

The Contracting Powers, other than day of February One Thousand Nine Hun-

China, assume a corresponding obligation in dred and Twenty-Two.

366 DOCUMENTS OF AMERICAN History 450. WOLFF PACKING CO. v. COURT OF INDUSTRIAL RELATIONS OF KANSAS

262 U. S. 522 1923

Writ of Error to Supreme Court of Kansas. Court Act is that the state, representing the people, is so much interested in their peace, Tart, C. J. This case involves the validity health, and comfort, that it may compel those of the Court of Industrial Relations Act of engaged in the manufacture of food and cloth-

Kansas (1920). The act declares the follow- ing, and the production of fuel, whether ing to be affected with a public interest: First, | owners or workers, to continue in their busimanufacture and preparation of food for hu- ness and employment on terms fixed by an

man consumption; .. . fifth, public utilities agency of the state, if they cannot agree. and common carriers. The act vests an indus- Under the construction adopted by the state trial court of three judges with power, upon supreme court, the act gives the Industrial its Own initiative or on complaint, to summon Court authority to permit the owner or emthe parties and hear any dispute over wages ployer to go out of the business if he shows or other terms of employment in any such that he can only continue on the terms fixed industry, and if it shall find the peace and at such heavy loss that collapse will follow; health of the public imperiled by such con- but this privilege, under the circumstances, troversy, it is required to make findings and is generally illusory. A laborer dissatisfied fix the wages and other terms for the future with his wages is permitted to quit, but he

conduct of the industry... . may not agree with his fellows to quit, or The Charles Wolff Packing Co., the plain- combine with others to induce them to quit.

tiff in error, is a corporation of Kansas en- These qualifications do not change the esgaged in slaughtering hogs and cattle and pre- sence of the act. It curtails the right of the paring the meat for sale and shipment. ... employer, on the one hand, and that of the In January, 1921, the president and secre- employee, on the other, to contract about his tary of the Meat Cutters Union filed a com- affairs. This is part of the liberty of the inplaint with the Industrial Court against the dividual protected by the guaranty of the due Packing Company, respecting the wages its process clause of the 14th Amendment... . employees were receiving. The Company ap- It is manifest from an examination of the peared and answered and a hearing was had. cases cited . . . that the mere declaration by The Court made findings, including one of an a legislature that a business is affected with a emergency, and an order as to wages, in- public interest is not conclusive of the quescreasing them over the figures to which the — tion whether its attempted regulation on that company had recently reduced them. The ground is justified. The circumstances of its Company refused to comply with the order, alleged change from the status of a private and the Industrial Court then instituted man- business and its freedom from regulation into damus proceedings in the Supreme Court one in which the public have come to have an

to compel compliance. ... The Industrial interest, are always a subject of judicial inCourt conceded that the Wolff Company could quiry... . not operate on the schedule fixed without a It has never been supposed, since the loss, but relied on the statement by its presi- adoption of the Constitution, that the busident that he hoped for more prosperous times. ness of the butcher, or the baker, the tailor, The Packing Company brings this case the woodchopper, the mining operator, or the here on the ground that the validity of the miner, was clothed with such a public interIndustrial Court Act was upheld, although — est that the price of his product or his wages as in conflict with the provision of the 14th could be fixed by state regulation. .. .

Amendment that no State shall deprive any To say that a business is clothed with a person of liberty or property without due public interest is not to determine what regu-

process of law... . lation is permissible in view of the private The necessary postulate of the Industrial rights of the owner. The extent to which an

ADKINS V. CHILDREN’S HOSPITAL 367 inn or cab system may be regulated may differ specified are declared to be necessary for the widely from that allowable as to a railroad public peace, health, and general welfare, and or other common carrier. It is not a matter of all are forbidden to hinder, limit, or suspend legislative discretion solely. It depends upon them. Sec. 7 gives the Industrial Court power, the nature of the business, on the feature in case of controversy between employers and which touches the public, and on the abuses workers which may endanger the continuity reasonably to be feared. To say that business _ or efficiency of service, to bring the employer is clothed with a public interest is not to im- and employee before it, and after hearing and port that the public may take over its entire investigation, to fix the terms and conditions management and run it at the expense of the between them. The employer is bound by owner. The extent to which regulation may this act to pay the wages fixed; and while the reasonably go varies with different kinds of | worker is not required to work at the wages business. The regulation of rates to avoid fixed, he is forbidden on penalty of fine or

monopoly, is one thing. The regulation of imprisonment, to strike against them, and wages is another. A business may be of such thus is compelled to give up that means of character that only the first is permissible, putting himself on an equality with his emwhile another may involve such a possible ployer which action in concert with his fel-

danger of monopoly on the one hand, and lows gives him... . such disaster from stoppage on the other, that The minutely detailed government super-

both come within the public concern and vision, including that of their relations to

power of regulation. their employees, to which the railroads of the

. If, as, in effect, contended by counsel for country have been gradually subjected by the state, the common callings are clothed Congress through its power over interstate with a public interest by a mere legislative commerce, furnishes no precedent for regudeclaration, which necessarily authorizes full lation of the business of the plaintiff, whose and comprehensive regulation within legisla- classification as public is, at the best, doubttive discretion, there must be a revolution in ful. It 1s not too much to say that the ruling the relation of government to general busi- in |Vzlson v. New went to the borderline, alness. This will be running the public-interest though it concerned an interstate common

argument into the ground. ... It willbe im- carrier in the presence of a nation-wide possible to reconcile such result with the free- emergency and the possibility of great disdom of contract and of labor secured by the « aster. Certainly there is nothing to justify

14th Amendment. extending the drastic regulation sustained in This brings to the nature and purpose of that exceptional case to the one before us.

the regulation under the Industrial Court Act. We think that Industrial Court Act... The avowed object is continuity of food, in conflict with the 14th Amendment. Judgeclothing, and fuel supply. By sec. 6 reason- ment reversed. able continuity and efficiency of the industries

451. ADKINS v. CHILDREN’S HOSPITAL 261 U. S. 525 1923

Appeal from the Court of Appeals for the District preme Court and Minimum Wage Legislation, of Columbia. Suit to enjoin the Wage Board for pub. by the National Consumers’ League. the District of Columbia from enforcing its orders

fixing minimum wages for women under authority SUTHERLAND, J. The question presented

of an statute act of Congress of September 19,to1918. fo getermination by these appeals is the The authorized the Board ascertain var and declare standards of minimum wages for constitutionality of the Act of September women and minors adequate to the cost of liv- 19, 1918, providing for the fixing of minimum ing and to maintain them in health and protect W48€S for women and children in the Dis-

their morals. The Court of Appeals affirmed trict of Columbia... . decrees granting the injunction. See The Su- It is declared that the purposes of the act

368 DOCUMENTS OF AMERICAN HISTORY are “to protect the women and minors of legally as capable of contracting for themthe District from conditions detrimental to selves as men. It forbids two parties having their health and morals, resulting from wages lawful capacity—under penalties as to the

which are inadequate to maintain decent employer—to freely contract with one anstandards of living; and the act in each of other in respect of the price for which one its provisions and in its entirety, shall be in- shall render service to the other in a purely

terpreted to effectuate these purposes.” ... private employment where both are willing, } The statute now under consideration is perhaps anxious, to agree, even though the attacked upon the ground that it authorizes consequence may be to oblige one to surrender

an unconstitutional interference with the a desirable engagement and the other to disfreedom of contract included within the pense with the services of a desirable emguaranties of the due process clause of the ployee. The price fixed by the board need have Sth Amendment. That the right to contract no relation to the capacity or earning power about one’s affairs is a part of the liberty of of the employee, the number of hours which the individual protected by this clause is may happen to constitute the day’s work, the settled by the decisions of this Court and is character of the place where the work is to be no longer open to question. Within this lib- done, or the circumstances or surroundings erty are contracts of employment of labor. of the employment; and, while it has no other In making such contracts, generally speaking, basis to support its validity than the assumed the parties have an equal right to obtain from _ necessities of the employee, it takes no aceach other the best terms they can as the re- count of any independent resources she may

sult of private bargaining... . have. It is based wholly on the opinions of There is, of course, no such thing as abso- the members of the board and their advisers

lute freedom of contract. It is subject to a —perhaps an average of their opinions, if great variety of restraints. But freedom of they do not precisely agree—as to what will contract is, nevertheless, the general rule and _ be necessary to provide a living for a woman,

restraint the exception; and the exercise of keep her in health and preserve her morals. It legislative authority to abridge it can be justi- applies to any and every occupation in the fied only by the existence of exceptional cir- District, without regard to its nature or the cumstances. Whether these circumstances character of the work. exist in the present case constitutes the ques- The standard furnished by the statute for tion to be answered. It will be helpful to this the guidance of the board is so vague as to be end to review some of the decisions where the impossible of practical application with any interference has been upheld and consider the reasonable degree of accuracy. What is sufgrounds upon which they rest. [Here an ficient to supply the necessary cost of living

elaborate review of the decisions.] ... for a woman worker and maintain her in

If now, in the light furnished by the fore- good health and protect her morals is obvigoing exceptions to the general rule forbid- ously not a precise or unvarying sum—not ding legislative interference with freedom of even approximately so. The amount will decontract, we examine and analyze the statute pend upon a variety of circumstances: the in question, we shall see that it differs from individual temperament, habits of thrift, care, them in every material respect. It is not a ability to buy necessaries intelligently, and law dealing with any business charged with a whether the woman live alone or with her public interest, or with public work, or to family. To those who practice economy, a meet and tide over a temporary emergency. given sum will afford comfort, while to those It has nothing to do with the character, meth- of a contrary habit the same sum will be ods or periods of wage payments. It does not wholly inadequate. The codperative econprescribe hours of labor or conditions under omies of the family group are not taken into which labor is to be done. It is not for the account though they constitute an important protection of persons under legal disability or consideration in estimating the cost of living, for the prevention of fraud. It is simply and for it 1s obvious that the individual expense exclusively a price-fixing law, confined to will be less in the case of a member of a famadult women (for we are not now considering ily than in the case of one living alone. The

the provisions relating to minors), who are relation between earnings and morals is not

ADKINS V. CHILDREN’S HOSPITAL 369 capable of standardization. It cannot be without adequate means of livelihood. To the shown that well paid women safeguard their extent that the sum fixed exceeds the fair morals more carefully than those who are value of the services rendered, it amounts to poorly paid. Morality rests upon other con- a compulsory exaction from the employer for siderations than wages; and there is, cer- the support of a partially indigent person, for tainly, no such prevalent connection between whose condition there rests upon him no pethe two as to justify a broad attempt to ad- culiar responsibility, and therefore, in effect, just the latter with reference to the former. arbitrarily shifts to his shoulders a burden As a means of safeguarding morals the at- which, if it belongs to anybody, belongs to tempted classification in our opinion, is with- society as a whole.

out reasonable basis. No distinction can be The feature of this statute which perhaps made between women who work for others more than any other, puts upon it the stamp and those who do not; nor is there ground for of invalidity is that it exacts from the emdistinction between women and men, for, cer- ployer an arbitrary payment for a purpose tainly, if women require a minimum wage to and upon a basis having no causal connection

preserve their morals men require it to pre- with his business, or the contract or the serve their honesty. For these reasons, and work the employee engages to do. The deothers which might be stated, the inquiry in clared basis as already pointed out, is not the respect of the necessary cost of living and of value of the service rendered but the exthe income necessary to preserve health and traneous circumstances that the employee morals, presents an individual and not a com-__—ineeds to get a prescribed sum of money to posite question, and must be answered for insure her subsistence, health and morals. The each individual considered by herself and not ethical right of every worker, man or woman, by a general formula prescribed by a statu- to a living wage, may be conceded. One of

tory bureau... . the declared and important purposes of trade

The law takes account of the necessities of organizations is to secure it. And with that only one party to the contract. It ignores the principle and with every legitimate effort to necessities of the employer by compelling him realize it in fact, no one can quarrel; but the to pay not less than a certain sum, not only fallacy of the proposed method of attaining whether the employee is capable of earning it is that it assumes that every employer is it, but irrespective of the ability of his busi- bound at all events to furnish it... . ness to sustain the burden, generously leaving It is said that great benefits have resulted him, of course, the privilege of abandoning from the operation of such statutes, not alone his business as an alternative for going on at in the District of Columbia but in the seva loss. Within the limits of the minimum sum, eral States, where they have been in force. he is precluded, under penalty of fine andim- A mass of reports, opinions of special ob-

prisonment, from adjusting compensation to servers and students of the subject, and the : the differing merits of his employees. It com- like, has been brought before us in support pels him to pay at least the sum fixed in any ' of this statement, all of which we have found

event, because the employee needs it, but interesting, but only mildly persuasive. .. . requires no service of equivalent value from Finally, it may be said that if, in the inter-

the employee. It therefore undertakes to est of the public welfare, the police power solve but one-half of the problem. The other may be invoked to justify the fixing of a half is the establishment of a corresponding minimum wage, it may, when the public welstandard of efficiency, and this forms no part fare is thought to require it, be invoked to of the policy of the legislation, although in justify a maximum wage. The power to fix practice the former half without the latter high wages connotes, by like reasoning, the must lead to ultimate failure, in accordance power to fix low wages. If, in the face of the with the inexorable law that no one can con- guaranties of the Sth Amendment, this form tinue indefinitely to take out more than he of legislation shall be legally justified, the puts in without ultimately exhausting the sup- field for the operation of the police power ply. The law . . . takes no account of periods will have been widened to a great and danof stress and business depression, of crippling gerous degree. If, for example, in the opinlosses, which may leave the employer himself ion of future lawmakers, wages in the build-

370 DOCUMENTS OF AMERICAN HISTORY ing trades shall become so high as to preclude greedy employer. The evils of the sweating people of ordinary means from building and system and of the long hours and low wages owning homes, an authority which sustains which are characteristic of it are well known. the minimum wage will be invoked to sup- Now, I agree that it is a disputable question port a maximum wage for building laborers in the field of political economy, how far a and artisans, and the same argument which _ statutory requirement of maximum hours or has been here urged to strip the employer of minimum wages may be a useful remedy for his constitutional liberty of contract in one _ these evils, and whether it may not make the direction will be utilized to strip the employee case of the oppressed employee worse than it of his constitutional liberty of contract in the was before. But it is not the function of this opposite direction. A wrong decision does not court to hold Congressional acts invalid sim-

end with itself; it is a precedent, and, with ply because they are passed to carry out the swing of sentiment, its bad influence may economic views which the court believes to run from one extremity of the arc tothe other. be unwise or unsound... . It has been said that legislation of the kind The right of the legislature under the Sth now under review is required in the interest and 14th Amendments to limit the hours of of social justice, for whose ends freedom of employment on the score of the health of the

contract may lawfully be subjected to re- employee, it seems to me, has been firmly straint. The liberty of the individual to do as _ established. As to that, one would think, the he pleases, even in innocent matters, is not line had been pricked out so that it has beabsolute. It must frequently yield to the com- come a well-formulated rule... . mon good, and the: line beyond which the However, the opinion herein does not overpower of interference may not be pressed is___ rule the Bunting case in express terms, and

neither definite nor unalterable but may be therefore I assume that the conclusion in made to move, within limits not well defined, this case rests on the distinction between a with changing need and circumstance. Any minimum of wages and a maximum of hours attempt to fix a rigid boundary would be un- in the limiting of liberty to contract. I regret wise and futile. But, nevertheless, there are to be at variance with the court as to the limits to the power, and when these have been substance of this distinction. .. . passed, it becomes the plain duty of the If it be said that long hours of labor have courts in the proper exercise of their au- a more direct effect upon the health of the thority to so declare. To sustain the individ- employee than the low wage, there is every ual freedom of action contemplated by the respectable authority from close observers, Constitution, is not to strike down the com-_ disclosed in the record and in the literature mon good but to exalt it; for surely the good on the subject, quoted at length in the briefs, of socicty as a whole cannot be better served that they are equally harmful in this regard;

: than by the preservation against arbitrary Congress took this view, and we cannot say restraint of the liberties of its constituent it was not warranted in so doing... .

members. Houtmes, J., dissenting: The question in It follows from what has been said that the — this case 1s the broad one, whether Congress

act in question passes the limit prescribed by can establish minimum rates of wages for the Canstitution, and, accordingly, the decrees women in the District of Columbia, with due

of the court below are provision for special circumstances, or

Affirmed. whether we must say that Congress has no

Tart, C. J. dissenting. .. . Legislatures, in power to meddle with the matter at all. To limiting freedom of contract betwcen em- me, notwithstanding the deference due to the ployee and employer by a minimum wage, _ prevailing judgement of the court, the power proceed on the assumption that employees in of Congress seems absolutely free from doubt. the class receiving least pay are not upon a The end—to remove conditions leading to ill

full level of equality of choice with their health, immorality, and the deterioration of employer, and in their necessitous circum- the race—no one would deny to be within the stances are prone to accept pretty much any- scope of constitutional legislation. The means thing that is offered. They are peculiarly sub- are means that have the approval of Congress,

ject to the overreaching of the harsh and of many states, and of those governments

TEAPOT DOME 371 from which we have learned our greatest les- tioned in the text that we have to construe. sons. When so many intelligent persons who It is merely an example of doing what you have studied the matter more than any of us want to do, embodied in the word “liberty”. can, have thought that the means are effective But pretty much all law, consists in forbidand are worth the price, it seems to me im- ding men to do some things that they want to possible to deny that the belief reasonably do, and contract is no more exempt from law

may be held by reasonable men. ... But, than other acts... . in the present instance, the only objection [Cites numerous examples. ]

that can be urged is founded in the vague The criterion of constitutionality is not contours of the 5th Amendment, prohibiting whether we believe the law to be for the pub-

the depriving any person of liberty or of lic good. We certainly cannot be prepared to property without due process of law. To that deny that a reasonable man reasonably might

I turn. have that belief, in view of the legislation of The earlier decisions upon the same words Great Britain, Victoria, and a number of the

in the 14th Amendment began within our states of this Union. The belief is fortified memory, and went no farther than an unpre- by a very remarkable collection of documents tentious assertion of the liberty to follow the submitted on behalf of the appellants, maordinary callings. Later that innocuous gen- terial here, I conceive, only as showing that erality was expanded into the dogma Liberty the belief reasonably may be held... . of Contract. Contract is not specially men-

452. KEAPOT DOME Joint Resolution of Congress Respecting Prosecution for Cancellation of Oil Leases February 8, 1924 (U. S. Statutes at Large, Vol. XX XXIII, p. 5) The scandals of the Harding were no less shock- by the Government of the United States, ing than those of the Grant administration. Of through Albert B. Fall, Secretary of the Inall the revelations, none more profoundly stirred terior, and Edwin Denby, Secretary of the the indignation of the nation than those con- Navy, as lessor, to the Mammoth Oil Co., as corning the leasing of rich oil reserves to private lessee, and that certain contract between the of the Interior. These reserves, originally under Government of the United States and the Pan the control of the Department of the Navy, American Petroleum & Transport Co., dated were transferred to the Department of the In- April 25, 1922, signed by Edward C. Finney, terior. In 1922, Secretary Albert B. Fall of this Acting Secretary of the Interior, and Edwin

interests by the Secretaries of the Navy and ole, 5. Department secretly leased the Teapot Dome Denby, secretary of the Navy, relating

reserve to Harry F. Sinclair, and the Elk Hill among other things to the construction of oil reserve to E. L. Doheny. The civil suits instituted tanks at Pearl Harbor, Territory of Hawaii, for the cancellation of these leases were finally an that certain lease of naval reserve No. 1, successful; on the criminal charges arising from. . od corruption, Secretary Fall was convicted and 7” the State of California, bearing date Deimprisoned. See, U.S. 68 Cong. Ist. Sess. Sen, Cember 11, 1922, made in form by the Gov-

Rep. 794; M. E. Ravage, Teapot Dome. ernment of the United States through Albert

B. Fall, Secretary of the Interior, and Edwin A joimt resolution directing the President Denby, Secretary of the Navy, as lessor, to to institute and prosecute suits to cancel cer- the Pan American Petroleum Co., as lessee, tain leases of oil lands and incidental con- were executed under circumstances indicating

tracts, and for other purposes. fraud and corruption; and

Whereas it appears from evidence taken by Whereas the said leases and contract were the Committee on Public Lands and Surveys entered into without authority on the part of of the United. States Senate that certain lease the officers purporting to act in the execution of naval reserve No. 3, in the State of Wyo- of the same for the United States and in v10ming, bearing date April 7, 1922, made inform lation of the laws of Congress; and

372 DOCUMENTS OF AMERICAN HISTORY Whereas such leases and contract were tract and all contracts incidental or supplemade in defiance of the settled policy of the mental thereto, to enjoin further extraction of Government adhered to through three suc- oil from the said reserves under said leases or cessive administrations, to maintain in the from the territory covered by the same, to seground a great reserve supply of oil adequate cure any further appropriate incidental relief, to the needs of the Navy in any emergency and to prosecute such other actions or prothreatening the national security: Therefore ceedings, civil and criminal, as may be war-

beResolved, it ranted by the facts in relation to the making etc., That the said leases and _ of the said leases and contract. contract are against the public interest and And the President is further authorized that the lands embraced therein should be re- and directed to appoint, by and with the adcovered and held for the purpose to which vice and consent of the Senate, special coun-

they were dedicated; and sel who shall have charge and control of the

Resolved further, That the President of the prosecution of such litigation, anything in United States be, and he hereby is, authorized the statutes touching the powers of the atand directed immediately to cause suit to be torney General of the Department of Justice instituted and prosecuted for the annulment _ to the contrary notwithstanding. and cancellation of the said leases and con-

453. THE IMMIGRATION ACT OF 1924 May 26, 1924 (U. S. Bureau of Immigration, Annual Report of the Commissioner-General of Immigration, 1924, p. 24 ff.) The quotas established by the immigration act United States according to the census of 1910, of 1921, Doc. No. 422, were unsatisfactory for it being also provided that not more than 20

two reasons: they admitted too large a number per cent of any annual quota could be adof immigrants; they did not discriminate suf- itted in any one month. Under the act of ficiently in favor of immigration from Northern 1924 the number of each nationality who may

and Western Europe. The act of 1924 sought to be admitted ly is limited to 2 t remedy the first defect by reducing the per- © acmitted annuaily 1s AMI 0 @ per cen

centage of immigrants admitted in relation to of the population of such nationality resident nationals already in the country from three to I the United States according to the census two, and remedied the second by establishing of 1890, and not more than 10 per cent of any 1890 rather than 1910 as the basic date. The annual quota may be admitted in any month report and summary of the law of 1924 is given except in cases where such quota is less than in lieu of the law itself for purposes of con- 399 for the entire year.

ciseness. Under the act of May, 1921, the quota ... The “Immigration act of 1924”... area was limited to Europe, the Near East,

which supplants the so-called quota limit act Africa, and Australasia. The countries of of May 19, 1921, the latter having expired North and South America, with adjacent isby limitation at the close of the fiscal year lands, and countries immigration from which just ended, makes several very important was otherwise regulated, such as China, Japan, changes not only in our immigration policy and countries within the Asiatic barred zone, but also in the administrative machinery of were not within the scope of the quota law. the Immigration Service. Some of the more Under the new act, however, immigration important changes in these respects will be from the entire world, with the exception of

briefly referred to. the Dominion of Canada, Newfoundland, the

It will be remembered that the quota limit Republic of Mexico, the Republic of Cuba, act of May, 1921, provided that the number _ the Republic of Haiti, the Dominican Repubof aliens of any nationality admissible to the lic, the Canal Zone, and independent counUnited States in any fiscal year should be _ tries of Central and South America, is subject limited to 3 per cent of the number of persons to quota limitations. The various quotas esof such nationality who were resident in the — tablished under the new law are shown in the

THE IMMIGRATION AcT oF 1924 373 following proclamation of the President, is- Quota sued on the last day of the present fiscal year: 1924-1925 (3,4) cececececeeeeeees 121

By THE PRESIDENT OF THE UNITED STATES Austria verre eee see ees 78°

or AMERICA Belgium (5) .........002- 512 Bhutan ...... ec. c ee eee 100

A PROCLAMATION Bulgaria .............005. 100 Whereas it is provided in the act of Con- Cameroon (proposed British

gress approved May 26, 1924, entitled “An mandate) .............. 100 act to limit the immigration of aliens into the Cameroon (French mandate) 100

United States, and for other purposes” that— China ............-2222., 100 “The annual quota of any nationality shall Czechoslovakia ........... 3,073

be two per centum of the number of foreign- Danzig, Free City of ...... 228 born individuals of such nationality resident Denmark (5,6) .......... 2,789 in continental United States as determined Egypt .....c.ceccecceeee 100

by the United States census of 1890, but the Esthonia ................. 124

minimum quota of any nationality shall be Ethiopia (Abyssinia) ...... 100

100 (Sec. 11(a)). .. . Finland .................. 170 “The Secretary of State, the Secretary of France (1, 5,6) ........2. 3,954

Commerce, and the Secretary of Labor, Germany ................ 51,227

jointly, shall, as soon as feasible after the en- Great Britain and Northern actment of this act, prepare a statement show- Ireland (1, 3, 5,6) ...... 34,007

ing the number of individuals of the various Greece ...........--.. 2. 100 , nationalities resident in continental United Hungary .........0.0005. 473 | States as determined by the United States Iceland ...........--..... 100

census of 1890, which statement shall be the India (3) ...... cece eee 100 population basis for the purposes of subdi- Iraq (Mesopotamia) ...... 100

vision (a) of section 11 (sec. 12(b)). Irish Free State (3) ....... 28,567 “Such officials shall, jointly, report annu- Italy, including Rhodes, Do-

ally to the President the quota of each na- dekanesia, and Castellotionality under subdivision (a) of section 11, rizzo (5) Liveeeeeeceeee 3,845

together with the statements, estimates, and Japan .........-...--.... 100 revisions provided for in this section. The Latvia .......0.--0- 005, 142 President shall proclaim and make known the Liberia ................., 100

quotas so reported.” (Sec. 12 (e)). Liechtenstein ............. 100

Now, therefore, I, Calvin Coolidge, Presi- Lithuania ................ 344 dent of the United States of America acting Luxemburg ............... 100 under and by virtue of the power in me vested Monaco ................. 100 by the aforesaid act of Congress, do hereby Morocco (French and Span-

proclaim and make known that on and after ish Zones and Tangier) .. 100 July 1, 1924, and throughout the fiscal year Muscat (Oman) .......... 100 1924-1925, the quota of each nationality pro- Nauru (proposed British

vided in said Act shall be as follows: mandate) (4) .......... 100

Country or area of birth Nepal ..............0000, 100 Quota Netherlands (1, 5,6) ...... 1,648

1924-1925 New Zealand (including ap-

Afghanistan .............. 100 pertaining islands (3, 4) . 100 Albania ............c008, 100 Norway (5) .............. 6,453

Andorra ....... 0... ..008, 100 New Guinea, and other PaArabian peninsula (1, 2) ... 100 cic Islands under _pro-

Armenia .............0.. 124 posed Australian mandate

Australia, including Papua, (4) oe. eee. 100 Tasmania, and all islands Palestine (with Trans-Jordan,

appertaining to Australia proposed British mandate) 100

374 DOCUMENTS OF AMERICAN HISTORY Quota under the immigration laws of the United 1924-1925 States as quota immigrants, will be charged to

Persia (1) ..... cee ee eee 100 the quota of the country to which such colony Poland ...........2-0222-- 5,982 or dependency belongs or by which it is ad-

Portugal (1,5) ........... 503 ministered as a protectorate.

Ruanda and Urundi (Belgium 2. The quota-area denominated ‘Arabian mandate) ........e5.0-- 100 peninsula” consists of all territory except Rumania ..........e+.00- 603 Muscat and Aden, situated in the portion of Russia, European and Asiatic that peninsula and adjacent islands, to the (1) voce cee eee eee eee = 2,248 southeast of Iraq, of Palestine with Trans-

Samoa, Western (4) (pro- Jordan, and of Egypt. posed mandate of New 3. Quota immigrants born in the British Zealand) ........eeeeee 100 self-governing dominions or in the Empire of San Marino ...........46. 100 India, will be charged to the appropriate

Slam vo ee ee eee eee ees 100 quota rather than to that of Great Britain South Africa, Union of (3) . 100 and Northern Ireland. There are no quota

South West Africa (proposed restrictions for Canada and Newfound-

mandate of Union of land... .

South Africa) .......... 100 4. Quota immigrants eligible to citizenship Spain (5) .....seveeeeees 131 in the United States, born in a colony, de-

Sweden .........ecceeeeee 9,561 pendency, or protectorate of any country to Switzerland .............. 2,081 which a quota applies will be charged to the

Syria and The Lebanon quota of that country.

(French mandate) ...... 100 5. In contrast with the law of 1921, the Tanganyika (proposed Brit- immigration act of 1924 provides that perish mandate) ........... 100 sons born in the colonies or dependencies of Togoland (proposed British European countries situated in Central Amermandate) .......... eee 100 ica, South America, or the islands adjacent to Togoland (French mandate) 100 the American continents (except Newfound-

Turkey ... 0.0... cee eee 100 land and islands pertaining to Newfoundland, Yap and other Pacific islands Labrador and Canada), will be charged to the (under Japanese mandate) quota of the country to which such colony

(Cr 100 or dependency belongs.

Yugoslavia ....sesereeees OUT GENERAL NoTE.—The immigration quotas 1. (a) Persons born in the portions of Per- assigned to the various countries and quotasia, Russia, or the Arabian peninsula situated areas should not be regarded as having any within the barred zone, and who are admissi- _ political significance whatever, or as involving

ble under the immigration laws of the United recognition of new governments, or of new States as quota immigrants, will be charged boundaries, or of transfers of territory except to the quotas of these countries; and (b) per- as the United States Government has already sons born in the colonies, dependencies, or made such recognitioh in a formal and official

protectorates, or portions thereof, within the manner....

barred zone, of France, Great Britain, the CALVIN COOLIDGE.

Netherlands, or Portugal, who are admissible

454, THE LA FOLLETTE PLATFORM OF 1924 (K. Porter, ed. National Party Platforms, p. 516 ff.) The apparent failure of the Farmer-Labor the nominations and platforms of the two major movement in 1920 led to the disintegration of parties in 1924, offered the nomination on a that organization. Its place was taken by the _ third party ticket to Robert La Follette of WisConference for Progressive Political Action, consin, long leader of the progressive element which had the support of the Four Railroad in the Republican party. The American FederaBrotherhoods. The Conference, dissatisfied with tion of Labor, the Socialist Party, and other

Tut La FoLtLtetTtTeE PLATFORM OF 1924 375 minor organizations rallied to the La Follette ernment is a plain violation of the Constitu-

standard, and in the subsequent election he’ tion. ... polled 4,822,900 votes—the largest number ever

polled by a third party candidate. La Follette’s DISTRESS OF AMERICAN FARMERS Autobiography was written prior to this election: The present condition of American agriculthere is no adequate biography of La Follette but several are promised. See N. Fine, Labor ture constitutes an emergency of the gravest and Farmer Parties in the Uniled States, 1828- Character. The Department of Commerce re-

1928. port shows that during 1923 there was a steady and marked increase in dividends paid The great issue before the American peo- _ by the great industrial corporations. The same

ple today is the control of government and is true of the steam and electric railways and

industry by private monopoly. practically all other large corporations. On

For a generation the people have struggled the other hand, the Secretary of Agriculture patiently, in the face of repeated betrayals by reports that in the fifteen principal wheat successive administrations, to free themselves growing states more than 108,000 farmers from this intolerable power which has been — since 1920 have lost their farms through fore-

undermining representative government. closure or bankruptcy; that more than 122,Through control of government, monopoly 000 have surrendered their property without has steadily extended its absolute dominion legal proceedings, and that nearly 375,000

to every basic industry. have retained possession of their property

In violation of law, monopoly has crushed only through the leniency of their creditors, competition, stifled private initiative and in- making a total of more than 600,000 or 26 dependent enterprise, and without fear of percent of all farmers who have virtually been punishment now exacts extortionate profits bankrupted since 1920 in these fifteen states upon every necessity of life consumed by the alone.

public. Almost unlimited prosperity for the great

The equality of opportunity proclaimed by corporations and ruin and bankruptcy for the Declaration of Independence and asserted agriculture is the direct and logical result of and defended by Jefferson and Lincoln as the ' the policies and legislation which deflated the heritage of every American citizen has been farmer while extending almost unlimited displaced by special privilege for the few, credit to the great corporations; which prowrested from the government of the many. tected with exorbitant tariffs the industrial

magnates, but depressed the prices of the

FUNDAMENTAL RIGHTS IN DANGER farmers’ products by financial juggling while That tyrannical power which the American greatly increasing the cost of what he must people denied to a king, they will no longer buy; which guaranteed excessive freight rates endure from the monopoly system. The peo- to the railroads and put a premium on wasteple know they cannot yield to any group the ful management while saddling an unwarcontrol of the economic life of the nation and ranted burden on to the backs of the Ameripreserve their political liberties. They know can farmer; which permitted gambling in the monopoly has its representatives in the halls products of the farm by grain speculators to of Congress, on the Federal bench, and in the __ the great detriment of the farmer and to the executive departments; that these servile great profit of the grain gambler. agents barter away the nation’s natural resources, nullify acts of Congress by judicial A COVENANT WITH THE PEOPLE

veto and administrative favor, invade the Awakened by the dangers which menace people’s rights by unlawful arrests and un- their freedom and prosperity the American constitutional searches and seizures, direct our people still retain the right and courage to foreign policy in the interests of predatory exercise their sovereign control over their wealth, and make wars and conscript the sons government. In order to destroy the economic

of the common people to fight them. and political power of monopoly, which has The usurpation in recent years by the fed- come between the people and their governeral courts of the power to nullify laws duly ment, we pledge ourselves to the following enacted by the legislative branch of the gov-__ principles and policies:

376 DOCUMENTS OF AMERICAN History vice to relieve multi-millionaires at the ex-

THE HOUSE CLEANING pense of other tax payers, and favor a taxation 1. We pledge a complete housecleaning in policy providing for immediate reductions the Department of Justice, the Department upon moderate incomes, large increases in the

of the Interior, and the other executive de- inheritance tax rates upon large estates to partments. We demand that the power of the prevent the indefinite accumulation by inFederal Government be used to crush private heritance of great fortunes in a few hands;

monopoly, not to foster it. taxes upon excess profits to penalize profiteering, and complete publicity, under proper

NATURAL RESOURCES safeguards, of all Federal tax returns. 2. We pledge recovery of the navy’s oil re-

serves and all other parts of the public domain THE COURTS which have been fraudulently or illegally 5. We favor submitting to the people, for leased, or otherwise wrongfully transferred, their considerate judgment, a constitutional to the control of private interests; vigorous amendment providing that Congress may by

prosecution of all public officials, private enacting a statute make it effective over a citizens and corporations that participated in judicial veto. these transactions; complete revision of the We favor such amendment to the constituwater-power act, the general leasing act, and tion as may be necessary to provide for the all other legislation relating to the public do- election of all Federal Judges, without party main. We favor public ownership of the na- designation, for fixed terms not exceeding ten tion’s water power and the creation and de- years, by direct vote of the people. velopment of a national super-water-power’

system, including Muscle Shoals, to supply THE FARMERS

at actual cost light and power for the people 6. We favor drastic reduction of the exorand nitrate for the farmers, and strict public bitant duties on manufactures provided in the control and permanent conservation of all the Fordney-McCumber tariff legislation, the nation’s resources, including coal, irom and prohibiting of gambling by speculators and other ores, oil and timber lands, in the in- profiteers in agricultural products; the recon-

terest of the people. struction of the Federal Reserve and Federal

Farm Loan Systems, so as to eliminate con-

RAILROADS trol by usurers, speculators and international 3. We favor repeal of the Esch-Cummins financiers, and to make the credit of the narailroad law and the fixing of railroad rates tion available upon fair terms to all and withupon the basis of actual, prudent investment out discrimination to business men, farmers,

and cost of service... . and home-builders. We advocate the calling of a special session of Congress to pass legis-

TAX REDUCTION lation for the relief of American agriculture. 4. We favor reduction of Federal taxes We favor such further legislation as may be upon individual incomes and legitimate busi- needful or helpful in promoting and protectness, limiting tax exactions strictly to the re- ing co-operative enterprises. We demand that quirements of the government administered the Interstate Commerce Commission prowith rigid economy, particularly by the cur- ceed forthwith to reduce by an approximation tailment of the eight hundred million dollars to pre-war levels the present freight rates on now annually expended for the army and navy agricultural products, including live stock, in preparation for future wars; by the re- and upon the materials required upon Americovery of the hundreds of millions of dol- can farms for agricultural purposes.

lars stolen from the Treasury through fraudu- LABOR

lent war contracts and the corrupt leasing of the public resources; and by diligent action 7. We favor abolition of the use of injuncto collect the accumulated interest upon the — tions in labor disputes and declare for comeleven billion dollars owing us by foreign gov- plete protection of the right of farmers and

ernments. industrial workers to organize, bargain colWe denounce the Mellon tax plan as a de-__lectively through representatives of their own

PIERCE V. SOCIETY OF THE SISTERS 377 choosing, and conduct without hindrance co- intermediary of defenseless governments to a

operative enterprises. trading outpost for those interests and con-

We favor prompt ratification of the Child cession-seekers engaged in the exploitations of Labor amendment, and subsequent enactment weaker nations, as contrary to the will of the of a Federal law to protect children in indus- American people, destructive of domestic de-

try. ... velopment and provocative of war. We favor an active foreign policy to bring about a rePEACE ON EARTH vision of the Versailles treaty in accordance

12. We denounce the mercenary system of with the terms of the armistice, and to proforeign policy under recent administrations mote firm treaty agreements with all nations in the interests of financial imperialists, oil to outlaw wars, abolish conscription, drasmonopolies and international bankers, which _ tically reduce land, air and naval armaments, has at times degraded our State Department and guarantee public referendum on peace from its high service as a strong and kindly and war.

455. PIERCE v. SOCIETY OF THE SISTERS 268 U. S. 510 1925

Appeal from the District Court of United States junior colleges, and maintains orphanages for for Oregon. Suit to enjoin enforcement of Oregon the custody and control of children between

Compulsory Education Act of 1922 requiring eight and sixteen. In its primary schools

children to attend public schools. many children between those ages are taught McReEyNo.tps, J. These appeals are from the subjects usually pursued in Oregon pubdecrees . . . which granted preliminary or- lic schools during the first eight years. Systeders restraining appellants from threatening matic religious instruction and moral trainor attempting to enforce the Compulsory Edu- ing according to the tenets of the Roman cation Act adopted November 7, 1922, under Catholic Church are also regularly provided. the initiative provision of her Constitution by ... The business is remunerative ... and

the voters of Oregon... . the successful conduct of this business reThe challenged act, effective September 1, quires long-time contracts with teachers and

1926, requires every parent... of a child parents. The Compulsory Education Act of between eight and sixteen years to send him 1922 has already caused the withdrawal from “to a public school for the period of time a_ its schools of children who would otherwise public school shall be held during the current continue, and their income has steadily de-

year” in the district where the child resides; clined... .

and failure to do so is declared a misde- The bill alleges that the enactment conmeanor. ... The manifest purpose is to flicts with the nght of parents to choose compel general attendance at public schools schools where their children will receive ap- — by normal children between eight and sixteen, propriate mental and religious training... who have not completed the eighth grade. and the right of schools and teachers therein And without doubt enforcement of the to engage in a useful business or profession, statute would seriously impair, perhaps de- and is accordingly repugnant to the Constitu-

stroy, the profitable features of appellees’ tion and void... . business, and greatly diminish the value of No question is raised concerning the power

their property. of the State reasonably to regulate all

Appellee the Society of Sisters is an Ore- schools, to inspect, supervise and examine gon corporation, organized in 1880, with them, their teachers and pupils; to require power to care for orphans, educate and in-_ that all children of proper age attend some struct the youth, establish and maintain school, that teachers shall be of good moral

academies or schools, and acquire necessary character and patriotic disposition, that cerreal and personal property. . . . It conducts _ tain studies plainly essential to good citizeninterdependent primary and high schools and ship must be taught, and that nothing be

378 DOCUMENTS OF AMERICAN History taught which is manifestly inimical to the _ the liberty of parents and guardians to direct

public welfare. the upbringing and education of children The inevitable practical result of enforcing under their control. As often heretofore

the act under consideration would be destruc- pointed out rights guaranteed by the Constition of appellees’ primary schools, and perhaps tution may not be abridged by legislation all other private primary schools for normal which has no reasonable relation to some children within the State of Oregon. Appellees purpose within the competency of the State.

are engaged in a kind of undertaking not ine The fundamental theory of liberty upon herently harmful, but long regarded as use- which all governments in this Union repose ful and meritorious. Certainly there is noth- excludes any general power of the State to ing in the present records to indicate that standardize its children by forcing them to they have failed to discharge their obliga- accept instruction from public teachers only. tions to patrons, students, or the State. And The child is not the mere creature of the there are no peculiar circumstances or present State; those who nurture him and direct his emergencies which demand extraordinary destiny have the right, coupled with the high measures relative to primary education. duty, to recognize and prepare him for addiUnder the doctrine of Meyer v. Nebraska, tional obligations. . . . 262 U.S. 390, we think it entirely plain that Decree affirmed. the Act of 1922 unreasonably interferes with

456. GITLOW v. PEOPLE OF NEW YORK 268 U. S. 652 1925

Error to the Supreme Court of the State of executive head or of any of the executive New York. Both the Federal and the State officials of government, or by any unlawful Constitutions guarantee the right of freedom of means. The advocacy of such doctrine either

Fee ee en ne ee tal EME by Word of mouth ot writing sa felony the Courts have to face. As Mr. Justice Holmes section 161. Advocacy of criminal an-

said in the case of U.S. v. Schenck, Doc. No. archy.—Any person who: . 426, “The most stringent protection of free "1. By word of mouth or writing advospeech would not protect a man in falsely shout- cates, advises or teaches the duty, necessity ing fire in a theatre and causing a panic.” The or propriety of overthrowing or overturning present case involved the validity of the New organized government by force or violence, York Criminal Anarchy Act of 1902. Compare oy by assassination of the executive head or the opinion of the Court in this case with the of any of the executive officials of governopinions in U.S. v. Schenck and Abrams v. ment, or by any unlawful means; or, United States, 250 US. 616, and Patterson v. “2. Prints, publishes, edits, issues or knowsion, see Z. Chafee, Freedom of Speech. ingly circulates, sells, distributes or publicly displays any book, paper, document, or writSANFORD, J. Benjamin Gitlow was indicted in ten or printed matter in any form, containthe supreme court of New York, with three ing or advocating, advising or teaching the Others, for the statutory crime of criminal doctrine that organized government should

Colorado, 205 U. S. 454. For a general discus- . oo. .

anarchy. .. . be overthrown by force, violence or any un-

The contention here is that the statute, by lawful means... , its terms and as applied in this case, is re- “Is guilty of a felony and punishable” by pugnant to the due process clause of the imprisonment or fine, or both. Fourteenth Amendment. Its material pro- The indictment was in two counts. The

visions are: first charged that the defendants had advo“Section 160. Criminal anarchy defined.— cated, advised, and taught the duty, neces-

Criminal anarchy is the doctrine that or- sity, and propriety of overthrowing and ganized government should be overthrown by overturning organized government by force,

force or violence, or by assassination of the violence, and unlawful means, by certain

GitLtow v. PEoPLE OF NEW YORK 379 writings therein set forth, entitled, “The Left ‘‘doctrine” having no quality of incitement, Wing Manifesto”; the second, that the de- without regard either to the circumstances of fendants had printed, published, and know- its utterance or to the likelihood of unlawful

ingly circulated and distributed a certain sequences; and that, as the exercise of the paper called “The Revolutionary Age,” con- right of free expression with relation to gov-

taining the writings set forth in the first ernment is only punishable “in circumstances count, advocating, advising, and teaching the involving likelihood of substantive evil,” the doctrine that organized government should statute contravenes the due process clause of be overthrown by force, violence, and un- the Fourteenth Amendment. The argument

lawful means. .. . in support of this contention rests primarily There was no evidence of any effect re- upon the following propositions: first, that the

sulting from the publication and circulation “liberty” protected by the Fourteenth

of the Manifesto. Amendment includes the liberty of speech No witnesses were offered in behalf of the and of the press; and second, that while

defendant. liberty of expression “is not absolute,” it may Extracts from the Manifesto are set forth be restrained “only in circumstances where in the margin. Coupled with a review of the its exercise bears a causal relation with some rise of Socialism, it condemned the dominant substantive evil, consummated, attempted, or “moderate Socialism” for its recognition of likely”; and as the statute “takes no account the necessity of the democratic parliamentary of circumstances,” it unduly restrains this state; repudiated its policy of introducing liberty, and is therefore unconstitutional.

Socialism by legislative measures; and advo- The precise question presented, and the cated, in plain and uncquivocal language, the only question which we can consider under necessity of accomplishing the “Communist — this writ of error, then, is whether the statute, Revolution” by a militant and “revolutionary as construed and applied in this case by the Socialism,” based on “the class struggle” and state courts, deprived the defendant of his mobilizing the “power of the proletariat in liberty of expression, in violation of the due action,” through mass industrial revolts de- process clause of the Fourteenth Amendment.

veloping into mass political strikes and The statute does not penalize the utterance “revolutionary mass action,” for the purpose or publication of abstract “doctrine” or of conquering and destroying the parliamen- academic discussion having no quality of in-

tary state and establishing in its place, citement to any concrete action. It is not through a “revolutionary dictatorship of the aimed against mere historical or philosophiproletariat,” the system of Communist So- cal essays. It does not restrain the advocacy clalism. The then recent strikes in Seattle and of changes in the form of government by Winnipeg were cited as instances of a de- constitutional and lawful means. What it velopment already verging on revolutionary prohibits is language advocating, advising, or action and suggestive of proletarian dictator- teaching the overthrow of organized governship, in which the strike workers were “‘try- ment by unlawful means... . ing to usurp the functions of municipal gov- The Manifesto, plainly, is neither the stateernment”; and Revolutionary Socialism, it ment of abstract doctrine nor, as suggested was urged, must use these mass industrial by counsel, mere prediction that industrial revolts to broaden the strike, make it general disturbances and revolutionary mass strikes and militant, and develop it into mass politi- will result spontaneously in an_ inevitable cal strikes and revolutionary mass action for process of evolution in the economic system.

the annihilation of the parliamentary It advocates and urges in fervent language

state. ... mass action which shall progressively foment . .. Lhe sole contention here is, essen- industrial disturbances, and, through political tially, that, as there was no evidence of any mass strikes and revolutionary mass action, concrete result flowing from the publication overthrow and destroy organized parliamenof the Manifesto, or of circumstances show- tary government... . ing the likelihood of such result, the statute The means advocated for bringing about as construed and applied by the trial court the destruction of organized parliamentary penalizes the mere utterance, as such, of government, namely, mass industrial revolts

380 DOCUMENTS OF AMERICAN HISTORY usurping the functions of municipal govern- freedom and the stability of the state. And ment, political mass strikes directed against a State may penalize utterances which openly the parliamentary state, and revolutionary advocate the overthrow of the representative mass action for its final destruction, neces- and constitutional form of government of the sarily imply the use of force and violence, United States and the several states, by vioand in their essential nature are inherently lence or other unlawful means. In short, this

unlawful in a constitutional government of freedom does not deprive a State of the law and order. That the jury was warranted primary and essential right of self-preservain finding that the Manifesto advocated not _ tion, which, so long as human governments merely the abstract doctrine of overwhelming endure, they cannot be denied. . . . organized government by force, violence, and By enacting the present statute the State unlawful means, but action to that end, is has determined, through its legislative body,

clear. that utterances advocating the overthrow of

For the present purposes we may and do _ organized government by force, violence, and assume that freedom of speech and of the unlawful means, are so inimical to the general press—which are protected by the First welfare, and involve such danger of substanAmendment from abridgment by Congress— tive evil, that they may be penalized in the are among the fundamental personal rights exercise of its police power. That determinaand “liberties” protected by the due process tion must be given great weight. Every preclause of the Fourteenth Amendment from sumption is to be indulged in favor of the

impairment by the states... . validity of the statute... . That utterances

It is a fundamental principle, long estab- inciting to the overthrow of organized govlished, that the freedom of speech and of the ernment by unlawful means present a sufpress which is secured by the Constitution ficient danger of substantive evil to bring does not confer an absolute right to speak or their punishment within the range of legislapublish, without responsibility, whatever one tive discretion is clear. Such utterances, by may choose, or an unrestricted and unbridled their very nature, involve danger to the publicense that gives immunity for every pos- lic peace and to the security of the state. sible use of language, and prevents the pun- They threaten breaches of the peace and

ishment of those who abuse this free- ultimate revolution. And the immediate dan-

dom... . ger is none the less real and substantial be-

That a state, in the exercise of its police cause the effect of a given utterance cannot power, may punish those who abuse this free- be accurately foreseen. The state cannot dom by utterances inimical to the public wel- reasonably be required to measure the danger fare, tending to corrupt public morals, incite from every such utterance in the nice balance to crime, or disturb the public peace, is not of a jeweler’s scale. A single revolutionary

open to question... . spark may kindle a fire that, smoldering for And, for yet more imperative reasons, a a time, may burst into a sweeping and de-

State may punish utterances endangering the — structive conflagration. It cannot be said that foundations of organized government and _ the state is acting arbitrarily or unreasonably

threatening its overthrow by unlawful means. when, in the exercise of its judgment as to These imperil its own existence as a consti- the measures necessary to protect the public tutional state. Freedom of speech and press, peace and safety, it seeks to extinguish the said Story (supra), does not protect disturb- spark without waiting until it has enkindled ances of the public peace or the attempt to the flame or blazed into the conflagration. It subvert the government. It does not protect cannot reasonably be required to defer the publications or teachings which tend to sub- adoption of measures for its own peace and vert or imperil the government, or to impede _ safety until the revolutionary utterances lead or hinder it in the performance of its govern- __to actual disturbances of the public peace or mental duties. It does not protect publica- imminent and immediate danger of its own

tions prompting the overthrow of govern- destruction; but it may, in the exercise of ment by force; the punishment of those who its judgment, suppress the threatened danger publish articles which tend to destroy organ- in its imcipiency. .. .

ized society being essential to the security of We cannot hold that the present statute

THE UNITED STATES AND THE WORLD CouwRT 381 is an arbitrary or unreasonable exercise of 52, applies: ‘““The question in every case is the police power of the state, unwarrantably whether the words used are used in such infringing the freedom of speech or press; circumstances and are of such a nature as to

and we must and do sustain its constitu- create a clear and present danger that they

tionality. will bring about the substantive evils that This being so it may be applied to every [the state] has a right to prevent.” ... If

utterance—not too trivial to be beneath the what I think the correct test is applied, it is notice of the law—which is of such a char- manifest that there was no present danger of acter and used with such intent and purpose an attempt to overthrow the government by

as to bring it within the prohibition of the force on the part of the admittedly small statute. . . . In other words, when the legis- minority who shared the defendant’s views. lative body has determined generally, in the It is said that this Manifesto was more than constitutional exercise of its discretion, that a theory, that it was an incitement. Every utterances of a certain kind involve such idea is an incitement. It offers itself for bedanger of substantive evil that they may be lief, and, if believed, it is acted on unless punished, the question whether any specific some other belief outweighs it, or some utterance coming within the prohibited class failure of energy stifles the movement at its is likely, in and of itself, to bring about the birth. The only difference between the exsubstantive evil, is not open to consideration. pression of an opinion and an incitement in It is sufficient that the statute itself be con- the narrower sense is the speaker’s enthusistitutional, and that the use of the language asm for the result. Eloquence may set fire

comes within its prohibition. .. . to reason. But whatever may be thought of And finding, for the reasons stated, that the redundant discourse before us, it had no the statute is not in itself unconstitutional, chance of starting a present conflagration.

and that it has not been applied in the If, in the long run, the beliefs expressed in present case in derogation of any constitu- proletarian dictatorship are destined to be tional right, the judgment of the court of accepted by the dominant forces of the com-

appeals is affirmed. munity, the only meaning of free speech is

Hoimes, J., dissenting: that they should be given their chance and Mr Justice Brandeis and I are of opinion have their way.

that this judgment should be reversed. The If the publication of this document had general principle of free speech, it seems been laid as an attempt to induce an uprising to me, must be taken to be included in against government at once, and not at some the Fourteenth Amendment, in view of the indefinite time in the future, it would have

scope that has been given to the word presented a different question. The object

“liberty” as there used, although perhaps it would have been one with which the law may be accepted with a somewhat larger might deal, subject to the doubt whether latitude of interpretation than is allowed to there was any danger that the publication Congress by the sweeping language that gov- could produce any result; or, in other words,

erns, or ought to govern, the laws of the whether it was not futile and too remote United States. If Iam right, then I think that from possible consequences. But the indict-

the criterion sanctioned by the full court ment alleges the publication and nothing in Schenck v. United States, 249 U. S. 47, more.

457. THE UNITED STATES AND THE WORLD COURT Senate Reservations to Accession of the United States, and World Court Modifications January 27, 1926 The World Court of International Justice was sembly of the League of Nations, December 13, provided for by the Covenant of the League of 1920, and the Court was organized the followNations. A committee of ten distinguished jurists, ing year. Every administration has apparently

including Mr. Elihu Root, drew up the Rules favored our accession to the Court, but not

for the Court; these were adopted by the As- until 1926 was President Coolidge able to secure

382 DOCUMENTS OF AMERICAN HIsToRy the consent of the Senate, and then with the designated for the purpose and upcn an reservations below. ‘These reservations were in- equality with the other states, members, re-

rotocol oO arc ) » an e signature nt :

Deporte’ we nent og ucations into ae spectively, of the Council and Assembly of of the United States affixed November 25, 1929, the League of Nations, in any and all proThe Senate has not yct (1934) acted upon the ceedings of either the council or the assembly ratification of the protocol. The Senate reserva- {0F the election of judges or deputy judges tions are in Congressional Record, Vol. LXVI, Of the Permanent Court of International p. 2306; the World Court Protocol in Foreign Justice or for the filling of vacancies. Policy Association, Information Service, Vol. V, 3. That the United States will pay a fair No. 21. See, P. C. Jessup, The United States and share of the expenses of the court, as de-

the World Court, World Peace Foundation termined and appropriated from time to

Pamphlets, Vol XII, No. 4. time by the Congress of the United States.

4. That the United States may at any

1. CONDITIONS UPON WHICH THE time withdraw its adherence to the said proto-

UNITED STATES WILL ENTER col and that the statute for the Permanent

THE WORLD COURT Court of International Justice adjoined to THE SWANSON RESOLUTION the protocol shall not be amended without Whereas the President, under date of the consent of the United States. February 24, 1923, transmitted a message to 5. That the court shall not render any adthe Senate accompanied by a letter from visory opinion except publicly after due the Secretary of State, dated February 17, notice to all states adhering to the court and 1923, asking the favorable advice and con- to all interested states and after public hearsent of the Senate to the adherence on the ing or opportunity for hearing given to any part of the United States to the protocol of state concerned; nor shall it, without the conDecember 16, 1920, of signature of the sent of the United States, entertain any restatute for the Permanent Court of Inter- quest for an advisory opinion touching any national Justice, set out in said message of dispute or question in which the United the President (without accepting or agree- States has or claims an interest. ing to the optional clause for compulsory The signature of the United States to the jurisdiction contained therein), upon the — said protocol shall not be affixed until the conditions and understandings hereafter powers signatory to such protocol shall have stated, to be made a part of the instrument indicated, through an exchange of notes, their

of adherence: Therefore be it acceptance of the foregoing reservations and

Resolved (two-thirds of the Senators understandings as a part and a condition of present concurring), That the Senate advise adherence by the United States to the said and consent to the adherence on the part of — protocol.

the United States to the said protocol of De- Resolved further, As a part of this act of cember 16, 1920, and the adjoined statute ratification that the United States approve for the Permanent Court of International the protocol and statute hereinabove menJustice (without accepting or agreeing to tioned, with the understanding that recourse the optional clause for compulsory jurisdic- to the Permanent Court of International tion contained in said statute), and that the Justice for the settlement of differences besignature of the United States be affixed to tween the United States and any other state the said protocol, subject to the following or states can be had only by agreement reservations and understandings, which are’ thereto through general or special treaties hereby made a part and condition of this concluded between the parties in dispute;

resolution, namcly: and 1. That such adhcrence shall not be taken Resolved further, That adherence to the

to involve any legal relation on the part of said protocol and statute hereby approved the United States to the League of Nations shall not be so construed as to require the or the assumption of any obligations by the United States to depart from its traditional United States under the treaty of Versailles. policy of not intruding upon, interfering with,

2. That the United States shall be per- or entangling itself in the political questions mitted to participate, through representatives of policy or internal administration of any |

THE UNITED STATES AND THE WORLD Court 383 foreign state; nor shall adherence to the question in which the United States has or said protocol and statute be construed to claims an interest, the Secretary-General of imply a relinquishment by the United States the League of Nations shall, through any of its traditional attitude toward purely channel designated for that purpose by the

American questions. United States, inform the United States of any proposal before the Council or the As-

for aining an ad-

2. DRAFT PROTOCOL FOR THE icity opinion from the Court, and. there ACCESSION OF THE UNITED upon, if desired, an exchange of views as

STATES to whether an interest of the United States

The States signatories of the Protocol of is affected shall proceed with all convenient Signature of the Permanent Court of In- speed between the Council or Assembly of ternational Justice, dated December 16th, the League and the United States. 1920, and the United States of America, Whenever a request for an advisory opinthrough the undersigned duly authorized ion comes to the Court, the Registrar shall representatives, have mutually agreed upon notify the United States thereof, among other the following provisions regarding the adher- States mentioned in the now existing Article ence of the United States of America to the 73 of the Rules of Court, stating a reasonable said Protocol, subject to the five reservations _time-limit fixed by the President within which formulated by the United States in the reso- a written statement by the United States con-

lution adopted by the Senate on January cerning the request will be received. If for

27th, 1926. any reason no sufficient opportunity for an ArT. 1. The States signatories of the said exchange of views upon such request should

Protocol accept the special conditions at- have been afforded and the United States

tached by the United States in the five advises the Court that the question upon

reservations mentioned above to its adher- which the opinion of the Court is asked is ence to the said Protocol upon the terms and one _that affects the interests of the United conditions set out in the following Articles. States, proceedings shall be stayed for a Art. 2. The United States shall be ad- period sufficient to enable such an exchange mitted to participate, through representatives of views between the Council or the Assem-

designated for the purpose and upon an_ bly and the United States to take place. equality with the signatory States Members With regard to requesting an advisory of the League of Nations represented in the opinion of the Court in any case covered by Council or in the Assembly, in any and all _ the preceding paragraphs, there shall be attrib-

proceedings of either the Council or the uted to an objection of the United States Assembly for the election of judges or the same force and effect as attaches to a deputy-judges of the Permanent Court of vote against asking for the opinion given by International Justice, provided for in the a Member of the League of Nations in the Statute of the Court. The vote of the United Council or in the Assembly.

States shall be counted in determining the If, after the exchange of views provided absolute majority of votes required by the for in paragraphs 1 and 2 of this Article, it

Statute. shall appear that no agreement can be reached Art. 3. No amendment of the Statute of and the United States is not prepared to

the Court may be made without the consent forego its objection, the exercise of the pow-

of all the Contracting States. ers of withdrawal provided for in Article 8

Art. 4. The Court shall render advisory hereof will follow naturally without any imopinions in public session after notice and putation of unfriendliness or unwillingness to opportunity for hearing substantially as pro- co-operate generally for peace and goodwill, vided in the now existing Articles 73 and 74 ART. 6. Subject to the provisions of Article

of the Rules of Court. 8 below, the provisions of the present Proto-

ArT. 5. With a view to ensuring that the col shall have the same force and effect as Court shall not, without the consent of the the provisions of the Statute of the Court United States, entertain any request for an and any future signature of the Protocol of advisory opinion touching any dispute or December 16th, 1920, shall be deemed to be

384 DOCUMENTS OF AMERICAN HISTORY an acceptance of the provisions of the present In such case, the present Protocol shall

Protocol. cease to be in force as from the receipt by Art. 7. The present Protocol shall be rati- the Secretary-General of the notification by hed. Each State shall forward the instrument the United States.

of ratification to the Secretary-General of On their part, each of the other Contractthe League of Nations, who shall inform all ing States may at any time notify the the other signatory States. The instruments Secretary-General of the League of Nations of ratification shall be deposited in the ar- that it desires to withdraw its acceptance of chives of the Secretariat of the League of the special conditions attached by the United

Nations. States to its adherence to the Protocol of The present Protocol shall come into force December 16th, 1920. The Secretary-General as soon as all States which have ratified the shall immediately give communication of this Protocol of December 16th, 1920, and also notification to each of the States signatories the United States, have deposited their ratifi- of the present Protocol. The present Protocol

cations. shall be considered as ceasing to be in force

ArT, 8. The United States may at any if and when, within one year from the date time notify the Secretary-General of the of receipt of the said notification, not less League of Nations that it withdraws its ad- than two-thirds of the Contracting States herence to the Protocol of December 16th, other than the United States shall have noti1920. The Secretary-General shall immedi- fied the Secretary-General of the League of ately communicate this notification to all the Nations that they desire to withdraw the other States signatories of the Protocol. above-mentioned acceptance.

458. TYSON v. BANTON 273 U. S. 418 1926

Appeal from United States district court for fected with a public interest. To affirm the Southern district of New York. The facts of the validity of section 172 is to affirm this declacase are stated in the opinion below. The dis- ration completely since appellant’s business senting opinion of Mr. Justice Holmes is par- embraces the resale of entrance tickets to all ticularly important as foreshadowing the attitude forms of entertainment therein enumerated.

of the Court at the present time. And since the ticket broker is a mere appendSUTHERLAND, J. Appellant is engaged in age of the theatre, etc., and the price of or the business of reselling tickets of admission charge for admission is the essential element to theatres and other places of entertainment in the statutory declaration, it results that the

in the city of New York. ... Section 167 real inquiry is whether every public exhibiof ch. 590 (New York laws) declares that tion, game, contest or performance, to which the price of or charge for admission to thea- an admission charge is made, is clothed with tres, etc., 1s a matter affected with a public a public interest, so as to authorize a lawinterest and subject to state supervision in making body to fix the maximum amount of

order to safeguard the public against fraud, the charge, which its patrons may be reextortion, exorbitant rates, and similar abuses. quired to pay... .

Section 172 forbids the resale of any ticket A business is not affected with a public . . . to any theatre, etc., “at a price in excess interest merely because it is large or because of fifty cents in advance of the price printed the public are warranted in having a feeling

on the face of such ticket.” ... of concern in respect of its maintenance. Nor

Strictly, the question for determination re- is the interest meant such as arises from the lates only to the maximum price for which an mere fact that the public derives benefit, acentrance ticket to a theatre, etc., may be re- commodation, ease or enjoyment from the sold. But the answer necessarily must be to a __— existence or operation of the business; and question of greater breadth. The statutory while the word has not always been limited declaration is that the price of or charge for narrowly as strictly denoting “a right”, that

admission to a theatre... is a matter af- synonym, more nearly than any other, ex-

Tyson Vv. BANTON 385 presses the sense in which it is to be under- power and are unwilling to recognize it when

stood. ... it exists. The States very generally have _.. The mere declaration by the legisla- stripped jury trials of one of their most imture that a particular kind of property or portant characteristics by forbidding the

business is affected with a public interest is judges to advise the jury upon the facts, and not conclusive upon the question of the when legislatures are held to be authorized to validity of the regulation. The matter is one do anything considerably affecting public welwhich is always open to judicial inquiry. fare, it is covered by apologetic phrases like From the foregoing review it will be seen the police power, or the statement that the that each of the decisions of this court up- business concerned has been dedicated to a holding governmental price regulation aside public use. The former expression is confrom cases involving legislation to tide over venient, to be sure, to conciliate the mind to temporary emergencies, has turned upon the something that needs explanation; the fact existence of conditions, peculiar to the busi- that the constitutional requirement of comness under consideration, which bore such a_ pensation when property is taken cannot substantial and definite relation to the public be pressed to its grammatical extreme; that

interest as to justify an indulgence of the property rights may be taken for public legal fiction of a grant by the owner to the purposes without pay if you do not take too

public of an interest in the use. much; that some play must be allowed to the

Lord Hale’s statement that when private joints if the machine is to work. But police property is ‘“‘affected with a public interest, power often is used in a wide sense to cover it ceases to be juris privati only” is accepted and, as I said, to apologize for the general by this court as the guiding principle in cases power of the legislature to make a part of

of this character. ... the community uncomfortable by a change.

A theatre or other place of entertainment I do not believe in such apologies. I think does not meet this conception of Lord Hale’s the proper course is to recognize that a aphorism or fall within the reasons of the — state legislature can do whatever it sees fit decisions of this court based upon it. A to do unless it is restrained by some express theatre is a private enterprise, which, in its prohibition in the Constitution of the United relation to the public, differs obviously and States or of the state, and that courts should widely, both in character and degree, from a be careful not to extend such prohibitions begrain elevator, standing at the gateway of yond their obvious meaning by reading into

commerce and exacting toll ...; or stock them conceptions of public policy that the yards, standing in like relation to the com-_ particular court may happen to entertain.

merce in live stock; or insurance company Coming down to the case before us, I engaged as a sort of common agency, in _ think, as I intimated in Adkins v. Children’s collecting and holding a guarantee fund in Aospital, that the notion that a business is which definite and substantial rights are en- clothed with a public interest and has been joyed by a considerable portion of the public. devoted to the public use is little more than

... Sales of theatre tickets bear no re- a fiction intended to beautify what is dislation to the commerce of the country; and agreeable to the sufferers. The truth seems to they are not interdependent transactions, but me to be that, subject to compensation when stand, both in form and effect, separate and compensation is due, the legislature may forapart from each other, “terminating in their bid or restrict any business when it has a effect with the instances.” And, certainly a sufficient force of public opinion behind it. place of entertainment is in no legal sense a_ Lotteries were thought useful adjuncts of the public utility; and, quite as certainly, its ac- state a century or so ago; now they are betivities are not such that their enjoyment can lieved to be immoral and they have been be regarded under any conditions from the stopped. Wine has been thought good for

point of view of an emergency... . man from the time of the Apostles until

The statute assailed contravenes the 14th recent years. But when public opinion Amendment, and the decree must be re- changed it did not need the 18th Amendment,

versed. notwithstanding the 14th, to enable a state

Hotmes, J., dissenting. We fear to grant to say that the business should end. What

386 DOCUMENTS OF AMERICAN HIstTory has happened to lotteries and wine might hap- and it seems to me that government does not

pen to theatres in some moral storm of the go beyond its sphere in attempting to make future, not because theatres were devoted to life livable for them. I am far from saying a public use, but because people had come that I think this particular law a wise and

to think that way. rational provision. That is not my affair, But

But if we are to yield to fashionable con- if the people of the state of New York speakventions, it seems to me that theatres are as ing by their authorized voice say that they much devoted to public use as anything well want it, I see nothing in the Constitution of

can be. We have not that respect for art the United States to prevent their having

that is one of the glories of France. But to _ their will. many people the superfluous is the necessary,

459. MYERS v. UNITED STATES

272 U.S. 52 1926

Appeal from the Court of Claims. It will be sooner removed or suspended according to remembered that President Johnson challenged law”.

the validity of the Tenure of Office Act of The Senate did not consent to the PresiMarch 2, 1867 (see Doc. No 70) and wnat ns dent’s removal of Myers during his term. If pnpeactment ree vnable t ‘he bin i. Se cin. 2 this statute in its requirement that his term the question of the constitutionality of the Act should be four years unless sooner removed before the Courts, and not until 1926 did the by the President by and with the consent of Court hand down an opinion on the vexed ques- _the Senate is valid, the appellant . . . is en-

tion of the power of removal. The opinion of titled to recover his unpaid salary for his the Court in this case may be taken as a com-_ fyll term and the judgement of the court of plete vindication of the position of President ¢Jaims must be reversed. The government

Johnson. maintains that the requirement is invalid, for

Tart, C. J. This case presents the question the reason that under article 2 of the Conwhether under the Constitution the President stitution, the President’s power of removal has the exclusive power of removing execu- Of executive officers appointed by him with tive officers of the United States whom he the advice and consent of the Senate is full has appointed by and with the advice and and complete without consent of the Senate.

consent of the Senate. If this view is sound, the removal of Myers

Meyers was on July 21, 1917 appointed by the President without the Senate’s con-

by the President, by and with the advice sent was legal... . . .

and consent of the Senate, to be a postmaster [There follows a learned discussion of the

of the first class at Portland, Oregon, for a history of the President’s power of re-

term of four years. On January 20, 1920, moval.] . .

Myers’s resignation was demanded. He re- Our conclusion on the merits sustained by fused the demand. On February 2, 1920, he the arguments before stated is that article 2 was removed from office by order of the grants to the President the executive power Postmaster General, acting by direction of of the Government, i.e. the general adminis-

the President. ... trative control of those executing the laws, By the 6th section of the Act of Congress including the power of appointment and of July 12, 1876, under which Myers was removal of executive officers, a conclusion appointed with the advice and consent of the confirmed by his obligation to take care that Senate as a first class postmaster, it is pro- the laws be faithfully executed; that article vided that “‘Postmasters of the first, second 2 excludes the legislative of executive power and third classes shall be appointed and may _— by Congress to provide for appointments and

be removed by the President by and with removals except only as granted therein to the advice and consent of the Senate and Congress in the matter of inferior offices; that shall hold their offices for four years unless Congress is only given power to provide for

MYERS V. UNITED STATES 387 appointments and removals of inferior of- quiescence which has changed any formerly ficers after it has vested, and on condition accepted constitutional construction to the that it does vest, their appointment in other contrary. Instances are cited of the signed authority than the President with the Senate’s approval by President Grant and other Presiconsent; that the provisions of the second dents of legislation in derogation of such section of article 2, which blend action by construction. We think these are all to be the legislative branch, or by part of it, in the explained not by acquiescence therein, but by work of the executive, are limitations to be reason of the otherwise valuable effect of the strictly construed and not to be extended by legislation approved. Such is doubtless the implication; that the President’s power of explanation of the executive approval of the removal is further established as an incident Act of 1867, which we are considering, for it to his specifically enumerated function of was an appropriation act on which the section appointment by and with the advice of the here in question was imposed as rider... .

Senate, but that such incident does not by When, then, are the elements that enter implication extend to removals of the Senate’s into our decision of this case? We have first power of checking appointment; and finally a construction of the Constitution made by that to hold otherwise would make it impos- a Congress which was to provide by legislasible for the President in case of political or tion for the organization of the Government other difference with the Senate or Congress in accord with the Constitution which had

to take care that the laws be faithfully exe- just then been adopted, and in which there

cuted. were, as representatives and senators, a conWe come now to a period in the history of | siderable number of those who had been the Government when both houses of Con- members of the Convention that framed the gress attempted to reverse this constitutional Constitution and presented it for ratification. construction and to subject the power of re- It was the Congress that launched the Govmoving executive officers appointed by the ernment. It was the Congress that rounded President and conformed by the Senate to out the Constitution itself by the proposing the control of the Senate, indeed finally to the of the first ten amendments which had in efassumed power in Congress to place the re- fect been promised to the people as a con-

moval of such officers anywhere in the sideration for the ratification. ... It was a

Government. Congress whose constitutional decisions have This reversal grew out of the serious politi- always been regarded as they should be re-

cal difference between the two Houses of garded as of the greatest weight in the inCongress and President Johnson. ... The terpretation of that fundamental instrument. chief legislation in support of the reconstruc- ... We are now asked to set aside this tion policy of Congress was the Tenure of construction thus buttressed and adopt an Office Act of March 2, 1867, providing that adverse view because the Congress of the all officers appointed by and with the consent United States did so during a heated political of the Senate: should hold their offices until difference of opinion between the then Presi-

their successdrs should have in like manner dent and the majority leaders of Congress been appointéd and qualified, that certain over the reconstruction measures adopted heads of depattments, including the Secretary as a means of restoring to their proper status of War, should hold their offices during the the States which attempted to withdraw

terms of the President by whom appointed from the Uuion at the time of the Civil and one month thereafter subject to removal War. ... When on the merits we find our by consent of the Senate. The Tenure of conclusions strongly favoring the view which Office Act was vetoed, but it was passed over prevailed in the First Congress, we have no

the veto. ... hesitation in holding that conclusion to be In spite of the foregoing Presidential decla- correct; and it therefore follows that the rations, it is contended that since the passage Tenure of Office Act of 1867, in so far as of the Tenure of Office Act, there has been a _ it attempted to prevent the President from general acquiescence by the Executive in removing executive officers who had been the power of Congress to forbid the President appointed by him by and with the advice and

alone to remove executive officers, an ac- consent of the Senate, was invalid and that

388 DOCUMENTS OF AMERICAN HISTORY subsequent legislation to the same effect was abolish tomorrow. Its duration and the pay

equally so. attached to it while it lasts depend on ConFor the reasons given we must therefore gress alone. Congress alone confers on the

hold that the provision of the law of 1876 President the power to appoint to it and by which the unrestricted power of removal at any time may transfer the power to other of first class postmasters is denied to the hands. With such power over its own creaPresident is in violation of the Constitution tion, I have no more trouble in believing that and invalid. This leads to an affirmation of Congress has power to prescribe a term of

the judgement of the Court of Claims... . life for it free from any interference than I Hoitmes, J., dissenting. ... The argu- have in accepting the undoubted power of ments (for the President’s power of removal) Congress to decree its end. I have equally drawn from the executive power of the Presi- little trouble in accepting its power to prodent, and from his duty to appoint officers long the tenure of an incumbent until Conof the United States (when Congress does not gress or the Senate shall have assented to his

vest the appointment elsewhere), to take removal. The duty of the President to see care that the laws be faithfully executed, and that the laws be executed is a duty that does to commission all officers of the United States, not go beyond the laws or require him to seem to me spider’s webs inadequate to con- achieve more than Congress sees fit to leave

trol the dominant facts. within his power.

We have to deal with an office that owes its McReynotps, J., and BRANDEIS, J., joined in existence to Congress and that Congress may this dissent.

460. AMERICAN INTERVENTION IN NICARAGUA Message of President Coolidge to Congress January 10, 1927 (U.S. 69th Congress, 2d Session, House Doc. No. 633) Dissatisfaction of the liberals in Nicaragua with States, 1909-1927; H. A. Stimson, American the Diaz government resulted in disturbances Policy in Nicaragua; C. P. Howland, ed. Survey which led in 1927 to a renewal of American of American Foreign Relations, 1929; M. Winkintervention. In his special message to Congress ler, Investments of United States Capital in of January 10, President Coolidge sketched the Latin America.

background of American intervention and The White House pointed out the circumstances which, in his ; opinion, made intervention imperative. Within To the Congress of the United States:

a few months over 5000 American marines were ... It is well known that in 1912 the sent to Nicaragua to preserve order. In April United States intervened in Nicaragua with Mr. Henry Stimson went to Nicaragua as special a large force and put down a revolution, and

commissioner to work out some agreement that from that time to 1925 a Icgation guard among the warring factions. He succeeded in of American marines was, with the consent providing for a new election to take place in of the Nicaraguan Government, kept in 1928 under American supervision. At this elec- Managua to protect American lives and tion General Moncada, the liberal candidate, was property. In 1923 representatives of the five elected over General Diaz who had been main- ;

tained by American arms and diplomacy. Mon- Central American countries, namely, Costa cada promptly appointed Dr. Sacasa, who had Rica, Guatemala, Honduras, Nicaragua, and

been deposed by Diaz and whose appeal to the Salvador, at the invitation of the United United States had been spurned, minister to States, met in Washington and entered into the United States! Sandino, a Sacasa supporter, a series of treaties. These treaties dealt with refused to be bound by the election of 1928, and Jimitation of armament, a Central American for the next four years he carried on a desultory tribunal for arbitration, and the general sub-

warfare against the government. In 1932 Dr. ject of peace and amity. The treaty last resacasa was elected fo the Presidency, and San- ferred to specifically provides in Article II marines were withdrawn from Nicaragua in that the Governments of the contracting par1933. See, I. J. Cox, Nicaragua and the United ties will not recognize any other government

dino voluntarily laid down his arms. American ;

AMERICAN INTERVENTION IN NICARAGUA 389 which may come into power in any of the support the government recognized by it five Republics through a coup d’état, or while the revolutionists were receiving arms revolution, and disqualifies the leaders of such and munitions from abroad... . coup d’état, or revolution, from assuming the For many years numerous Americans have

presidency or vice presidency. .. . been living in Nicaragua, developing its in-

The United States was not a party to this dustries and carrying on business. At the treaty, but it was made in Washington under present time there are large investments in the auspices of the Secretary of State, and lumbering, mining, coffee growing, banana this Government has felt a moral obligation culture, shipping, and also in general mercanto apply its principles in order to encourage — tile and other collateral business.

the Central American States in their efforts In addition to these industries now in to prevent revolution and disorder... . existence, the Government of Nicaragua, by The Nicaraguan constitution provides in a treaty entered into on the 5th day of article 106 that in the absence of the Presi- August, 1914, granted in perpetuity to the dent and Vice President the Congress shall United States the exclusive proprietary rights designate one of its members to complete the necessary and convenient for the construcunexpired term of President . . . the action tion, operation, and maintenance of an oceanic

of Congress in designating Senor Diaz was canal... . perfectly legal and in accordance with the There is no question that if the revolution constitution. Therefore the United States continues American investments and business Government on November 17 extended recog- interests in Nicaragua will be very seriously

nition to Senor Diaz... . affected, if not destroyed.

Immediately following the inauguration of Manifestly the relation of this GovernPresident Diaz and frequently since that date ment to the Nicaraguan situation and its he has appealed to the United States for policy in the existing emergency, are detersupport, has informed this Government of mined by the facts which I have described. the aid which Mexico is giving to the revo- The proprietary rights of the United States lutionists, and has stated that he is unable in the Nicaraguan canal route, with the necessolely because of the aid given by Mexico to sary implications growing out of it affecting

the revolutionists to protect the lives and the Panama Canal, together with the obligaproperty of American citizens and other for- tions flowing from the investments of all eigners. When negotiations leading up to the classes of our citizens in Nicaragua, place us Corinto conferences began, I immediately in a position of peculiar responsibility. 1 am placed an embargo on the shipment of arms _ sure it is not the desire of the United States

and ammunition to Nicaragua... . to intervene in the internal affairs of Nica.. . At the end of November, after spend- ragua or of any other Central American

ing some time in Mexico City, Doctor Sacasa Republic. Nevertheless it must be said that went back to Nicaragua, landing at Puerto we have a very definite and special interest Cabezas, near Bragmans Bluff. He immedi- inthe maintenance of order and good governately placed himself at the head of the in- ment in Nicaragua at the present time, and

surrection and declared himself President of that the stability, prosperity, and indeNicaragua. He has never been recognized by pendence of all Central American countries any of the Central American Republics nor can never be a matter of indifference to us. by any other government, with the exception The United States can not, therefore, fail to of Mexico, which recognized him immedi- view with deep concern any serious threat to ately. As arms and munitions in large quanti- stability and constitutional government in ties were reaching the revolutionists, [deemed Nicaragua tending toward anarchy and it unfair to prevent the recognized govern- jeopardizing American interests, especially if

ment from purchasing arms abroad, and, ac- such state of affairs is contributed to or cordingly, the Secretary of State has notified brought about by outside influences or by the Diaz Government that licenses would be any foreign power. It has always been and issued for the export of arms and munitions remains the policy of the United States in ' purchased in this country. It would be thor- such circumstances to take the steps that may oughly inconsistent for this country not to be necessary for the preservation and protec-

390 DOCUMENTS OF AMERICAN HISTORY tion of the lives, the property, and the inter- the adequate protection of all American interests of its citizens and of this Government _ ests in Nicaragua, whether they be endangered itself. In this respect I propose to follow the _ by internal strife or by outside interference in

path of my predecessors. the affairs of that Republic.

Consequently, I have deemed it my duty Calvin Coolidge.

to use the powers committed to me to insure

461. THE McNARY-HAUGEN BILL February 25, 1927 (The Congressional Record, 69th Congress, 2d Session, Vol. LXVIII, part 4, p. 3869 ff.) The prolonged agricultural depression that set Secretary of Agriculture, who shall be a in about 1921 resulted in a persistent demand member ex officio, and 12 members, one from

that the Government extend relief of a more each of the 12 Federal land-bank districts, positive character than any heretofore attempted. appointed by the President of the United In the face of an agricultural surplus which States, by and with the advice and consent price, the Farm Bloc in Congress attempted to of the Senate, from lists of eligibles submitted solve the problem by extending the protective by the nominating committee for the district, system to the farmers. The McNary-Haugen 4s hereinafter in this section provided. Act sought to maintain a high domestic price by (b) There is hereby established a nominatpermitting the government to buy up the sur- ing committee in each of the 12 Federal landplus agricultural commodities, dispose of them bank districts, to consist of seven members. at a loss in the foreign market, and make good four of the members of the nominating comthe loss through an “equalization fee” to be ittee in each district shall be elected by the paid by the farmers. The bill was roundly de- bona fide farm organizations and cooperative nounced by President Coolidge as dangerously oo. Ls socialistic in character. It was repassed in May, associations in such district at a convention of 1928, and again vetoed by President Coolidge. Such organizations and associations, to be held The second veto can be found in Supplement at the office of the Federal land bank in such to the Messages and Papers of the Presidents district, or at such other place, in the city Covering the Administration of President Cool- where such Federal land bank is located, to idge, p.9777 ff. George N. Peek, who drafted the which the convention may adjourn. Two of bill, explained it in Current History, November the members of the nominating committee in 1928. See also E. R. A. Seligman, The Economics each district shall be elected by a majority of Farm Relie} , J. D. Black, Agricultural Re- vote of the heads of the agricultural depart-

tended to level down all prices to the world , _ .

form in the United States. ments of the several States of each Federal

land-bank district, at a meeting to be held in

SEC. 1. It is hereby declared to be the the same city and at the same time of the policy of Congress to promote the orderly meeting of the convention of the bona fide marketing of basic agricultural commodities farm organizations and cooperative associain interstate and foreign commerce and to _ tions in each district. One of the members of that end to provide for the control and dis- the nominating committee in each district position of surpluses of such commodities, to shall be appointed by the Secretary of Agri-

enable producers of such commodities to culture... . stabilize their markets against undue and SEC. 6. (a) For the purposes of this act, excessive fluctuations, to preserve advantage- cotton, wheat, corn, rice, tobacco, and swine ous domestic markets for such commodities, shall be known and are referred to as “basic to minimize speculation and waste in market- agricultural commodities,” except that the ing such commodities, and to encourage the board may, in its discretion, treat as a seporganization of producers of such cormmodi- arate basic agricultural commodity one or ties into cooperative marketing associations. more of such classes or types of tobacco as SEC. 2. (a) A Federal Farm Board is are designated in the classification of the De-

hereby created which shall consist of the partment of Agriculture.

) THe McNARY-HAUGEN BILL 391 (b) Whenever the board finds that the con- storage, or sale or other disposition of the ditions of production and marketing of any commodity or out of contracts therefor, and other agricultural commodity are such that for the payment into the stabilization fund the provisions of this act applicable to a basic for the commodity of profits (after deductagricultural commodity should be made ap- ing all costs and charges provided for in the plicable to such other agricultural commodity, agreement) arising out of such purchase, the board shall submit its report thereon to storage, or sale or other disposition, or con-

Congress. tracts therefor. In the case of agreements

(c) Whenever the board finds, first, that insuring such commodity against undue and there is or may be during the ensuing year excessive fluctuations in market conditions, either (1) a surplus above the domestic re- the board may insure any cooperative marketquirements for wheat, corn, rice, tobacco, or ing association against decline in the market swine, or (2) a surplus above the require- price for the commodity at the time of sale ments for the orderly marketing of cotton, or by the association, from the market price for of wheat, corn, rice, tobacco, or swine; and, such commodity at the time of delivery to the second, that both the advisory council here- association. inafter created for the commodity and a sub- SEC. 7. (a) The board is hereby authorstantial number of cooperative associations ized and directed to create for each basic or other organizations representing the pro- agricultural commodity an advisory council ducers of the commodity favor the full of seven members fairly representative of the cooperation of the board in the stabilization producers of such commodity. ...

of the commodity, then the board shall SEC. 8. In order that each marketed unit

publicly declare its findings and commence, of a basic agricultural commodity may con-

upon a date to be fixed by the board and tribute ratably its equitable share to the published in such declaration, the operations _ stabilization fund hereinafter established for

in such commodity authorized by this such commodity; in order to prevent any un-

act: ... just discrimination against, any direct bur(d) During the continuance of such opera- den or undue restraint upon, and any

tions in any basic agricultural commodity, the suppression of commerce with foreign nations board is authorized to enter into agreements, in basic agricultural commodities in favor of

for the purpose of carrying out the policy interstate or intrastate commerce in such declared in section 1, with any cooperative commodities; and in order to stabilize and association engaged in handling the basic regulate the current of foreign and interagricultural commodity, or with a corpora- state commerce in such commodities—there tion created by one or more of such coopera- shall be apportioned and paid as a regulation tive associations, or with processors of the of such commerce an equalization fee as here-

basic agricultural commodity. inafter provided.

(e) Such agreements may provide for (1) SEC. 9. Prior to the commencement of

removing or disposing of any surplus of the operations in respect of any basic agriculbasic agricultural commodity, (2) withhold- tural commodity, and thereafter from time ing such surplus, (3) insuring such com- to time, the board shall estimate the probable modity against undue and excessive fluctua- advances, losses, costs, and charges to be paid

tions in market conditions, and (4) financing in respect of the operations in such comthe purchase, storage, or sale or other dis- modity. Having due regard to such estimates, position of the commodity. The moneys in _ the board shall from time to time determine the stabilization fund of the basic agricultural and publish the amount for each unit of commodity shall be available for carrying out weight, measure, or value designated by it, such agreements. In the case of any agree- to be collected upon such unit of such basic ment in respect of the removal or disposal of agricultural commodity during the operations the surplus of a basic agricultural commodity, in such commodity. Such amount is herein-

the agreement shall provide both for the after referred to as the “equalization fee.” payment from the stabilization fund for the At the time of determining and publishing an commodity of the amount of losses, costs, equalization fee the board shall specify the and charges, arising out of the purchase, period during which it shall remain in effect,

392 DocUMENTS OF AMERICAN HISTORY

collection. products. ... SEC. 10. (a) Under such regulations as SEC. 12. (a) The board is authorized,

and the place and manner of its payment and _ the basic agricultural commodity or its food

the board may prescribe there shall be paid, upon such terms and conditions and in acduring operations in a basic agricultural com- cordance with such regulations as it may modity and in respect of each unit of such _ prescribe, to make loans out of the revolving commodity, an equalization fee upon one of fund to any cooperative association engaged the following: the transportation, processing, in the purchase, storage, or sale or other dis-

or sale of such unit... . position of any agricultural commodity

(b) The board may by regulation require (whether or not a basic agricultural comany person engaged in the transportation, modity) for the purpose of assisting such processing, or acquisition by sale of a basic cooperative association in controlling the

agricultural commodity— surplus of such commodity in excess of the

(1) To file returns under oath and to re- requirements for orderly marketing. port, in respect of his transportation, process- (b) For the purpose of developing coning, or acquisition of such commodity, the tinuity of cooperative services, including uniamount of equalization fees payable thereon fied terminal marketing facilities and equipand such other facts as may be necessary for ment, the board is authorized, upon such

their payment or collection. terms and conditions and in accordance with (2) To collect the equalization fee as di- such regulations as it may prescribe, to make rected by the board, and to account therefor. loans out of the revolving fund to any co(3) In the case of cotton, to issue to the operative association engaged in the purchase, producer a serial receipt for the commodity _ storage, sale, or other disposition, or processwhich shall be evidence of the participating ing of any agricultural commodity, (1) for interest of the producer in the equalization the purpose of assisting any such association fund for the commodity. The board may in in the acquisition, by purchase, construction, such case prepare and issue such receipts andor otherwise, of facilities to be used in the prescribe the terms and conditions thereof. storage, processing, or sale of such agriThe Secretary of the Treasury, upon the cultural commodity, or (2) for the purpose of request of the board, shall have such receipts furnishing funds to such associations for prepared at the Bureau of Engraving and necessary expenditures in federating, con-

Printing. solidating, or merging cooperative associa-

(c) Every person who, in violation of the tions, or (3) for the purpose of furnishing to regulations prescribed by the board, fails to any such association funds to be used by it as collect or account for any equalization fee capital for any agricultural credit corporashall be liable for its amount and toa penalty tion eligible for receiving rediscounts from equal to one-half its amount. Such amount an intermediate-credit bank. In making any and penalty may be recovered together in a such loan the board may provide for the paycivil suit brought by the board in the name ment of such charge, to be determined by the

of the United States. board from time to time, upon each unit of

SEC. 11. (a) In accordance with regula- the commodity handled by the association, as tions prescribed by the board, there shall be will within a period of not more than 20 years established a stabilization fund for each basic repay the amount of such loan, together with agricultural commodity. Such funds shall be interest thereon. The aggregate amounts administered by and exclusively under the loaned under this subdivision and remaining control of the board, and the board shall have unpaid shall not exceed at any one time the the exclusive power of expending the moneys sum of $25,000,000.

in any such fund. There shall be deposited (c) Any loan under subdivision (a) or (b) to the credit of the stabilization fund for a shall bear interest at the rate of 4 per cent basic agricultural commodity, advances from per annum.

the revolving fund hereinafter established, (d) The board may at any time enter into premiums paid for insurance under section a contract with any cooperative marketing 12, and the equalization fees and profits in association engaged in marketing any basic connection with operations by the board in agricultural commodity, insuring such associ-

Cootipce’s Veto oF THE MCNARY-HAUGEN BILL _ 393 ation for periods of 12 months agaimst decline under the insurance contract, as will cover

in the market price for such commodity at the risks of the insurance... . the time of sale by the association from the SEC. 16. (a) There is hereby authorized market price for such commodity at the time to be appropriated, out of any money in the

of delivery to the association. For such in- Treasury not otherwise appropriated, the

surance the association shall pay such sum of $250,000,000, which shall be adpremium, to be determined by the board, upon ministered by the board and used as a reeach unit of the basic agricultural commodity volving fund, in accordance with the provi-

reported by the association for coverage sions of this act... . 462. COOLIDGE’S VETO OF THE McNARY-HAUGEN BILL February 25, 1927 (Congressional Record, 69th Congress, 2d Session, Vol. LXVIII, p. 4771 ff.)

To the Senate: favors at the expense of the farmer who has

Tue conditions which Senate bill 4808 is toiled for years to build up a constructive designed to remedy have been, and still are, farming enterprise to include a variety of unsatisfactory in many cases. No one can crops and livestock that shall, so far as posdeny that the prices of many farm products _ sible, be safe, and keep the soil, the farmer’s have been out of line with the general price chief asset, fertile and productive. level for several years. No one could fail to The bill singles out a few products, chiefly want every proper step taken to assure to — sectional, and proposes to raise the prices of

agriculture a just and secure place in our those regardless of the fact that thousands

economic scheme. Reasonable and construc- of other farmers would be directly penalized.

tive legislation to that end would be thor- If this is a true farm-relief measure, why oughly justified and would have the hearty does it leave out the producers of beef catsupport of all who have the interests of the tle, sheep, dairy products, poultry products, Nation at heart. The difficulty with this par- potatoes, hay, fruit, vegetables, oats, barley, ticular measure is that it is not framed to — rye, flax, and the other important agricultural

aid farmers as a whole, and it is, further- lines? So far as the farmers as a whole are more, calculated to injure rather than pro- concerned this measure is not for them. It is

mote the general public welfare. for certain groups of farmers in certain

It is axiomatic that progress is made sections of the country. Can it be thought

through building on the good foundations that such legislation could have the sanction that already exist. For many years—indeed, of the rank and file of the Nation’s farmers? from before the day of modern agricultural This measure provides specifically for the science—balanced and diversified farming payment by the Federal board of all losses, has been regarded by thoughtful farmers and costs, and charges of packers, millers, cotton scientists as the safeguard of our agriculture. spinners, or other processors who are operat-

The bill under consideration throws this ing under contract with the board. It conaside as of no consequence. It says in effect templates that the packers may be commis-

that-all the agricultural scientists and all the sioned by the Government to buy hogs thinking farmers of the last SO years are enough to create a near scarcity in this counwrong, that what we ought to do is not to _ try, slaughter the hogs, sell the pork products encourage diversified agriculture but instead abroad at a loss, and have their losses, costs,

put a premium on one-crop farming. and charges made good out of the pockets of The measure discriminates definitely farm taxpayers. The millers would be simagainst products which make up what has _ilarly commissioned to operate in wheat or been universally considered a program of corn and have their losses, costs, and charges safe farming. The bill upholds as ideals of paid by farm taxpayers. .. . American farming the men who grow cotton, It seems almost incredible that the procorn, rice, swine, tobacco, or wheat, and ducers of hogs, corn, wheat, rice, tobacco, nothing else. These are to be given special and cotton should be offered a scheme of leg-

394 DOCUMENTS OF AMERICAN HistTorRyY islative relief in which the only persons who year meah greater acreage the next year. are guaranteed a profit are the exporters, This does not necessarily mean a larger crop packers, millers, cotton spinners, and other’ the following year, because adverse weather

processors. conditions may produce a smaller crop on a Clearly this legislation involves govern- larger acreage, but in the long run a con-

ment fixing of prices. It gives the proposed stantly increasing acreage must of necessity Federal board almost unlimited authority to mean a larger average crop... . fix prices on the designated commodities. A board of 12 men are granted almost unThis is price fixing, furthermore, on some of limited control of the agricultural industry the Nation’s basic foods and materials. and can not only fix the price which the proNothing is more certain than that such price ducers of five commodities shall receive for fixing would upset the normal exchange re- their goods, but can also fix the price which lationships existing in the open market and the consumers of the country shall pay for that it would finally have to be extended to these commodities. The board is expected to cover a multitude of other goods and serv- obtain higher prices for the American farmer ices. Government price fixing, once started, by removing the surplus from the home marhas alike no justice and no end. It is an eco- ket and dumping it abroad at a below-cost nomic folly from which this country has _ price. To do this, the board is given the au-

every right to be spared. thority by implication to fix the domestic

This legislation proposes, in effect, that price level, either by means of contracts Congress shall delegate to a Federal Farm which it may make with processors or coopBoard, nominated by farmers, the power to eratives, or by providing for the purchase of fix and collect a tax, called an equalization the commodities in such quantities as will fee, on certain products produced by those bring the prices up to the point which the farmers. That certainly contemplates a re- board may fix. markable delegation of the taxing power. Except as it may be restrained by fear of The purpose of that tax, it may be repeated, foreign importations, the farm board, comis to pay the losses incurred in the disposi- posed of representatives of producers, is tion of the surplus products in order to raise given the power to fix the prices of these the price on that portion of the products necessities of life at any point it sees fit. The

consumed by our own people. law fixes no standards, imposes no restricThis so-called equalization fee is not a tax tions, and requires no regulation of any kind.

for purposes of revenue in the accepted There could be no appeal from the arbitrary sense. It is a tax for the special benefit of decision of these men, who would be under particular groups. As a direct tax on certain constant pressure from their constituents to of the vital necessaries of life it represents push prices as high as possible. To expect the most vicious form of taxation. Its real moderation under these circumstances is to effect is an employment of the coercive pow- disregard experience and credit human naers of Government to the end that certain ture with qualities it does not possess. It is special groups of farmers and processors may _ not so long since the Government was spend-

profit temporarily at the expense of other ing vast sums and through the Department farmers and of the community at large. of Justice exerting every effort to break up The chief objection to the bill is that it combinations that were raising the cost of would not benefit the farmer. Whatever may living to a point conceived to be excessive. be the temporary influence of arbitrary inter- This bill, if it accomplishes its purpose, will ference, no one can deny that in the long run raise the price of the specified agricultural prices will be governed by the law of supply commodities to the highest possible point and and demand. To expect to increase prices and in doing so the board will operate without then to maintain them on a higher level by any restraints imposed by the antitrust laws. means of a plan which must of necessity in- The granting of any such arbitrary power to crease production while decreasing consump- a Government board is to run counter to our tion, is to fly in the face of an economic law traditions, the philosophy of our Governas well established as any law of nature. Ex- ment, the spirit of our institutions, and all perience shows that high prices in any given principles of equity.

CooLtripGeE’s VETO OF THE McCNARY-HAUGEN BILL 395 The administrative difficulties involved structive suggestion. It seeks merely to inare sufficient to wreck the plan. No matter crease the prices paid by the consumer, with how simple an economic conception may be, the inevitable result of stimulating producits application on a large scale in the modern _ tion on the part of the farmer and decreasing world is attended by infinite complexities and consumption on the part of the public. It difficulties. The principle underlying this bill, ignores the fact that production is curbed whether fallacious or not, is simple and easy only by decreased, not increased, prices. In to state; but no one has outlined in definite the end the equalization fee and the entire and detailed terms how the principle is to be machinery provided by the bill under concarried out in practice. How can the board — struction will merely aggravate conditions be expected to carry out after the enactment which are the cause of the farmer’s present of the law what can not even be described distress. prior to its passage? In the meanwhile, exist- We must be careful in trying to help the ing channels and methods of distribution and farmer not to jeopardize the whole agricul-

marketing must be seriously dislocated. tural industry by subjecting it to the tyrThis is even more apparent when we take anny of bureaucratic regulation and control. into consideration the problem of administer- That is what the present bill will do. But ing the collection of the equalization fee. The aside from all this, no man can foresee what

bureau states that the fee will have to be the effect on our economic life will be of collected either from the processors or the disrupting the long-established and delicately transportation companies, and dismisses as adjusted channels of commerce. That it will impracticable collections at the point of sale. be far-reaching is undeniable, nor is it beIn the case of transportation companies it yond the range of possibility that the present points out the enormous difficulties of col- bill, if enacted into law, will threaten the

lecting the fee in view of the possibility of very bases of our national prosperity,

shipping commodities by unregistered vehi- through dislocation, the slowing up of induscles. In so far as processors are concerned, it try, and the disruption of the farmer’s home

estimates the number at 6,632, without con- market, which absorbs 90 per cent of his sidering the number of factories engaged in products... . the business of canning corn or manufactur- The effect of this plan will be continuously ing food products other than millers. Some to stimulate American production and to pile conception of the magnitude of the task may up increasing surpluses beyond the world debe had when we consider that if the wheat, mand. We are already overproducing. It has the corn, and the cotton crops had been un-_ been claimed that the plan would only be der operation in the year 1925, collection used in the emergency of occasional surplus would have been required from an aggregate which unduly depresses the price. No such of 16,034,466,679 units. The bureau states limitations are placed in the bill. But on the that it will be impossible to collect the equal- other hand the definition of surplus is the

ization fee in full. ‘surplus over domestic requirements” and as The Dill will not succeed in providing a we have had such a surplus in most of the practical method of controlling the agricul- commodities covered in the bill for 50 years

tural surplus, which lies at the heart of the and will have for years to come it means whole problem. In the matter of controlling continuous action. It is said that by the auoutput, the farmer is at a disadvantage as tomatic increase of the equalization fee to compared with the manufacturer. The latter meet the increasing losses on enlarged dumpis better able to gauge his market, and in the __ ing of increasing surplus that there would be

face of falling prices can reduce production. restraint on production. This can prove efThe farmer, on the other hand, must operate fective only after so great an increase in over a longer period of time in producing his _ production as will greatly enlarge our exports

crops and is subject to weather conditions on all the commodities except cotton. With and disturbances in world markets which such increased surpluses dumped from the can never be known in advance. In trying to United States on to foreign markets the find a solution for this fundamental problem world prices will be broken down and with of the surplus, the present bill offers no con- them American prices upon which the pre-

396 DOCUMENTS OF AMERICAN HIsToRY mium is based will likewise be lowered to the a legalized restraint of trade in these compoint of complete disaster to American farm- modities and establish a species of monopoly ers. It is impossible to see how this bill can under Government protection, . . . For many

work. generations such practices have been deSeveral of our foreign markets have agri- nounced by law as repugnant to the public culture of their own to protect and they have welfare. It can not be that they would now

laws in force which may be applied to dump- __ be found to be beneficial to agriculture.

ing and we may expect reprisals from them This measure is so long and involved that against dumping agricultural products which it is impossible to discuss it without going will even more diminish our foreign markets. into many tiresome details. Many other reaThe bill is essentially a price-fixing bill, be- sons exist why it ought not to be approved, cause in practical working the board must but it is impossible to state them all without arrive in some way at the premium price writing a book. The most decisive one is that which will be demanded from the American it is not constitutional. This feature is disconsumer, and it must fix these prices in the _ cussed in an opinion of the Attorney General, contracts at which it will authorize purchases herewith attached and made a part hereof, by flour millers, packers, other manufactur- so that I shall not consider the details of that ers, and such cooperatives as may be used, phase of my objections. Of course it includes for the board must formulate a basis upon some good features. Some of its provisions, which the board will pay losses on the export intended to aid and strengthen cooperative

of their surplus... . marketing, have been borrowed from pro-

The main policy of this bill is an entire posals that do represent the general trend of reversal of what has been heretofore thought constructive thought on the agricultural to be sound. Instead of undertaking to se- problem. In this measure, however, these cure a method of orderly marketing which provisions are all completely subordinated to will dispose of products at a profit, it pro- the main objective, which is to have the poses to dispose of them at a loss. It runs Government dispose of exportable surpluses counter to the principle of conservation, at a loss and make some farmer taxpayers

which would require us to produce only what foot the bill. This is not a measure to help cocan be done at a profit, not to waste our soil operative marketing. Its effect, on the conand resources producing what is to be sold at _ trary, is to eliminate the very conditions of

a loss to us for the benefit of the foreign advantage that now induce farmers to join consumer. It runs counter to the well-con- together to regulate and improve their own sidered principle that a healthy economic business. ...

condition is best maintained through a free CALVIN COOLIDGE. play of competition by undertaking to permit

| 274 U. 8. 200

463. BUCK v. BELL 1927

Error to the Supreme Court of Appeals of State menace but if incapable of procreating might of Virginia. A statute of Virginia, March 20, be discharged with safety and become self1924, provided for the sterilization of inmates supporting with benefit to themselves and to of State-supported institutions who should be society. . . .

found to be affected with hereditary insanity. We have seen more than once that the Hormes, J... . An Act of Virginia... public welfare may call upon the best citizens recites that the health of the patient and for their lives. It would be strange if it could the welfare of society may be promoted in not call upon those who already sap the certain cases by the sterilization of mental strength of the State for these lesser sacri-

defectives, under careful safeguard, etc. fices, often not felt to be such by those .. . 5 that the Commonwealth is supporting concerned, in order to prevent our being in various institutions many defective per- swamped with incompetence. It is better for sons who if now discharged would become a_ all the world, if instead of waiting to exe-

Nixon v. HERNDON (TEXAS WHITE PRIMARY CASE) 397 cute degenerate offspring for crime, or to let plied to the multitudes outside. It is the them starve for their imbecility, society can usual last resort of constitutional arguments prevent those who are manifestly unfit from to point out shortcomings of this sort. But continuing their kind. The principle that sus- the answer 1s that the law does all that is tains compulsory vaccination is broad enough needed when it does all that it can, indicates to cover cutting the Fallopian. ... Three a policy, applies it to all within the lines, and

generations of imbeciles are enough. seeks to bring within the lines all similarly But, it is said, however it might be if this situated so far and so fast as its means al-

reasoning were applied generally, it fails low....

when it is confined to the small number who Judgment affirmed. Bur er, J., dissentare in the institutions named and is not ap-__ ing.

464. NIXON v. HERNDON (TEXAS WHITE PRIMARY CASE) 273 U. 8S. 536 1927

Writ of error to the district court of the United ments to the Constitution of the United States for Western District of Texas. After States. The defendants moved to dismiss Reconstruction, the Southern States resorted to upon the ground that the subject matter of a great varicty of contrivances to evade the re- the cuit was political and not within the juris-

quirements of the Fifteenth Amendment. The diction of the court and that no violation most popular of these devices of recent years has been the expedient of excluding negroes of the Amendments was shown. The suit was

from participation in party primaries. This ex- dismissed and a writ of error was taken diclusion is gencrally attained by indirection: the rectly to this court. Here no argument was effort of Texas to exclude negroes from partici- made on behalf of the defendants but a brief pation in the primaries of the Democratic party was allowed to be filed by the attorney gentook the form of an express prohibition. For an eral of the state... .

ass and Party.

excellent discussion of negro participation in The important question is whether the Poti in the South, see P. Lewinsohn, Race, ctatute can be sustained. But although we state it as a question the answer does not Homes, J. This is an action against the seem to us open to a doubt. We find it unjudges of elections for refusing to permit the necessary to consider the 15th Amendment,

plaintiff to vote at a primary election in because it seems to us hard to imagine a Texas. It lays the damages at $5,000. The more direct and obvious infringement of the petition alleges that the plaintiff is a negro, 14th. That Amendment, while it applies to a citizen of the United States and of Texas all, was passed, as we know, with a special and a resident of El Paso, and in every way intent to protect the blacks from discrimiqualified to vote, as set forth in detail, ex- nation against them. .. . That Amendment cept that the statute to be mentioned inter- “not only gave citizenship and the privileges feres with his right; that on July 26, 1924, a of citizenship to persons of color, but it primary election was held at El Paso for the denied to any state the power to withhold nomination of candidates for a senator and from them the equal protection of the laws.

representatives in Congress and state and ... What is this but declaring that the law other offices, upon the Democratic ticket; in the states shall be the same for the black that the plaintiff, being a member of the as for the white; that all persons, whether Democratic party, sought to vote, but was colored or white, shall stand equal before the

denied the right by defendants; that the de- laws of the states, and, in regard to the nial was based upon a statute of Texas en- colored race, for whose protection the acted in May, 1923, and designated article Amendment was primarily designed, that no 3093a, by the words of which “in no event discrimination shall be made against them by shall a negro be eligible to participate in a law because of their color?” [Buchanan v.

Democratic party primary election held in Wailey, 245 U.S. 60]... The statute of

the state of Texas,” etc., and that this statute Texas, in the teeth of the prohibitions reis contrary to the 14th and 15th Amend- ferred to, assumes to forbid negroes to take

398 DOCUMENTS OF AMERICAN HISTORY part in a primary election the importance of but there are limits, and it is too clear for which we have indicated, discriminating extended argument that color cannot be against them by the distinction of color made the basis of a statutory classification alone. States may do a good deal of classify- affecting the right set up in this case.

ing that it is difficult to believe rational, Judgment reversed.

465. BARTOLOMEO VANZETTI’S LAST STATEMENT IN COURT April 9, 1927 (O. K. Fraenkel, The Sacco-Vanzetti Case, p. 138 ff.) Probably no criminal case in American history the money. I can live with my two arms attracted as much attention as did the trial of | and live well. But besides that, I can live

Nicola Sacco and Bartolomeo Vanzetti for the even without work with my arm for murder of Alexander Beradelli at South Brain- other people. I have had plenty of chance

tree, Massachusetts, April 1920. Inradical the to 0live independent! d to waa |i hat course of the trial much was 15, made of the pendently an ha Wwe

beliefs and activities of the defendants, and it ‘he world conceives to be a higher life than was alleged that Judge Thayer had been guilty ot to gain our bread with the sweat of our of prejudice against the defendants and of con- Drow... . duct unbecoming in a judge. The widespread Well, I want to reach a little point farther, belicf that the defendants had not received a and it is this—that not only have I not been fair trial and that the conviction had _ been trying to steal in Bridgewater, not only have found on grounds having to do with their J not been in Braintree to steal and kill and political doctrines and their foreign character, have never steal or kill or spilt blood in all led to extraordinary efforts on their by my life, liberals throughout the world. Afterbehalf the sentence , . not only have I struggled hard of death was imposed on the defendants, Gover- against crimes, but I have refused myseli the

nor Fuller was persuaded to appoint a dis- commodity or glory of life, the pride of

tinguished committee, consisting of President life of a good position because in my conLowell of Harvard University, President Strat- sideration it is not right to exploit man... .

ton of the M.1.T. and Judge Robert Grant, Now, I should say that I am not only into revicw the case. The committce’s report sus- pocent of all these things, not only have I tained the findings of the Court, but concluded never committed a real crime in my life— that Judge Thayer had been guilty of a “grave though some sins, but not crimes—not only breach of official decorum . The execution of have I struggled all my life to eliminate garded by many as on a par with the execution times that the official law and the official of witches in seventeenth century Salem. The oral condemns, but also the crime that the Records of the Trial were published in six Official moral and the official law sanctions

Sacco and Vanzetti on August 23, 1927 was re- .

volumes by Holt and Co. and sanctifies,—the exploitation and the op-

pression of the man by the man, and if

Yes. What I say is that Iam innocent, not there is a reason why I am here as a guilty

only of the Braintree crime but also of man, if there is a reason why you in a few the Bridgewater crime. That I am not only minutes can doom me, it is this reason and innocent of these two crimes, but in all my none else.

life I have never stole and I have never I beg your pardon. There is the more good killed and I have never spilled blood. That man I ever cast my eyes upon since I lived, is what I want to say. And it is not all. Not} a man that will last and will grow always only am I innocent of these two crimes, not more near and more dear to the people, as only in all my life I have never stole, never far as into the heart of the people, so long killed, never spilled blood, but I have strug- as admiration for goodness and for sacrifice

gled all my life, since I began to reason, to. will last. I mean Eugene Debs. ... He

eliminate crime from the earth. know, and not only he but every man of unEverybody that knows these two arms _ derstanding in the world, not only in this coun-

knows very well that I did not need to go try but also in the other countries, men that in between the street and kill a man to take we have provided a certain amount of a

TREATIES OF ARBITRATION WITH GERMANY 399 record of the times, they all stick with us, old father—but maybe you would be beside the flower of mankind of Europe, the better us in good Justice at this time. writers, the” greatest thinkers, of Europe, When you sentenced me at the Plymouth have pleaded in our favor. The scientists, trial you say, to the best part of my memory, the greatest scientists, the greatest statesmen of my good faith, that crimes were in acof Europe, have pleaded in our favor. The cordance with my principle,—something of people of foreign nations have pleaded in that sort—and you take off one charge, if I

our favor. remember it exactly, from the jury. The

Is it possible that only a few on the jury, jury was so violent against me that they only two or three men, who would condemn found me guilty of both charges, because

their mother for worldly honor and for there were only two... .

earthly fortune; is it possible that they are We were tried during a time that has now right against what the world, the whole passed into history. I mean by that, a time world has say it is wrong and that I know when there was hysteria of resentment and

that it is wrong? If there is one that I hate against the people of our principles,

should know it, if it is right or if it is wrong, against the foreigner, against slackers, and it it is Land this man. You see it is seven years scems to me—rather, I am positive, that

that we are in jail. What we have suffered both you and Mr. Katzmann has done all during those years no human tongue can say, what it were in your power in order to work and yet you see me before you, not trem- out, in order to agitate still more the passion

bling, you see me looking you in your eyes of the juror, the prejudice of the juror, straight, not blushing, not changing color, not against us... .

ashamed or in fear... . Well, I have already say that I not only We have proved that there could not have am not guilty of these crimes, but I never been another Judge on the face of the earth commit a crime in my life—I have never more prejudiced and more cruel than you _ steal and I have never kill and I have never have been against us. We have proved that. spilt blood, and I have fought against the Still they refuse the new trial. We know, and crime, and I have fought and I have sacriyou know in your heart, that you have been ficed myself even to eliminate the crimes against us from the very beginning, before that the law and the church legitimate and you see us. Before you see us you already sanctify. know that we were radicals, that we were This is what I say: I would not wish to a underdogs, that we were the enemy of the dog or to a snake, to the most low and misinstitution that you can believe in good faith fortunate creature on the earth—I would in their goodness—I don’t want to condemn not wish to any of them what I have had to that—and that it was easy on the time of suffer for things that I am not guilty of. the first trial to get a verdict of guiltiness. But my conviction is that I have suffered We know that you have spoke yourself for things that I am guilty of. I am suffering and have spoke your hostility against us, because I am a radical and indeed I am a and your despisement against us with friends radical; I have suffered because I was an of yours on the train, at the University Club, Italian, and indeed I am an Italian; I have of Boston, on the Golf Club of Worcester, suffered more for my family and for my beMassachusetts. I am sure that if the people loved than for myself; but I am so convinced who know all what you say against us would — to be right that if you could execute me two

have the civil courage to take the stand, times, and if I could be reborn two other maybe your Honor—I am sorry to say this times, I would live again to do what I have because you are an old man, and I have an’ done already. I have finished. Thank you.

466. TREATIES OF ARBITRATION AND CONCILIATION WITH GERMANY May 5, 1928 (United States Treaty Series, No. 774, 775) Article II of the Kellogg Pact provided that “the never be sought except by pacific means.” It settlement of all disputes or conflicts ... shall remained to provide the machinery by which

400 DOCUMENTS OF AMERICAN HISTORY this sentiment might be converted into reality. right made by one against the other under In December 1927 the United States submitted treaty or otherwise, which it has not been to France the text of a treaty for arbitration ; possible to adjust by diplomacy, which have this was ratified the following February, and not been adjusted as a result of reference to negotiations with other powers for the con- an appropriate Commission of conciliation, clusion of treaties of arbitration and concilia- 224 which ave Justiciable in their nature by tion. Unlike the traditional treaties of arbitra- Teas5on of being susceptible of decision by

the Department of State at once entered into . i eae

tion, these treaties made no exception for the application of the principles of law or disputes involving “national honor and vital in- equity, shall be submitted to the Permanent

terest”, though the treaty of arbitration did Court of Arbitration established at The except disputes involving the maintenance of Hague by the convention of October 18, the Monroe Doctrine. The Treaties with 1907, or to some other competent tribunal, Germany are given as examples of those entered 4. shajl be decided in each case by special into with most of the powers of the world. See agreement, which special agreement shall provide for the organization of such tribunal

references, Doc. No. 467. oon ;

if necessary, define its powers, state the ques-

1. TREATY OF ARBITRATION tion or questions at issue, and settle the The President of the United States of terms of reference. America and the President of the German The special agreement in each case shall

Reich be made on the part of the United States of Determined to prevent so far as in their America by the President of the United

power lies any interruption in the peaceful States of America by and with the advice and relations now happily existing between the consent of the Senate thereof, and on the

two nations; part of Germany in accordance with its conDesirous of reaffirming their adherence to _ stitutional laws.

the policy of submitting to impartial decision Art. II. The provisions of this treaty shall all justiciable controversies that may arise not be invoked in respect of any dispute the

between them; and subject matter of which

Eager by their example not only to dem- (a) is within the domestic jurisdiction of onstrate their condemnation of war as an either of the high contracting parties, instrument of national policy in their mutual (6) involves the interests of third parties. relations, but also to hasten the time when (c) depends upon or involves the maintethe perfection of international arrangements mance of the traditional attitude of the for the pacific settlement of international United States concerning American quesdisputes shall have eliminated forever the tions, commonly described as the Monroe possibility of war among any of the powers doctrine,

of the world; (d) depends upon or involves the observ-

Have decided to conclude a treaty of ar- ance of the obligations of Germany in acbitration and for that purpose they have ap- cordance with the Covenant of the League of pointed as their respective plenipotentiaries Nations.

The President of the United States of Art. III. The present treaty shall be rat-

America, Frank B. Kellogg, Secretary of ified by the President of the United States of

State of the United States, and America by and with the advice and consent

The President of the German Reich, Herr of the Senate thereof and by the President of Friedrich von Prittwitz und Gaffron, German the German Reich in accordance with GerAmbassador to the United States of Amer- man constitutional laws.

ica: The ratifications shall be exchanged at Who, having communicated to one another Washington as soon as possible, and the

their full powers found in good and due _ treaty shall take effect on the date of the form, have agreed upon the following arti- exchange of the ratifications. It shall there-

cles: after remain in force continuously unless and Arr. I. All differences relating to interna- until terminated by one year’s written notice tional matters in which the high contracting given by either high contracting party to the

parties are concerned by virtue of a claim of _ other. ,

THE KELLOGG PEACE PAcT 401 In faith whereof the respective plenipo- being understood that he shall not be a cititentiaries have signed this treaty in duplicate zen of either country. The expenses of the in the English and German languages, both Commission shall be paid by the two Govtexts having equal force, and hereunto affix ernments in equal proportions.

their seals. The International Commission shall be ap-

Done at Washington the fifth day of May pointed within six months after the exchange in the year of our Lord one thousand nine _ of ratifications of this treaty; and vacancies

hundred and twenty-eight. shall be filled according to the manner of the FRANK B. KELLOGG, original appointment.

F, VON PRITTWITZ. ArT. III. In case the high contracting parties shall have failed to adjust a dispute 2. ‘TREATY OF CONCILIATION by diplomatic methods, and they do not have

The President of the United States of recourse to adjudication by a competent triAmerica and the President of the German _ bunal, they shall at once refer it to the InReich, being desirous to strengthen the bonds ternational Commission for investigation and of amity that bind them together and also to report. The International Commission may, advance the cause of general peace, have however, spontaneously by unanimous agreeresolved to enter into a treaty for that pur- ment offer its services to that effect, and in pose, and have agreed upon and concluded _ such case it shall notify both Governments

the following articles: and request their cooperation in the investi-

Art. I. Any disputes arising between the _ gation. Government of the United States of Amer- The high contracting parties agree to furica and the Government of Germany, of nish the Permanent International Commiswhatever nature they may be, shall, when _ sion with all the means and facilities required ordinary diplomatic proceedings have failed for its investigation and report.

and the high contracting parties do not have The report of the commission shall be recourse to adjudication by a competent tri- completed within one year after the date bunal, be submitted for investigation and on which it shall declare its investigation to report to a permanent International Com- have begun, unless the high contracting mission constituted in the manner prescribed parties shall shorten or extend the time by in the next succeeding article; the high con- mutual agreement. The report shall be pretracting parties agree not to declare war or pared in triplicate; one copy shall be prebegin hostilities during such investigation sented to each Government, and the third

and before the report is submitted. retained by the commission for its files. Art. II. The International Commission The high contracting parties reserve the shall be composed of five members, to be ap-__ right to act independently on the subject

pointed as follows: One member shall be matter of the dispute after the report of the chosen from each country, by the Government commission shall have been submitted... . thereof; one member shall be chosen by each Washington the fifth of May one thousand Government from some third country; the nine hundred and twenty-eight.

fifth member shall be chosen by common FRANK B. KEeEtuocc. agreement between the two Governments, it F. von Prittwitz. 467. THE KELLOGG PEACE PACT August 27, 1928

: (U. S. Statutes at Large, Vol. XXXXVI, p. 2343) In June, 1927, Aristide Briand proposed to the and August 27 the pact was signed by fifteen United States government a treaty outlawing powers: subsequently sixty-two nations adhered war between France and the United States. to the agreement. The Treaty was introduced to Secretary of State Kellogg proposed to broaden the Senate December 4, 1928, and passed with the pact to embrace all nations. In April, 1928, only one dissenting vote—that of Senator Blaine notes were forwarded to the major European of Wisconsin. see, D. P. Myers, Origin and powers requesting their adherence to the pact, Conclusion of the Paris Pact; D. H. Miller, The

402 DocUMENTS OF AMERICAN HISTORY Peace Pact of Paris; A. J. Toynbee, Survey of Have decided to conclude a treaty and for

International Relations, 1928, Part I. that purpose have appointed as their respecThe President of the German Reich, the tive plenipotentiaries: . . .

President of the United States of America, Who, having communicated to one another His Majesty the King of the Belgians, the their full powers found in good and due form President of the French Republic, His Maj- have agreed upon the following articles: esty the King of Great Britain, Ireland and Art. 1. The high contracting parties solthe British Dominions beyond the Seas, Em- emmly declare in the names of their respecperor of India, His Majesty the King of tive peoples that they condemn recourse to Italy, His Majesty the Emperor of Japan, war for the solution of international controthe President of the Republic of Poland, the versies, and renounce it as an instrument of President of the Czechoslovak Republic, national policy in their relations with one Deeply sensible of their solemn duty to another.

promote the welfare of mankind; Art. 2. The high contracting parties agree Persuaded that the time has come when a that the settlement or solution of all disputes frank renunciation of war as an instrument or conflicts of whatever nature or of whatof national policy should be made to the end ever origin they may be, which may arise that the peaceful and friendly relations now among them, shall never be sought except by existing between their peoples may be per- pacific means.

petuated ; ArT. 3. The present treaty shall be ratified

Convinced that all changes in their rela- by the high contracting parties named in the tions with one another should be sought only preamble in accordance with their respective by pacific means and be the result of a peace- constitutional requirements, and shall take ful and orderly process, and that any signa- effect as between them as soon as all their tory power which shall hereafter seek to pro- several instruments of ratification shall have mote its national interests by resort to war been deposited at Washington. should be denied the benefits furnished by This treaty shall, when it has come into ef-

this treaty; fect as prescribed in the preceding paragraph, Hopeful that, encouraged by their ex- remain open as long as may be necessary for ample, all the other nations of the world will adherence by all the other powers of the join in this humane endeavor and by adher- world. Every instrument evidencing the ading to the present treaty as soon as it comes herence of a power shall be deposited at into force bring their peoples within the Washington and the treaty shall immediately scope of its beneficent provisions, thus unit- upon such deposit become effective as being the civilized nations of the world in a tween the power thus adhering and the other common renunciation of war aS an instru- powers parties hereto. ...

ment of their national policy;

468. THE PHILOSOPHY OF RUGGED INDIVIDUALISM Speech by Herbert Hoover, New York City

: October 22, 1928

(The New Day. Campaign Speeches of Herbert Hoover, p. 149 ff.) With this speech Hoover closed his campaign This campaign now draws near a close. for the Presidency in 1928. It expresses the The platforms of the two parties defining philosophy not only of Hoover, but of the Re- principles and offering solutions of various publican party in the years after the World pational problems have been presented and

War. For the campaign, see, R. V. Peel and T. C. are being earnest! ‘dered b ; Donnelly, The 1928 Campaign: An Analysis. For ; g earnestly considered Dy our peo

an earlier exposition of the doctrines herein ple... . announced, see H. Hoover, American Indi- In my acceptance speech I endeavored to

vidualism; The Challenge to Liberty. outline the spirit and ideals by which I

THe PHILOSOPHY OF RUGGED INDIVIDUALISM 403 : would be guided in carrying that platform and state socialism. The acceptance of these

into administration. Tonight I will not deal ideas would have meant the destruction of with the multitude of issues which have been self-government through centralization of already well canvassed. I intend rather to government. It would have meant the undiscuss some of those more fundamental dermining of the individual initiative and principles and ideals upon which I believe enterprise through which our people have the government of the United States should grown to unparalleled greatness.

be conducted... . The Republican Party from the beginning After the war, when the Republican party resolutely turned its face away from these assumed administration of the country, we ideas and these war practices. . . . When were faced with the problem of determina- the Republican Party came into full power it tion of the very nature of our national life. went at once resolutely back to our fundaDuring one hundred and fifty years we have mental conception of the state and the rights

builded up a form of self-government and a and_ responsibilities of the individual. social system which is peculiarly our own. It Thereby it restored confidence and hope in differs essentially from all others in the the American people, it freed and stimulated world. It is the American system. It is just as enterprise, it restored the government to its definite and positive a political and social position as an umpire instead of a player in system as has ever been developed on earth. the economic game. For these reasons the It is founded upon a particular conception of | American people have gone forward in progself-government in which decentralized local ress while the rest of the world has halted, responsibility is the very base. Further than and some countries have even gone backthis, it is founded upon the conception that wards. If anyone will study the causes of only through ordered liberty, freedom, and retarded recuperation in Europe, he will find equal opportunity to the individual will his much of it due to stifling of private initiative

| initiative and enterprise spur on the march _ on one hand, and overloading of the governof progress. And in our insistence upon equal- ment with business on the other.

ity of opportunity has our system advanced There has been revived in this campaign,

beyond all the world. - however, a series of proposals which, if

During the war we necessarily turned to adopted, would be a long step toward the the government to solve every difficult eco- abandonment of our American system and nomic problem. The government having ab- a surrender to the destructive operation of sorbed every energy of our people for war, governmental conduct of commercial busithere was no other solution. For the preser- ness. Because the country is faced with difhvation of the state the Federal Government culty and doubt over certain national probbecame a centralized despotism which under- lems—that is prohibition, farm relief, and took unprecedented responsibilities, assumed electrical power—our opponents propose autocratic powers, and took over the business that we must thrust government a long way of citizens. To a large degree we regimented into the businesses which give rise to these our whole people temporarily into a social- problems. In effect, they abandon the tenets istic state. However justified in time of war of their own party and turn to state socialif continued in peace-time it would destroy ism as a solution for the difficulties presented not only our American system but with it~ by all three. It is proposed that we shall

our progress and freedom as well. change from prohibition to the state pur-

When the war closed, the most vital of | chase and sale of liquor. If their agricultural all issues both in our own country and _ relief program means anything, it means that throughout the world was whether govern- the government shall directly or indirectly ments should continue their wartime owner- buy and sell and fix prices of agricultural ship and operation of many instrumentali- products. And we are to go into the hydroties of production and distribution. We were electric power business. In other words, we , challenged with a peace-time choice between are confronted with a huge program of govthe American system of rugged individualism ernment in business.

and a European philosophy of diametrically There is, therefore, submitted to the opposed doctrines—doctrines of paternalism American people a question of fundamental

404 DOCUMENTS OF AMERICAN History principle. That is: shall we depart from the if political freedom is to be preserved. Even principles of our American political and eco- if Governmental conduct of business could nomic system, upon which we have advanced give us more efficiency instead of less effibeyond all the rest of the world, in order to ciency, the fundamental objection to it would adopt methods based on principles destruc- remain unaltered and unabated. It would detive of its very foundations? And I wish to — stroy political equality. It would increase emphasize the seriousness of these proposals. rather than decrease abuse and corruption. It I wish to make my position clear; for this would stifle initiative and invention. It would goes to the very roots of American life and undermine the development of leadership. It

progress. would cramp and cripple the mental and spir-

I should like to state to you the effect that itual energies of our people. It would extinthis projection of government in business guish equality and opportunity. It would dry would have upon our system of self-govern- up the spirit of liberty and progress. For ment and our economic system. That effect these reasons primarily it must be resisted. would reach to the daily life of every man For a hundred and fifty years liberalism has and woman. It would impair the very basis found its true spirit in the American system, of liberty and freedom not only for those not in the European systems. left outside the fold of expanded bureaucracy I do not wish to be misunderstood in this

but for those embraced within it. statement. I am defining a general policy. Let us first see the effect upon self-govern- It does not mean that our government is to ment. When the Federal Government under- part with one iota of its national resources takes to go into commercial business it must without complete protection to the public at once set up the organization and adminis- _ interest. I have already stated that where the tration of that business, and it immediately government is engaged in public works for

finds itself in a labyrinth, every alley of purposes of flood control, of navigation, of which leads to the destruction of self-govern- irrigation, of scientific research or national

ment. defense, or in pioneering a new art, it will

Commercial business requires a concentra- at times necessarily produce power or comtion of responsibility. Self-government re- modities as a by-product. But they must be quires decentralization and many checks and a by-product of the major purpose, not the balances to safeguard liberty. Our Govern- major purpose itself. ment to succeed in business would need to Nor do I wish to be misinterpreted as bebecome in effect a despotism. There at once lieving that the United States is free-for-

begins the destruction of self-govern- all and devil-take-the-hindmost. The very

ment. ... essence of equality of opportunity and of

It is a false liberalism that interprets it- American individualism is that there shall be self into the government operation of no domination by any group or combination commercial business. Every step of bureau- in this republic, whether it be business or cratizing of the business of our country pol- political. On the contrary, it demands ecosons the very roots of liberalism—that 1s, nomic justice as well as political and social political equality, free speech, free assembly, justice. It is no system of laissez faire. free press, and equality of opportunity. It is I feel deeply on this subject because dur-

the road not to more liberty, but to less ing the war I had some practical experience liberty. Liberalism should be found not with governmental operation and control. I striving to spread bureaucracy but striving to have witnessed not only at home but abroad set bounds to it. True liberalism seeks all the many failures of government in business. legitimate freedom first in the confident be- I have seen its tyrannies, its injustices, its lief that without such freedom the pursuit of | destructions of self-government, its underall other blessings and benefits is vain. That mining of the very instincts which carry our belief is the foundation of all American prog- people forward to progress. I have witnessed

ress, political as well as economic. the lack of advance, the lowered standards Liberalism is a force truly of the spirit, a of living, the depressed spirits of people force proceeding from the deep realization working under such a system. My objection that economic freedom cannot be sacrificed is based not upon theory or upon a failure

THE STIMSON DOCTRINE 405 to recognize wrong or abuse, but I know the come nearer to the abolition of poverty, to adoption of such methods would strike at the abolition of fear of want, than humanity

the very roots of American life and would has ever reached before. Progress of the destroy the very basis of American progress. past seven years is the proof of it. This alone Our people have the right to know whether furnishes the answer to our opponents, who we can continue to solve our great problems ask us to introduce destructive elements into without abandonment of our American sys- the system by which this has been accom-

tem. I know we can.... plished... .

And what have been the results of the I have endeavored to present to you that

American system? Our country has become’ the greatness of America has grown out of the land of opportunity to those born with- a political and social system and a method of out inheritance, not merely because of the control of economic forces distinctly its own wealth of its resources and industry but be- —our American system—which has carried cause of this freedom of initiative and enter- this great experiment in human welfare farprise. Russia has natural resources equal to ther than ever before in all history. We are ours. Her people are equally industrious, but nearer today to the ideal of the abolition of she has not had the blessings of one hundred _ poverty and fear from the lives of men and and fifty years of our form of government women than ever before in any land. And

and our social system. I again repeat that the departure from our

By adherence to the principles of decen- American system by injecting principles detralized self-government, ordered liberty, structive to it which our opponents propose, equal opportunity, and freedom to the in- will jeopardize the very liberty and freedom dividual, our American experiment in hu- of our people, and will destroy equality of man welfare has yielded a degree of well- opportunity not alone to ourselves but to

being unparalleled in all the world. It has our children... .

469. THE STIMSON DOCTRINE Address by Secretary of State Stimson before the Council on Foreign Relations February 6, 1931 (W. Lippman and W. O. Scroggs, eds. The United States in World Affairs, 1931, p. 332 ff.) President Wilson had attempted to establish policy, as thus observed, was to base the act moral standards as a test for recognition of new of recognition not upon the question of the governments in foreign states. This policy had constitutional legitimacy of the new governinvolved the United States in no little embar- ment but upon its de facto capacity to ful-

rassment and difficulty in dealing with Latin Gill its oblieat; b £ the famil

American countries. It was abandoned by the Obligations as a mem cro © tamuty

_ Hoover administration, and the abandonment 0! Nations. This country recognized the right formalized in this statement by Secretary Stim- Of other nations to regulate their own interson. President Roosevelt has followed the Stim- nal affairs of government and disclaimed any son rather than the Wilson policy in his dealings attempt to base its recognition upon the cor-

with foreign nations. rectness of their constitutional action. Said Mr. Jefferson in 1792:

. .. The practice of this country as to the We certainly cannot deny to other nations recognition of new governments has been _ that principle whereon our own Government substantially uniform from the days of the is founded, that every nation has a right to

administration of Secretary of State Jef- govern itself internally under what forms ferson in 1792 to the days of Secretary of it pleases, and to change these forms at its State Bryan in 1913. There were certain own will; and externally to transact busislight departures from this policy during the ness with other nations through whatever Civil War, but they were manifestly due to organ it chooses, whether that be a king, the exigencies of warfare and were aban- convention, assembly, committee, president, doned immediately afterwards. This general or whatever it be.

406 DOCUMENTS OF AMERICAN HisToRY In these essentials our practice corre- this new policy into effect in respect to the sponded with the practice of the other nations recognition of the then Government of Mex-

of the world. ico held by President Victoriano Huerta. Al-

The particular considerations upon which though Huerta’s government was in de facto our action was regularly based were well possession, Mr. Wilson refused to recognize stated by Mr. Adee, long the trusted Assist- it, and he sought through the influence and ant Secretary of State of this Government, pressure of his great office to force it from

as follows: power. Armed conflict followed with the

Ever since the American Revolution en- forces of Mexico, and disturbed relations betrance upon diplomatic intercourse with for- tween us and that republic lasted until a com-

eign states has been de facto, dependent paratively few years ago. upon the existence of three conditions of In his sympathy for the development of fact: the control of the administrative ma- free constitutional institutions among the chinery of the state; the general acqui- people of our Latin American neighbors, Mr. escence of its people; and the ability and will- Wilson did not differ from the feelings of the

ingness of their government to discharge great mass of his countrymen in the United international and conventional obligations. States ... but he differed from the practice The form of government has not been a con- of his predecessors in seeking actively to proditional factor in such recognition; in other pagate these institutions in a foreign country

words, the de jure element of legitimacy of by the direct influence of this Government

title has been left aside. and to do this against the desires of the

With the advent of President Wilson’s authorities and people of Mexico. administration this policy of over a century The present administration has declined to was radically departed from in respect to the follow the policy of Mr. Wilson and has folRepublic of Mexico, and, by a public declara- lowed consistently the former practice of tion on March 11, 1913, it was announced this Government since the days of Jefferson.

that As soon as it was reported to us, through our

Cooperation (with our sister republics of diplomatic representatives, that the new govCentral and South America) is possible only ernments in Bolivia, Peru, Argentina, Brazil, when supported at every turn by the orderly and Panama were in control of the adminprocesses of Just government based upon istrative machinery of the state, with the aplaw, not upon arbitrary or irregular force. parent general acquiescence of their people,

We hold, as I am sure that all thoughtful and that they were willing and apparently leaders of republican government everywhere able to discharge their international and conhold, that just government rests always upon ventional obligations, they were recognized the consent of the governed, and that there by our Government. And, in view of the ecocan be no freedom without order based upon nomic depression, with the consequent need

law and upon the public conscience and ap- for prompt measures of financial stabilizaproval. We shall look to make these prin- tion, we did this with as little delay as posciples the basis of mutual intercourse, re- sible in order to give those sorely pressed spect, and helpfulness between our sister countries the quickest possible opportunities

republics and ourselves. for recovering their economic poise. Mr. Wilson’s government sought to put

470. HOOVER’S VETO OF THE MUSCLE SHOALS BILL Message to the Senate, March 3, 1931 (Message from the President of the United States, Government Printing Office) In 1918 President Wilson had authorized, as a a matter of prolonged and bitter controversy. wartime measure, the construction of govern- Conservatives insisted that they be turned over ment plants at Muscle Shoals on the Tennessee to private companies; progressives under the River for the manufacture of nitrates, and of leadership of Senator Norris of Nebraska addams to generate electric power. After the war vocated government ownership and operation. the disposition of these plants and dams became Henry Ford at one time offered to take over the

Hoover’s VETO OF THE MUSCLE SHOALS BILL 407 plants, but no satisfactory arrangement could to much higher considerations. There are be made. In 1928 a bill providing for govern- many localities where the Federal Government operation passed Congress only to be ment is justified in the construction of great vetoed by President Coolidge. A similar bill of — gams and reservoirs, where navigation, flood 1931 was vetoed by President Hoover: the veto Control, reclamation or stream regulation are

message reiterated the Republican doctrine of . ’ : | d where they are individualism in business and the belief that of dominant Importance, and waere Eney government ownership and operation was an beyond the capacity or purpose of private or approach to socialism. For the ultimate settle- local government capital to construct. In

ment of the question, see Doc. No. 478. these cases power is often a by-product and should be disposed of by contract or lease.

To the Senate: But for the Federal Government dcliberI return herewith, without my approval, ately to go out to build up and expand an Senate Joint Resolution 49, “To provide for occasion to the major purpose of a power the national defense by the creation of a and manufacturing business is to break down corporation for the operation of the Gov- _ the initiative and enterprise of the American

ernment properties at and near Muscle people; it is destruction of equality of opShoals in the State of Alabama; to authorize portunity of our people; it is the negation of

the letting of the Muscle Shoals properties the ideals upon which our civilization has under certain conditions; and for other pur- been based.

poses.” This bill raises one of the important issues This bill proposes the transformation of confronting our people. That is squarely the the war plant at Muscle Shoals, together issue of Federal Government ownership and with important expansions, into a perma- operation of power and manufacturing businently operated Government institution for mess not as a minor by-product but as a the production and distribution of power and major purpose. Involved in this question is

the manufacture of fertilizers... . the agitation against the conduct of the

The plants at Muscle Shoals were orig- power industry. The power problem is not inally built for a production of nitrates for to be solved by the project in this bill. The use in war explosives. I am advised by the remedy for abuses in the conduct of that War Department that the very large devel- industry lies in regulation and not by the opment in the United States by private enter- Federal Government entering upon the busiprise in the manufacture of synthetic nitro- ness itself. I have recommended to the Congen now affords an ample supply covering gress on various occasions that action should any possible requirements of war. It is there- be taken to establish Federal regulation of fore unnecessary to maintain this plant for interstate power in cooperation with State

any such purposes. authorities. This bill would launch the Fed-

This bill provides that the President for a eral Government upon a policy of ownership period of 12 months may negotiate a lease of and operation of power utilities upon a basis the nitrate plants for fertilizer manufacture of competition instead of by the proper Govunder detailed limitations, but in failure to ernment function of regulation for the promake such a lease the bill makes it manda- tection of all the people. I hesitate to con-

tory upon the Government to manufacture template the future of our institutions, of nitrogen fertilizers at Muscle Shoals by the our country if the preoccupation of its employment of existing facilities or by mo- officials is to be no longer the promotion of dernizing existing plants or by any other justice and equal opportunity but is to be

process. ... devoted to barter in the markets. That is I am firmly opposed to the Government not liberalism, it is degeneration. entering into any business the major pur- This proposal can be effectively opposed pose of which is competition with our citi- upon other and perhaps narrower grounds. zens. There are national emergencies which The establishment of a Federal-operated require that the Government should tem- power business and fertilizer factory in the porarily enter the field of business, but they Tennessee Valley means Federal control must be emergency actions and in matters from Washington with all the vicissitudes of where the cost of the project is secondary national politics and the tyrannies of remote

408 DocUMENTS OF AMERICAN HIstToRy bureaucracy imposed upon the people of that within their borders and would invade and

valley without voice by them in their own weaken the authority of local governresources, the overriding of State and local ment... . government, the undermining of State and The real development of the resources and local responsibility. The very history of this the industries of the Tennessee Valley can project over the past 10 years should be a_ only be accomplished by the people in that complete demonstration of the ineptness of valley themselves. Muscle Shoals can only the Federal Government to administer such be administered by the people upon the enterprise and of the penalties which the ground, responsible to their own commu-

local community suffers under it. nities, directing them solely for the benefit This bill distinctly proposes to enter the of their communities and not for purposes

field of powers reserved to the States. It of pursuit of social theories or national would deprive the adjacent States of the politics. Any other course deprives them of

right to control rates for this power and _ liberty... .

would deprive them of taxes on property HERBERT HOOVER. 471. THE MOONEY-BILLINGS CASE Conclusions of the sub-committee of the Section on Lawless Enforcement of Law of the Wickersham Committee June, 1931 (The Mooney-Billings Report, Suppressed by the Wickersham Committee, p. 242-3) On July 22, 1916, a bomb was thrown into a and C. S. Stern, made an extensive report on Preparedness parade in San Francisco, killing the Mooney-Billings Case. This Report was not nine and wounding some forty people. Two days published along with the other reports of the later a Bomb Squad was organized and promptly Wickersham Committee, because the Committee

arrested Thomas Mooney, a labor agitator, his felt that it was not proper to inquire into parwife, Rena Mooney, Warren K. Billings, a ma- ticular cases but only into general principles. chinist, E. D. Nolan, a labor leader, and Israel Allusions to the Mooney-Billings Report, howWeinberg, a jitney driver, and charged them ever, brought a demand for a publication of with the crime. The Grand Jury returned indict- the document, and when Congress failed to ments against each of the prisoners for murder. provide for publication it was privately printed. Subsequently the charges against all but Mooney The Wickersham Committee Report is in 71 and Billings were dismissed. These two were Congress, 2d Session, House Doc. No. 252, 14 convicted of murder in the first degree; Bill- parts. On the Mooney-Billings Case see also ings was sentenced to life imprisonment and H. T. Hart, The Case of Thomas J. Mooney Mooney to death. In view of the character of and Warren K. Billings: Abstract and Analysis of the trial and certain doubts as to the justice of record before Governor Young of California; the conviction, President Wilson in September E. J. Hopkins, What Happened in the Mooney 1917 requested the Mediation Commission to Case. See also, A. G. Hays, Trial by Prejudice; investigate the case. The Commission reported E. M. Borchard, Convicting the Innocent.

the following January that there was a basis | for the feeling that an injustice was oon ne oo, CONCLUSIONS recommended that the President

intercede on behalf of the prisoners with the Considering the records as a whole, we

Governor of California. Wilson wrote three conclude: |

letters to the Governor, and eventually the sen- (1) There was never any scientific attence of Mooney was commuted to life im- tempt made, by either the police or the proprisonment. The case became a cause célébre and secution to discover the perpetrators of the

attracted world wide attention. Ceaseless efforts crime. The investigation was in reality of various groups in the United States to re- 4 n6q over to a private detective who used

open the vt clits secure 3 pavcon om te his position to cause the arrest of the deret a sub-committee of the Wickersham Com- fendants. The police investigation was remittee on Law Observance and Enforcement, duced to a hunt for evidence to convict the consisting of Professor Z. Chafec, W. H. Pollack arrested defendants.

New State IcE CoMPANy v. LIEBMANN 409 (2) There were flagrant violations of the the trials, despite such knowledge in the pos-

statutory laws of California by both the session of the prosecution of prior contrapolice and the prosecution in the manner in dictory stories told by these witnesses as to which the defendants were arrested and held make their mere reproduction a vouching incommunicado and in the subsequent search for perjured testimony. of their homes to procure evidence against (7) Witnesses were coached in their testi-

them. mony to a degree that approximated sub(3) After the arrest of the defendants, ornation of perjury. There is a strong in-

witnesses were brought to the jails to “iden- ference that some of this coaching was done tify” them, and their “identifications” were by prosecuting officials, and other evidence

accepted by the police and the prosecution, points to knowledge by the prosecuting despite the fact that these witnesses were officials that such coaching was being pracnever required to pick the defendants out of _ticed on other witnesses.

a line-up, or to demonstrate their accuracy (8) The prejudice against the defendants,

by any other test. stimulated by newspaper publicity, was fur-

(4) Immediately after the arrests of the ther appealed to at the trials by unfair and defendants there commenced a deliberate at- intemperate arguments to the jury in the tempt to arouse public prejudice against opening and closing statements of the prothem, by a series of almost daily interviews secuting attorneys. given to the press by prosecuting officials. (9) After the trials, the disclosures cast(5) Witnesses were procured at the trials ing doubt on the justice of the convictions with information in the hands of the pro- were minimized, and every attempt made to secution that seriously challenged the cred- defeat the liberation of the defendants, by a ibility of the witnesses, but this information campaign of misrepresentation and propa-

was deliberately concealed. ganda carried on by the officials who had (6) Witnesses were permitted to testify at prosecuted them.

472. NEW STATE ICE COMPANY v. LIERMANN 285 U. S. 262 1932

Appeal from the United States Circuit Court of business of manufacturing, selling, or distrib-

Appeals for the Tenth District. An act of the uting ice, like that of. the grocer, the dairyOklahoma Legislature, 1925, declared that the man, the butcher, or the baker, may be sub-

manulacture, sale, and of icebeisapermitted jected to appropriate regulations in the public business, thatdistribution no one shall © Gnown : the posed of affiliated national and international oneness 0 neuen reamizations unions, organizing committees, local indus-

(CIO). trial unions and industrial union councils. ARTICLE II SEc. 2. Certificates of affiliation shall be OBJECTS issued to national and international unions

The objects of the organization are: and organizing committees by the Executive First. To bring about the effective organi- Board. zation of the working men and women of SEc. 3. Certificates of affiliation shall be America regardless of race, creed, color, or issued to local industrial unions by the Execnationality, and to unite them for common ~ utive Board. The Executive Board shall issue

CONSTITUTION OF THE C. I. O. 693 rules governing the conduct, activities, af- an affiliate, shall be elected by a majority fairs, and the suspension and expulsion of of the votes cast at each regular convention, local industrial unions. It shall be the duty _ shall serve for the term of one year and shall of the Executive Board to combine local in- assume office immediately upon election. In dustrial unions into national or international the event that more than two candidates are

unions or organizing committees. Any local nominated for any one of the foregoing industrial union or group of local industrial offices, and no one candidate receives a maunions may request the Executive Board to jority of the votes cast, all except the two authorize such combination. The decision of candidates receiving the highest votes shall the Executive Board may be appealed to the be eliminated from the list of candidates, convention, provided, however, that pending 4nd a second vote taken. sts the appeal the decision shall remain in full Sec. 3. The convention shall elect the Ex-

force and effect. ecutive Board which shall be composed of

Sec. 4, Certificates of affiliation shall be 0N€ member from each affiliated national issued to industrial union councils by the nd international union and organizing com-

Executive Board. Industrial Union Councils ™uttee. Each such affiliate shall nominate one shall be organized upon a city, state or other Of its duly qualified officers for such mem-

regional basis as may be deemed advisable ership to the Executive Board. The Presi-

by the Executive Board and shall be com- et, secretary-Treasurer and Vice Presi-

. ; , dents shall be members of the Executive

posed of the locals of national unions, inter- Board by virtue of their office national unions and organizing committees, Sec. 5. National hea dquarters ‘shall be and local industrial unions and local indus- maintained at Washington, D. C. trial union councils within the territorial limits of such council. It shal] be the duty of national and international unions and

organizing committees to direct their locals ARTICLE V

to affiliate with the proper industrial union THE DUTIES OF THE OFFICERS

councils. It shall be the duty of all local industrial unions and local industrial union

councils to affiliate with the proper industrial PRESIDENT union councils. The Executive Board shall SECTION 1. The President shall preside issue rules governing the conduct, activities, over the convention and meetings of the affairs, and the suspension and expulsion of | Executive Board, exercise supervision of the industrial union councils. The decision of the affairs of the Organization, and function as

Executive Board may be appealed to the the chief executive officer. convention, provided, however, that pending SEC. 2. The P resident shall interpret the the appeal the decision shall remain in full ™eaning of the Constitution and his inter-

force and effect. pretation shall be subject to review by the

Sec. 6. National or international unions Executive Board. Between sessions of the and organizing committees may not be sus- Executive Board he shall have full power to pended or expelled except upon-a Is two-thirds rect be the reported affairs of the and acts shall toOrganization, the Executive vote at the convention. This provision may Board for its approval. not be amended except by a two-thirds vote SEC. 3. The President shall have author-

at the convention. ity, subject to the approval of the Executive Board, to appoint, direct, suspend or remove.

ARTICLE IV such organizers, representatives, agents and

employees as he may deem necessary. OFFICERS AND EXECUTIVE BOARD SEc. 4. The President shall make full reSECTION 1. The officers shall consist of a ports of the administration of his office and president, secretary-treasurer, and nine vice of the affairs of the Organization to the conpresidents. Each officer shall bea member of _ vention. . . .

DUTI . |

694 DOCUMENTS OF AMERICAN HISTORY :

ARTICLE VI Sec. 3. The Call for a special convention , must include a statement of the particular !

Section 1 The & cutive Ba + hall subject or subjects to be considered at the | ane Executive Hoard shall en- convention and no other business shall be !

force the constitution and carry out the in- transacted at such convention. A special , structions of the conventions, and between convention shall be governed by the provi- : eentions shan have Power to direct the sions for regular conventions. a Sec "7 The Beccutive “Board shall have sore 4. A majority of the delegates seated the power to file charges and conduct hear- SEC. 5, Each national and international : he On such ‘charges ofan sab officer of union and organizing committee and each

ses shail constitute a quorum.

Execahve ee Be wd Or ° er sand th ° the local industrial union shall be entitled to one | Board, on the ground that such vote for each member. Each industrial union | person is guilty of malfeasance or maladmin- council shall be entitled to one vote. : istration, and to make a report to the con- SEC. 6. Each national or international : vention ee Bede appropriate action. union and organizing committee shall be enoa, a copy of hee pve such officer titled to the number of- delegates indicated se)he written Charges a reasonjn the following scale:

able time before the hearing. 5

Up to 5,000 membership, 2 delegates |

ARTICLE VII Over 5,000 membership, 3 delegates CONVENTION Over 10,000 membership, 4 delegates

Over 25,000 membership, 5 delegates SECTION 1. The convention shall be the Over 50,000 membership, 6 delegates supreme authority of the Organization and Over 75,000 membership, 7 delegates except as otherwise provided in the Consti- 100,000 membership, 8 delegates for the

tution, its decisions shall be by a majority first 100,000 members and one addi- :

yee 2. A convention ehall be held each tional delegate for each additional |

&. c 50,000 or majority year- during the months of Octoberfraction or No- ” thereof.

vember at a time and place designated by the Each local industrial union and industrial Executive Board. The Executive Board shall union council shall be entitled to one delegive at least 30 days’ notice of the time and gate. Local industrial unions may combine place which it so designatés. Special conven- with other local industrial unions in a reations may be called upon 30 days’ notice by sonable distance of one another and elect

the Executive Board. delegates to represent them. 570. EMPLOYMENT ACT OF 1946 February 20, 1946 (Public Law 304, 79th Congress)

The Employment Act of 1946 marked a new AN ACT approach vo ne formulation orp ational eco. To declare a national policy on employment,

; pomey Oy 6 EXP 6 production, and purchasing power, and for

ment’s responsibility for full employment. The other purposes

act set up a Council of Economic Advisers nT

authorized to study economic trends and to Sec. 2. The Congress hereby declares that recommend to the President policies to alleviate jt js the continuing policy and responsibility the negative effects of the business cycle. Under of the Federal Government to use all prac-

ling ears ok Bone th nee eon Beyser- ticable means consistent with its needs and exercise profound influence on the formulation opigations ang ote essen cons idera-

of economic policies. See E. G. Nourse, The tions 0 nationa POncy, with t C assistance 1950’s Come First; E. G. Nourse, Economics in and cooperation of industry, agriculture, la-

the Public Service; S. E. Harris, Economic bor, and State and local governments, to

Planning; S. K. Bailey, Congress Makes A Law. coordinate and utilize all its plans, functions,

EMPLOYMENT AcT OF 1946 695 and resources for the purpose of creating man, who shall act as chairman in the aband maintaining, in a manner calculated to _ sence of the chairman... . foster and promote free competitive enter- (c) It shall be the duty dnd function of prise and the general welfare, conditions the Council— under which there will be afforded useful (1) to assist and advise the President employment opportunities, including self- in the preparation of the Economic Re-

employment, for those able, willing, and port; seeking to work, and to promote maximum (2) to gather timely and authoritaemployment, production, and purchasing tive information concerning economic

power. developments and economic trends, both Sec. 3. (a) The President shall transmit current and prospective, to analyze and to the Congress within sixty days after the interpret such information in the light beginning of each regular session (com- of the policy declared in section 2 for mencing with the year 1947) an economic the purpose of determining whether report setting forth (1) the levels of em- such developments and trends are inployment, production, and purchasing power terfering, or are likely to interfere, with

obtaining in the United States and such the achievement of such policy, and to levels needed to carry out the policy de- compile and submit to the President clared in section 2; (2) current and fore- studies relating to such developments seeable trends in the levels of employment, and trends; production, and purchasing power; (3) a (3) to appraise the various programs

review of the economic program of the Fed- and activities of the Federal Governeral Government and a review of economic ment in the light of the policy declared

conditions affecting employment in the in section 2 for the purpose of deterUnited States or any considerable portion mining the extent to which such prothereof during the preceding year and of grams and activities are contributing, their effect upon employment, production, and the extent to which they are not and purchasing power; and (4) a program contributing, to the achievement of for carrying out the policy declared in sec- such policy, and to make recommendation 2, together with such recommendations tions to the President with respect for legislation as he may deem necessary or thereto;

desirable... . (4) to develop and recommend to the Sec. 4. (a) There is hereby created in the President national economic policies to Executive Office of the President a Council foster and promote free competitive of Economic Advisers. The Council shall be enterprise, to avoid economic fluctuacomposed of three members who shall be ap- tions or to diminish the effects thereof,

pointed by the President, by and with the and to maintain employment, producadvice and consent of the Senate, and each tion, and purchasing power; of whom shall be a person who, as a result (5) to make and furnish such studies, of his training, experience, and attainments, reports thereon, and recommendations is exceptionally qualified to analyze and in- with respect to matters of Federal ecoterpret economic developments, to appraise nomic policy and legislation as the Presiprograms and activities of the Government dent may request. in the light of the policy declared in section (d) The Council shall make an annual 2, and to formulate and recommend national report to the President in December of each

economic policy to promote employment, year.... production, and purchasing power under free Sec. 5. (a) There is hereby established competitive enterprise. Each member of the a Joint Committee on the Economic Report,

Council shall receive compensation at the to be composed of seven Members of the rate of $15,000 per annum. The President Senate, to be appointed by the President of shall designate one of the members of the the Senate, and seven Members of the House Council as chairman and one as vice chair- of Representatives, to be appointed by the

696 DOCUMENTS OF AMERICAN HIsTORY | Speaker of the House of Representatives. mittees of the Congress dealing with The party representation on the joint com- legislation relating to the Economic Remittee shall as nearly as may be feasible port, not later than May 1 of each reflect the relative membership of the ma- year (beginning with the year 1947) to jority and minority parties in the Senate file a report with the Senate and the

and House of Representatives. House of Representatives containing its (b) It shall be the function of the joint findings and recommendations with re-

committee— spect to each of the main recommenda(1) to make a continuing study of tions made by the President in the matters relating to the Economic Re- Economic Report, and from time to

port; time to make such other reports and (2) to study means of coordinating recommendations to the Senate and programs in order to further the policy House of Representatives as it deems of(3) thisasAct; and advisable. ... a guide to the several com-

}

571. THE CONTROL OF ATOMIC ENERGY November 15, 1946 (79th Congress, 2nd Session. Senate Comm. Monograph No. 1) The atomic bomb had been created by the scien- Atomic Energy; J. P. Baxter, Scientists Against

tists of the United States, Great Britain, and Time. . Canada. The end of the war and the creation of the United Nations at once raised, in critical form,

the question of the control of the new weapon. The American public, alarmed by the potential-

ities of Russian control of the atom bomb, In- Pene of the agreed declaration on atomic sisted upon keeping the “secret” of the bomb, , though physicists were generally agreed that this energy by the President of the United

was a secret that could not be kept. American States, the Prime M mister of the United

policy on the atomic bomb was formulated ina A%gdom, and the Prime Minister of Canada

declaration made jointly by President Truman, . the Prime Minister of the United Kingdom, and The President of the United States, the the Prime Minister of Canada. On January 24, Prime Minister of the United Kingdom, 1946, the United Nations established an Atomic and the Prime Minister of Canada have Energy Commission. The American position, as jscyed the following statement:

presented by Bernard Baruch, was that the 1. We recognize that the application of

atomic weapon should not be made available to ‘entific dj ies to th thod other nations until adequate provisions for serecent scientl ve aiscoveries to the me oc curity and inspection had been agreed upon; the and practice of War has placed at the disRussian position, as presented by Andrei Gro- posal of mankind means of destruction myko, was that manufacture of the bomb should hitherto unknown, against which there can be outlawed and stock piles destroyed at once, be no adequate military defense, and in the and that the American plan for control and in- | employment of which no single nation can in spection would involve an unwarranted inter- fact have a monopoly.

ference with the domestic affairs of sovereign 2. We desire to emphasize that the restates. The American plan was, in effect, adopted. sponsibility for devising means to insure that

On the problem of atomic control; see Bernard the new discoveries shall be used for the

Brodie, Absolute Weapon; P. S, M. Blackett, ,

Fear, War, and the Bomb; Dexter Masters, ed. benefit of mankind, instead of as a means One World or None; E. L. Woodward, Some Po- of destruction, rests not on our nations litical Consequences of the Atomic Bomb; US. alone, but upon the whole civilized world. Govt. Printing Office, Essential Information on Nevertheless, the progress that we have

Tuer ConTROL OF ATOMIC ENERGY 697 made in the development and use of atomic methods and processes as would be required energy demands that we take an initiative for industrial uses.

in the matter, and we have accordingly met We are not convinced that the spreading together to consider the possibility of inter- of the specialized information regarding the

national action— practical application of atomic energy, be(a) to prevent the use of atomic energy fore it is possible to devise effective, recip-

for destructive purposes; rocal, and enforceable safeguards acceptable (b) to promote the use of recent and fu- to all nations, would contribute to a conture advances in scientific knowledge, par- structive solution of the problem of the ticularly in the utilization of atomic energy, atomic bomb. On the contrary, we think it for peaceful and humanitarian ends. might have the opposite effect. We are, how3. We are aware that the only complete ever, prepared to share, ona reciprocal basis protection for the civilized world from the with others of the United Nations, detailed destructive use of scientific knowledge lies information concerning the practical indusin the prevention of war. No system of safe- trial application of atomic energy Just as guards that can be devised will of itself pro- soon as effective enforceable safeguards vide an effective guaranty against production against its use for destructive purposes can

of atomic weapons by a nation bent on be devised. aggression. Nor can we ignore the possibility 7. In order to attain the most effective of the development of other weapons or of means of entirely eliminating the use of

new methods of warfare which may consti- atomic energy for destructive purposes and tute as great a threat to civilization as the promoting its widest use for industrial and

military use of atomic energy. humanitarian purposes, we are of the opinion 4. Representing, as we do, the three coun-__— that at the earliest practicable date a com-

tries which possess the knowledge essential mission should be set up under the United to the use of atomic energy, we declare at Nations Organization to prepare recommendthe outset our willingness, as a first contri- ations for submission to the Organization.

bution, to proceed with the exchange of The Commission should be instructed to

fundamental scientific information and the proceed with the utmost dispatch and should interchange of scientists and scientific litera- be authorized to submit recommendations

ture for peaceful ends with any nation that from time to time dealing with separate

will fully reciprocate. phases of its work.

5. We believe that the fruits of scientific In particular the Commission should make

research should be made available to all na- specific proposals—

tions, and that freedom of investigation and (a) for extending between all nations the free interchange of ideas are essential to the exchange of basic scientific information for progress of knowledge. In pursuance of this peaceful ends; policy, the basic scientific information essen- (6) for control of atomic energy to the tial to the development of atomic energy for extent necessary to insure its use only for peaceful purposes has already been made peaceful purposes;

available to the world. It is our intention (c) for the elimination from national

that all further information of this character armaments of atomic weapons and of all that may become available from time to other major weapons adaptable to mass detime should be similarly treated. We trust struction; that other nations will adopt the same policy, (d) for effective safeguards by way ol thereby creating an atmosphere of reciprocal inspection and other means to protect comconfidence in which political agreement and plying States against the hazards of viola-

cooperation will flourish. tions and evasions.

(6. We have considered the question of the 8. The work of the Commission should disclosure of detailed information concerning proceed by separate stages, the successful the practical industrial application of atomic completion of each one of which will develop energy. The military exploitation of atomic the necessary confidence of the world before energy depends, in large part, upon the same _— the next stage is undertaken. Specifically it

698 DocUMENTS OF AMERICAN HisTorRy is considered that Commission might well hearted support to the United Nations Or- | devote its attention first to the wide ex- ganization, and by consolidating and extend- | change of scientists and scientific informa- ing its authority, thus creating conditions of tion, and as a second stage to the develop- mutual trust in which all peoples will be free ment of full knowledge concerning natural to devote themselves to the arts of peace.

resources of raw materials. It is our firm resolve to work without reser9, Faced with the terrible realities of the vation to achieve these ends.

application of science to destruction, every Harry S. TRUMAN, nation will realize more urgently than before President of the United States. the overwhelming need to maintain the rule C. R. ATTLEE, of law among nations and to banish the Prime Minister of the United Kingdom.

scourge of war from the earth. This can W. L. MackenzigE KING,

only be brought about by giving whole- Prime Minister of Canada.

572. THE ATOMIC ENERGY COMMISSION August 1, 1946 (Public Law 585, 79th Congress, 2nd Session) The general background of this measure is objective of assuring the common defense stated in Section 1. The act was amended in and security, the development and _ utiliza1954 to provide for greater cooperation among tion of atomic energy shall, so far as practhe free nations and increased use of atomic ticable, be directed toward improving the power by private industry. See, H. D. Smyth, public welfare, increasing the standard of livdices ed. The Absolute Weedon. Abanie Power ing, strengthening free competition in private

and the World Order; Julia E. Johnsen, The enterprise, and promoting world Peace.

Atomic Bomb. (b) Purpose oF Act.—It is the purpose of this Act to effectuate the policies set out

AN ACT in section 1 (a) by providing, among others,

for the following major programs relating For the development and control of atomic to atomic energy:

energy. (1) A program of assisting and fostering private research and development to encour-

DECLARATION OF POLICY age maximum Scientific progress; SEcTION 1. (a) FinpINGS AND DECLARA- (2) A program for the control of scientific TION.—Research and experimentation in the and technical information which will permit

field of nuclear chain reaction have attained the dissemination of such information to

the stage at which the release of atomic encourage scientific progress, and for the energy on a large scale is practical. The sharing on a reciprocal basis of information significance of the atomic bomb for military concerning the practical industrial applicapurposes is evident. The effect of the use of tion of atomic energy as soon as effective atomic energy for civilian purposes upon and enforceable safeguards against its use the social, economic, and political structures for destructive purposes can be devised;

of today cannot now be determined. It is a (3) A program of federally conducted refield in which unknown factors are involved. search and development to assure the GovTherefore, any legislation will necessarily be ernment of adequate scientific and technical subject to revision from time to time. Jt is accomplishment; reasonable to anticipate, however, that tap- (4) A program for Government control of

ping this new source of energy will cause the production, ownership, and use of fisprofound changes in our present way of life. sionable material to assure the common de. Accordingly, it is hereby declared to be the _fense and security and to insure the broadest policy of the people of the United States possible exploitation of the fields; and

that, subject at all times to the paramount (5) A program of administration which

Tue ATOMIC ENERGY COMMISSION 699 will be consistent with the foregoing policies utilization of atomic weapons. The Commisand with international arrangements made by __ sion shall keep the Committee fully informed the United States, and which will enable the of all such matters before it and the ComCongress to be currently informed so as to mittee shall keep the Commission fully intake further legislative action as may here- formed of all atomic energy activities of the

after be appropriate. War and Navy Departments. The Committee

shall have authority to make written rec-

ORGANIZATION ommendations to the Commission on matSec. 2. (a) Atomic Enrrcy Commis- ters relating to military applications from

SION.— time to time as it may deem appropriate. If (1) There is hereby established an Atomic the Committee at any time concludes that Energy Commission (herein called the Com- any action, proposed action, or failure to act

mission), which shall be composed of five of the Commission on such matters is admembers. Three members shall constitute 2 verse to the responsibilities of the Departquorum of the Commission. The President ments of War or Navy, derived from the shall designate one member as Chairman of Constitution, laws, and treaties, the Commit-

the Commission. tee may refer such action, proposed action, (2) Members of the Commission shall be or failure to act to the Secretaries of War appointed by the President, by and with the and Navy. If either Secretary concurs, he

advice and consent of the Senate. may refer the matter to the President, whose (4) There are hereby established within decision shall be final. the Commission—

(A) a General Manager, who shall dis- RESEARCH

charge such of the administrative and exec- Sec. 3. (a) ResearcH AssIsTANce.—The utive functions of the Commission as the Commission is directed to exercise its powers

Commission may direct. in such manner as to insure the continued

(B) a Division of Research, a Division conduct of research and development activof Production, a Division of Engineering, ities in the fields specified below by private and a Division of Military Application... . or public institutions or persons and to assist (b) GENERAL Apvisory COMMITTEE.— in the acqusition of an ever-expanding fund There shall be a General Advisory Commit- of theoretical and practical knowledge in tee to advise the Commission on scientific such fields. To this end the Commission is and technical matters relating to materials, authorized and directed to make arrangeproduction, and research and development, ments (including contracts, agreements, and to be composed of nine members, who shall loans) for the conduct of research and debe appointed from civilian life by the Presi- velopment activities relating to—

dent. Each member shall hold office for a (1) nuclear processes;

term of six years. (2) the theory and production of atomic (c) Mirrrary Liarson CoMMITTEE.— €nherey, including processes, materials, and There shall be a Military Liaison Committee devices related to such production, consisting of representatives of the Depart- (3) utilization of fissionable and _ radioments of War and Navy, detailed or assigned active materials for medical, biological, thereto, without additional compensation, by health, or military purposes;

the Secretaries of War and Navy in such (4) utilization of fissionable and _ radionumber as they may determine. The Com- active materials and processes entailed in the

mission shall advise and consult with the production of such materials for all other Committee on all atomic energy matters purposes, including industrial uses; and

which the Committee deems to relate to (5) the protection of health during remilitary applications, including the develop- search and production activities.

ment, manufacture, use, and storage of bombs, the allocation of fissionable material PRODUCTION OF FISSIONABLE MATERIAL

for military research, and the control of in- SEC. 4.

formation relating to the manufacture or ...(b) Prowisition.—It shall be unlaw-

700 DOCUMENTS OF AMERICAN HistToRy ful for any person to own any facilities for for use in medical therapy, or (C) for use the production of fissionable material or for pursuant to a license issued under the au-

any person to produce fissionable material, thority of section 7. | except to the extent authorized by subsec- (7) Pusiic LANps.—All uranium, tho- |

tion (c). rium, and all other materials determined pur- , (c) OWNERSHIP AND OPERATION OF Pro- suant to paragraph (1) of this subsection to |

DUCTION FACILITIES.— be peculiarly essential to the production of

(1) OwNeERsHIP oF PropucTIon Facit- fissionable material, contained, in whatever :

IT1Es.—The Commission, as agent of and on concentration, in deposits in the public lands

behalf of the United States, shall be the are hereby reserved for the use of the United exclusive owner of all facilities for the pro- States subject to valid claims, rights, or priv- :

uction it CA) material other than the dateofofthe theInterior enactment , acilitiesofwhich (A) are useful in the con-ileges of thisexisting Act: Theon Secretary duct of research and development activities shall cause to be inserted in every patent, " othe fields SPeciher 3, and (B) conveyance, lease, permit,toor other author-, . not, in the opinioninofsection the Commission, ization hereafter granted use the public have a potential production rate adequate to lands or their mineral resources, under any | enable the operator of such facilities to pro- of which there might result the extraction duce within a reasonable period of time a of any materials so reserved, a reservation sufficient quantity of fissionable material to to the United States of all such materials, produce an atomic bomb or any other atomic whether or not of commercial value, together

weapon. with the right of the United States through

(2) OPERATION OF THE COMMISSION’S its authorized agents or representatives at PRODUCTION FACILITIES.—The Commission is any time to enter upon the land and prospect :

authorized and directed to produce or to for, mine, and remove the same, making just provide for the production of fissionable compensation for any damage or injury occa-

material in its own facilities. sioned thereby. (e) MANUFACTURE OF PRODUCTION FACIL-

iTtes.—Unless authorized by a license issued yrurraRy APPPLICATIONS OF ATOMIC ENERGY

by the Commission, no person may manu- Sec. 6 (a) AuTHoRITY.—The Commission

facture, produce, transfer, or acquire any j. authorized to— facilities for the production of fissionable (1) conduct experiments and do research

material. and development work in the military apCONTROL OF MATERIALS plication of atomic energy; and . Sec. 5. (a) FISSIONABLE MAaTERIALS.— (2) one the production of atomic (2), GovERNMENT OWNERSHIP OF ALL r1S- bombs, atomic bomb parts, or other military

, weapons utilizing materials: SIONABLE right,fissionable title, ane ?exas os aeMATERIAL.—AII cept that such activities shalland beincarried on

. only to the extent that the express consent

terest within or under the jurisdiction of the United States, in or to any fissionable mate- and direction of the President of the United

rial, now or hereafter produced, shall be States has been obtained, which consent and

the property of the;Commission, andbe shall directiat. least once each ie irection shall obtained

be deemed to be vested in the Act. Commission by virtue of this . , ,year. |. (4) DISTRIBUTION OF FISSIONABLE MATE- The President from time to time may di-

RIAL.—Without prejudice to its continued rect the Commission (1) to deliver such ownership thereof, the Commission is au- antities of fissionable materials or weapthorized to distribute fissionable material MS to the armed forces for such use as he owned by it, with or without charge, to ap- deems necessary in the interest of national plicants requesting such material (A) forthe defense or (2) to authorize the armed forces conduct of research or development activities to manufacture, produce, or acquire any either independently or under contract or equipment or device utilizing fissionable maother arrangement with the Commission, (B) _ terial or atomic energy as a military weapon.

Tue ATomMic ENERGY COMMISSION 701 INTERNATIONAL ARRANGEMENTS spect to the use of atomic energy for indus-

SEc. 8. trial purposes; and ... (b) Errect oF INTERNATIONAL Ar- (2) That the dissemination of scientific RANGEMENTS.—Any provision of this Act or and technical information relating to atomic

any action of the Commission to the extent energy should be permitted and encouraged

that it conflicts with the provisions of any 5° as to provide that free interchange of international arrangement made after the ideas and criticisms which is essential to date of enactment of this Act shall be scientific progress. deemed to be of no further force or effect. (3) Whoever, with intent to injure the United States or with intent to secure an PROPERTY OF THE COMMISSION advantage to any foreign nation, acquires Sec. 9. (a) The President shall direct the or attempts or conspires to acquire any docutransfer to the Commission of all interests ment, writing, sketch, photograph, plan, owned by the United States or any Govern- model, instrument, appliance, note or m-

ment agency in the following property: formation involving or incorporating re(1) All fissionable material; all atomic data by shall, upon thereof, eps bestricted punished death orconviction imprisonment for weapons and parts thereof; all facilities, life (but the penalty of death or im tison-

equipment, and materials for the processing, t for lif P * ; d onl P

production, or utilization of fissionable ma- ment oer dati may be Imposec ony eps terial or atomic energy; all processes and recommendation of the Jury and only a. technical information of any kind, and the cases where the offense was committed with

source thereof (including data, drawings, are injure the United States) ; or by a specifications, patents, patent applications, ne re mor than $20,000 or imprisonand other sources) relating to the process- ne or not more than twenty years, oF

ing, production, or utilization of fissionable “ | material or atomic energy; and all contracts, PATENTS AND INVENTIONS

agreements, leases, patents, applications for patents, inventions and discoveries (whether oe any fa) PRODUCTION AND MILITARY

patented or unpatented), and other rights (1) No at t shall hereafter b

of any kind concerning any such items; f 0 patent sian er be 6 anted

(2) All facilities, equipment, and mate- or any invention or discovery which is userials, devoted primarily to atomic energy ful solely in the production of fissionable

research and development; and mater On Oe onecey of hssionaee

(3) Such other property owned by or in Tey tor a murary

the custody or control ot the Manhattan weapo”. Any patent gran ted for any such Engineer District or other Government agen- aes or discovery Is hereby revoked, cies as the President may determine. anc just compensation shall be made there-

CONTROL OF INFORMATION (b) Use oF INVENTIONS FOR RESEARCH.— No patent hereafter granted shall confer any

ty 1, Rowen sal ste pel hs ih resert io any ineton ode semination of restricted data ° e , 1S~ pale to the extent that such invention or manner as to assure the commo “ef a iscovery is used in the conduct of research and security, Consistent with nn rene or eve opment acai in the fields specithe Commission shall be guided by the fol atent heretof te prt ate nis conterree by rad

lowing principles: - discovery ae ere e . OF any invention (1) That until Congress declares by joint tent that such invention or discove is “so resolution that effective and enforceable in- used, and just compensation shall ne made ternational safeguards against the use of _ therefor. atomic energy for destructive purposes have (c) Nonminirary UTILizaTion.— been established, there shall be no exchange (1) It shall be the duty of the Commis-

of information with other nations with re- sion to declare any patent to be affected

702 DOCUMENTS OF AMERICAN HISTORY with the public interest if (A) the invention such facilities and services (at project sites or discovery covered by the patent utilizes or where such facilities and services are not is essential in the utilization of fissionable available) for the housing, health, safety,

material or atomic energy; and (B) the welfare, and recreation of personnel emlicensing of such invention or discovery ployed by the Commission as it may deem under this subsection is necessary to effectu- necessary; ate the policies and purposes of this Act. (2) Whenever any patent has been de- JOINT COMMITTEE ON ATOMIC ENERGY

clared, pursuant to paragraph (1), to be Sec. 15. (a) There is hereby established affected with the public interest— a Joint Committee on Atomic Energy to be (A) The Commission is hereby licensed to composed of nine Members of the Senate to use the invention or discovery covered by be appointed by the President of the Senate, such patent in performing any of its pow- and nine Members of the House of Repre-

ers under this Act. sentatives to be appointed by the Speaker of the House of Representatives. In each GENERAL AUTHORITY instance not more than five members shall Sec. 12. (a) In the performance of its be members of the same political party.

functions the Commission is authorized to— (b) The joint committee shall make con(1) establish advisory boards to advise tinuing studies of the activities of the Atomic with and make recommendations to the Energy Commission and of problems relatCommission on legislation, policies, adminis- ing to the development, use, and control of

tration, research, and other matters; atomic energy. The Commission shall keep (2) establish by regulation or order such the joint committee fully and currently instandards and instructions to govern the pos- formed with respect to the Commission’s session and use of fissionable and byproduct activities. All bills, resolutions, and other materials as the Commission may deem nec- matters in the Senate or the House of Repessary or desirable to protect health or to resentatives relating primarily to the Comminimize danger from explosions and other mission or to the development, use, or con-

hazards to life or property; trol of atomic energy shall be referred to

(3) make such studies and investigations, the joint committee. The members of the obtain such information, and hold such hear- joint committee who are Members of the ings as the Commission may deem necessary Senate shall from time to time report to or proper to assist it In exercising any au- the Senate, and the members of the joint thority provided in this Act, or in the ad- committee who are Members of the House ministration or enforcement of this Act, or of Representatives shall from time to time any regulations or orders issued thereunder. report to the House, by bill or otherwise, (5) acquire such materials, property, their recommendations with respect to matequipment, and facilities, establish or con- ters within the jurisdiction of their respec-

struct such buildings and facilities, and tive Houses which are (1) referred to the modify such buildings and facilities from joint committee or (2) otherwise within the time to time as it may deem necessary, and _jurisdiction of the joint committee. construct, acquire, provide, or arrange for

THE FULBRIGHT ACT 703 573. THE FULBRIGHT ACT August 1, 1946 (Public Law 584, 79th Congress; 2nd Session) At the close of the war millions of dollars worth Hawaii, Alaska (including the Aleutian Isof surplus war materials were left in Allied lands), Puerto Rico, and the Virgin Islands, countries. Senator Fulbright of Arkansas pro- and whose attendance will not deprive citiposed that the money received from the sale of pang of the United States of an opportunity such war surplus to Allied governments should 44 attend such schools and institutions: Probe used to finance cultural and educational in- . terchange. A precedent for this plan could be vided, however, That no such agreement or found in the arrangements whereby the United 48reements shall provide for the use of an

States appropriated half of the indemnity re- aggregate amount of the currencies, or ceived from China after the Boxer uprising to credits for currencies, of any one country in bring Chinese students to the United States. excess of $20,000,000 or for the expenditure of the currencies, or credits for currencies,

of any one foreign country in excess of $1,000,000 annually at the official rate of exchange for such currencies, unless otherwise

AN ACT authorized by Congress, nor shall any such agreement relate to any subject other than To Amend the Surplus Property Act of 1944. the use and expenditure of such currencies

Sec. 2. Section 32 (b) (2) In carrying or credits for currencies for the purposes out the provisions of this section, the Secre- herein set forth: Provided further, That for tary of State is hereby authorized to enter the purpose of selecting students and eduInto an executive agreement or agreements cational institutions qualified to participate

with any foreign government for the use jin this program, and to supervise the exof currencies, or credits for currencies, of change program authorized herein, the such government acquired as a result of President of the United States is hereby such surplus property disposals, for the pur- authorized to appoint a Board of Foreign pose of providing, by the formation of Scholarships, consisting of ten members, foundations or otherwise, for (A) financing who shall serve without compensation, comstudies, research, instruction, and other edu- _ posed of representatives of cultural, educa-

cational activities of or for American citi- tional, student and war veterans groups, zens in schools and institutions of higher and including representatives of the United learning located in such foreign country, or States Office of Education, the United States of the citizens of such foreign country in Veterans’ Administration, State educational American schools and institutions of higher institutions, and privately endowed educa-

learning located outside the continental tional institutions: And Provided further

United States, Hawaii, Alaska (including the That in the selection of American citizens

Aleutian Islands), Puerto Rico, and the for study in foreign countries under this Virgin Islands, including payment for trans- paragraph preference shall be given to apportation, tuition, maintenance, and other plicants who shall have served in the military expenses incident to scholastic activities; or or naval forces of the United States during (B) furnishing transportation for citizens of | World War I or World War II, and due such foreign country who desire to attend consideration shall be given to applicants American schools and institutions of higher from all geographical areas of the United

learning in the continental United States, States.

704 DOCUMENTS OF AMERICAN History 574. THE TRUMAN DOCTRINE March 12, 1947 (Congressional Record, March 12, 1947) The immediate background of this message to able to cope with the situation. The Greek pongress cated in tne ‘ext,to are underwrite we that Army is small equipped. ates was the and de-poorly : : four 3 It needs fense of free states against “totalitarian re- supplies and equipment if it 1s to restore gimes” was widely hailed as a sharp new turn the authority to the Government throughout

in American foreign policy, a world-wide equiv- Greek territory. . teas

alent of the Monroe Doctrine. In the Soviet Greece must have assistance if it is to

Union it was held to be an open threat on the become a self-supporting and self-respecting part of the United States aaginst Russian-dom- democracy. The United States must supply inated areas and Russian expansion. See F. L. this assistance. We have already extended to Schuman, Soviet Politics; E. H. Carr, The Soviet Greece certain types of relief and economic Impact on the Western World; E. A. Speiser, aid but these are inadequate. There is no

af ne Ome’ States and the Near East; D. E. other country to which democratic Greece

Monn Vol a key of Ataturk; H. Truman can turn. No other nation is willing and

* vores able to provide the necessary support for a democratic Greek Government.

Th€ gravity ; t theof sj ; ; The British Government, which has been the situation which con- helping Greece, can give no further financial fronts the world today necessitates my ap- 9 economic aid after March 31. Great Brit-

Compress aor a jon and o the ain finds itself under the necessity of reduc-

Ongress, he foreign policy and the na- ing or liquidating its committments in sevtional | seem of the mresent oitention ech eral parts of the world, including Greece.

. Se to We havetoconsidered the..United I wish present you at this how time for oe , i Na-

your consideration and decision, concerns tions might assist In this CTISIS. But the

Greece and Turkey. situation is an urgent one requiring immeThe United States has received from the diate action, and the United Nations and its

lated organizations are not in a ‘° position Greek Government an urgent appeal for ; financial and economic assistance. Prelimi- ‘° extend help of the kind that is required. nary reports from the American Economic °° ° ]

Mission now in Greece and reports from the Greece’s neighbor, Turkey, also deserves American Ambassador in Greece corroborate our attention. The future of Turkey as an the statement of the Greek Government that Independent and economically sound state is assistance is imperative if Greece is to sur- Clearly no less important to the freedom-

vive as a free nation. loving peoples of the world than the future

I do not believe that the American people of Greece. The circumstances In which and the Congress wish to turn a deaf ear to Turkey finds itself today are considerably | the appeal of the Greek Government. different from those of Greece. Turkey has The very existence of the Greek state is been spared the disasters that have beset today threatened by the terrorist activities Greece. And during the war, the United ot several thousand armed men, led by States and Great Britain furnished Turkey Communists, who defy the Government’s with material aid. Nevertheless, Turkey now |

authority at a number of points, partic- needs our support. . ularly along the northern boundaries. Acom- ‘Since the war Turkey has sought addi-

mission appointed by the United Nations tional financial assistance from Great Brit- . Security Council is at present investigating in and the United States for the purpose disturbed conditions in Northern Greece and Ff effecting the modernization necessary for : alleged border violations along the frontiers the maintenance of its national integrity. between Greece on the one hand and Al- That integrity is essential to the preservabania, Bulgaria and Yugoslavia on the other. tion of order in the Middle East. Meanwhile, the Greek Government is un- The British Government has informed us

THE TrRuMAN DocrRINE 705 that, owing to its own difficulties, it can no elections, guarantees of individual liberty, longer extend financial or economic aid to freedom of speech and religion, and freedom Turkey. As in the case of Greece, if Turkey from political oppression. is to have the assistance it needs, the United The second way of life is based upon the States must supply it. We are the only coun- __ will of the minority forcibly imposed upon

try able to provide that help. the majority. It relies upon terror and op-

I am fully aware of the broad implications pression, a controlled press and radio, fixed involved if the United States extends assist- elections, and the suppression of personal ance to Greece and Turkey, and I shall dis- freedoms. cuss these implications with you at this time. I believe that it must be the policy of One of the primary objectives of the for- the United States to support free peoples eign policy of the United States is the crea- who are resisting attempted subjugation by tion of conditions in Which we and other armed minorities or by outside pressures. nations will be able to work out a way of I believe that we must assist free peoples life free from coercion, This was a funda- to work out their own destinies in their own mental issue in the war with Germany and way. Japan. Our victory was won over countries I believe that our help should be primarily which sought to impose their will, and their through economic and financial aid which is

way of life, upon other nations. essential to economic stability and orderly To ensure the peaceful development of political processes.

nations, free from coercion, the United The world is not static, and the status

States has taken a leading part in establish- quo is not sacred. But we cannot allow

ing the United Nations. The United Nations changes in the status quo in violation of the is designed to make possible lasting freedom _ charter of the United Nations by such methand independence for all its members. We ods as coercion, or by such subterfuges as shall not realize our objectives, however, un- __ political infiltration. In helping free and inless we are willing to help free peoples to dependent nations to maintain their freedom, maintain their free institutions and their na- the United States will be giving effect to the tional integrity against aggressive movements __ principles of the charter of the United Nathat seek to impose on them totalitarian re- tions.

gimes. This is no more than a frank recog- It is necessary only to glance at a map nition that totalitarian regimes imposed on to realize that the survival and integrity of free peoples, by direct or indirect aggression, the Greek nation are of grave importance undermine the foundations of international in a much wider situation. If Greece should peace and hence the security of the United fall under the control of an armed minority,

States. the effect upon its neighbor, Turkey, would

The peoples of a number of countries of | be immediate and serious. Confusion and disthe world have recently had totalitarian re- order might well spread throughout the engimes forced upon them against their will. tire Middle East. The Government of the United States has Moreover, the disappearance of Greece as made frequent protests against coercion and an independent state would have a profound intimidation, in violation of the Yalta Agree- effect upon those countries in Europe whose ment, in Poland, Rumania and Bulgaria. I peoples are Struggling against great diffmust also state that in a number of other culties to maintain their freedoms and their countries there have been similar develop- independence while they repair the damages

ments. of war.

At the present moment in world history It would be an unspeakable tragedy if

nearly every nation must choose between these countries, which have struggled so long alternative ways of life. The choice is too against overwhelming odds, should lose that

often not a free one. victory for which they sacrificed so much.

One way of life is based upon the will of Collapse of free institutions and loss of inthe majority, and is distinguished by free dependence would be disastrous not only for institutions, representative government, free them but for the world. Discouragement and

706 DOCUMENTS OF AMERICAN HISTORY possibly failure would quickly be the lot of Finally, I ask that the Congress provide

neighboring peoples striving to maintain authority which will permit the speediest | their freedom and independence. and most effective use, in terms of needed Should we fail to aid Greece and Turkey commodities, supplies, and equipment, of

in this fateful hour, the effect will be far such funds as may be authorized... . reaching to the west as well as to the east. The seeds of totalitarian regimes are nurWe must take immediate and resolute action. tured by misery and want. They spread and I therefore ask the Congress to provide grow in the, evil soil of poverty ‘and strife. authority for assistance to Greece and Tur- They reach their full growth when the hope

key in the amount of $400,000,000 for the of a people for a better life has died. We

period ending June 30, 1948. must keep that hope alive. The free peoples

In addition to funds, I ask the Congress of the world look to us for support in mainto authorize the detail of American civilian taining their freedoms.

and military personnel to Greece and Tur- If we falter in our leadership, we may : key, at the request of those countries, to endanger the peace of the world—and we assist in the tasks of reconstruction, and for shall surely endanger the welfare of this nathe purpose of supervising the use of such _ tion. financial and material assistance as may be Great responsibilities have been placed furnished. I recommend that authority also upon us by the swift movement of events. be provided for the instruction and training I am confident that the Congress will face of selected Greek and Turkish personnel. these responsibilities squarely.

575. AMERICAN AID TO GREECE AND TURKEY May 22, 1947 (80th Congress, 1st Session. Senate Doc. 111) Truman called, originally, for four hundred mil- Whereas the furnishing of such assistance

lions to implement the Truman Doctrine, see to Greece and Turkey by the United States | Doc. No. 574. As of Jan. 1, 1949, Congress had —will_ contribute to the freedom and _ inde-

appropriated 625 millions _for Greece and pendence of all members of the United NaTurkey, and as the Greek Civil War continued tions in conformity with the principles and

abate’ 4 be as ear Pia further appropria- purposes of the Charter: Now, therefore,

tons wonle pe neque’ Be it enacted that, notwithstanding the provisions of any other law, the President may from time to time when he deems it in the interest of the United States furnish as-

AN ACT sistance to Greece and Turkey, upon request of their governments, and upon terms

To provide for assistance to Greece and and conditions determined by him—

Turkey. (1) by rendering financial aid in the form

Whereas the Governments of Greece and of loans, credits, grants, or otherwise, to , Turkey have sought from the Government those countries; of the United States immediate financial and (2) by detailing to assist those countries other assistance which is necessary for the any persons in the employ of the Governmaintenance of their national integrity and ment of the United States; ...

their survival as free nations; and (3) by detailing a limited number of mem-

Whereas the national integrity and sur- bers of the military services of the United vival of these nations are of importance to States to assist those countries, in an adthe security of the United States and of all visory capacity only; ... freedom-loving peoples and depend upon (4) by providing for (A) the transfer to, the receipt at this time of assistance; and the procurement for by manufacture or

and... otherwise and the transfer to, those coun-

TRUMAN LOYALTY ORDER 707 tries of any articles, services, and informa- tion; tion, and (B) the instruction and training of (2) If the Security Council finds (with re-

personnel of those countries; .. . spect to which finding the United States Sec. 3. As a condition precedent to the | waives the exercise of any veto) or the Genreceipt of any assistance pursuant’ to this eral Assembly finds that action taken or asAct, the government requesting such as- sistance furnished by the United Nations sistance shall agree (a) to permit free access makes the continuance of such assistance un-

of United States Government officials for necessary or undesirable;

the purpose of observing whether such as- (3) If the President finds that any pursistance is utilized effectively and in accord- poses of the Act have been substantially acance with the undertakings of the recipient | complished by the action of any other intergovernment; (b) to permit representatives | governmental organizations or finds that the of the press and radio of the United States purposes of the Act are incapable of satisto observe freely and to report fully regard- factory accomplishment; and

ing the utilization of such assistance; ... (4) If the President finds that any of and (f) to give full and continuous publicity the assurances given pursuant to section 3

within such country as to the purpose, are not being carried out. source, character, scope, amounts, and prog- Sec. 6. Assistance to any country under ress of United States economic assistance this Act may, unless sooner terminated by carried on therein pursuant to this Act. the President, be terminated by concurrent

Sec. 4... . (b) There is hereby author- resolution by the two Houses of the Conized to be appropriated to the President not = gress... . to exceed $400,000,000 to carry out the pro- Sec. 8. The chief of any mission to any

visions of this Act. ... country receiving assistance under this Act Sec. 5... . The President is directed to shall be appointed by the President, by and withdraw any or all aid authorized herein with the advice and consent of the Senate, under any of the following circumstances: and shall perform such functions relating to (1) If requested by the Government of | the administration of this Act as the PresiGreece or Turkey, respectively, representing dent shall prescribe.

a majority of the people of either such na- Approved May 22, 1947. 576. TRUMAN LOYALTY ORDER March 22, 1947 (Federal Register, Vol. 12, p. 1935) See H. S. Commager, “Washington Witch-Hunt,” | €rmment.

164 Nation, 385; G. Seldes, Witch Hunt; Alan A. Investigations of persons entering the Barth, Loyalty of Free Men; H. D. Lasswell, competitive service shall be conducted by National Security and Individual Freedom; J:L. the Civil Service Commission, except in such O’Brian, National Security and Individual Free- cases as are covered by a special agreement

dom. between the commission and any given department or agency.

B. Investigations of persons other than those entering the competitive service shall be conducted by the employing department

PART I or agency. Departments and agencies with-

out investigative organizations shall utilize INVESTIGATION OF APPLICANTS the investigative facilities of the Civil Serv-

1. There shall be a loyalty investigation ice Commission. of every person entering the civilian em- 2. The investigations of persons entering ployment of any department or agency of | the employ of the Executive Branch may be the Executive Branch of the Federal Gov- conducted after any such person enters upon

708 DOCUMENTS OF AMERICAN History actual employment therein, but in any such _ ties of the Civil Service Commission.

case the appointment of such person shall 2. The head of each department and be conditioned upon a favorable determina- agency shall appoint one or more loyalty

tion with respect to his loyalty... . boards, each composed of not less than three 3. An investigation shall be made of all representatives of the department or agency applicants at all available pertinent sources concerned, for the purpose of hearing loyalty

of information and shall include reference cases arising within such department or

to: agency and making recommendations with A, Federal Bureau of Investigation files. respect to the removal of any officer or em-

B. Civil Service Commission files. ploye of such department or agency on C. Military and Naval Intelligence files. grounds relating to loyalty, and he shall pre- | D. The files of any other appropriate gov- scribe regulations for the conduct of the ernment investigative or intelligence agency. proceedings before such boards.

E. House Committee on un-American Ac- A. An officer or employe who is charged

tivities files. with being disloyal shall have a right to an F. Local law-enforcement files at the place _adinfnistrative hearing before a loyalty board

of residence and employment of the appli- in the employing department or agency. He cant, including municipal, county and state may appear before such board personally,

law-enforcement files. accompanied by counsel or representative of | G. Schools and colleges attended by appli- his own choosing, and present evidence on

cant. his own behalf, through witnesses or by affiH. Former employers of applicant. davit. I. References given by applicant. B. The officer or employe shall be served |

J. Any other appropriate source. with a written notice of such hearing in suf-

4. Whenever derogatory information with ficient time, and shall be informed therein respect to loyalty of an applicant is revealed, of the nature of the charges against him in a full field investigation shall be con- sufficient detail, so that he will be enabled ducted. A full field investigation shall also to prepare his defense. The charges shall be be conducted of those applicants, or of ap- stated as specifically and completely as, in plicants for particular positions, as may be the discretion of the employing department designated by the head of the employing or agency, security considerations permit, department or agency, such designations to and the officer or employe shall be informed be based on the determination by any such in the notice (1) of his right to reply to such

head of the best interests of national se- charges in writing within a specified reason- |

curity. able period of time, (2) of his right to an administrative hearing on such charges be-

PART II fore a loyalty board, and (3) of his right to appear before such board personally, to INVESTIGATION OF EMPLOYES be accompanied by counsel or representative

1. The head of each department and _ of his own choosing, and to present evidence agency in the Executive Branch of the Gov- on his behalf, through witness or by affi- |

ernment shall be personally responsible for davit.

an effective program to assure that disloyal 3. A recommendation of removal by a civilian officers or employes are not retained loyalty board shall be subject to appeal by in employment in his department or agency. the officer or employe affected, prior to his A. He shall be responsible for prescribing removal, to the head of the employing de-

and supervising the loyalty determination partment or agency or to such person or procedures of his department or agency, in persons as may be designated by such head, accordance with the provisions of this order, under such regulations as may be prescribed which shall be considered as providing mini- by him, and the decision of the department

mum requirements. or agency concerned shall be subject to apB. The head of a department or agency peal to the Civil Service Commission’s Loy- |

which does not have an investigative organ- alty Review Board, hereinafter provided for,

ization shall utilize the investigative facili- for an advisory recommendation. :

TRUMAN LOYALTY ORDER 709 4. The rights of hearing, notice thereof, 2. There shall also be established and and appeal therefrom shall be accorded to maintained in the Civil Service Commission every officer or employe prior to his removal a central master index covering all persons on grounds of disloyalty, irrespective of | on whom loyalty investigations have been tenure, or of manner, method, or nature of made by any department or agency since appointment, but the head of the employing Sept. 1, 1939. Such master index shall condepartment or agency may suspend any off- tain the name of each person investigated, cer or employe at any time pending a de- adequate identifying information concerning

termination with respect to loyalty. each such person, and a reference to each 5, The loyalty boards of the various de- department and agency which has conducted partments and agencies shall furnish to the _a loyalty investigation concerning the person Loyalty Review Board, hereinafter provided involved. ...

for, such reports as may be requested con- B. The reports and other investigative

cerning the operation of the loyalty program material and information developed by the

in any such department or agency. investigating department or agency shall be retained by such department or agency in each case.

PART III 3. The Loyalty Review Board shall cur-

rently be furnished by the Department of RESPONSIBILITIES OF CIVIL. Justice the name of each foreign or domestic organization, association, movement, group 1. There shall be established in the Civil or combination of persons which the AttorService Commission a Loyalty Review Board ney General, after appropriate investigation of not less than three impartial persons, the | and determination, designates as totalitarian, members of which shall be officers or em- Fascist, Communist or subversive, or as hav-

SERVICE COMMISSION ae ae

ployes of the commission. ing adopted a policy of advocating or ap-

A. The board shall have authority to re- | proving the commission of acts of force or view cases involving persons recommended violence to deny others their rights under for dismissal on grounds relating to loyalty the Constitution of the United States, or as by the loyalty board of any department or seeking to alter the form of government of agency and to make advisory recommenda- the United States by unconstitutional means. tions thereon to the head of the employing A. The Loyalty Review Board shall disdepartment or agency. Such cases may be — seminate such information to all departreferred to the board either by the employ- ments and agencies. ing department or agency, or by the officer or employe concerned.

B. The board shall make rules and regu- PART IV

lations, not inconsistent with the provisions of this order, deemed necessary to imple- SECURITY MEASURES IN INVESTIGATIONS

ment statutes and executive orders relating 1. At the request of the head of any de-

to employe loyalty. partment or agency of the Executive Branch C. The Loyalty Review Board shall also: an investigative agency shall make available

(1) Advise all departments and agencies to such head, personally, all investigative on all problems relating to employe loyalty. material and information collected by the (2) Disseminate information pertinent to investigative agency concerning any employe

employe loyalty programs. . or prospective employe of the requesting de. (3) Coordinate the employe loyalty poli- partment or agency, or shall make such macies and procedures of the several depart- terial and information available to any ofh-

ments and agencies. cer or officers designated by such head and (4) Make reports and submit recom- approved by the investigative agency.

mendations to the Civil Service Commission 2. Notwithstanding the foregoing requirefor transmission to the President from time ment, however, the investigative agency may to time as may be necessary to the mainte- _ refuse to disclose the names of confidential

nance of the employe loyalty program. informants, provided it furnishes sufficient

710 DOCUMENTS OF AMERICAN HiIsToRY information about such informants on the cant or employe which may be considered basis of which the requesting department or in connection with the determination of disagency can make an adequate evaluation of loyalty may include one or more of the folthe information furnished by them, and pro- _ lowing:

vided it advises the requesting department A. Sabotage, espionage, or attempts or or agency in writing that it is essential to preparations therefor, knowingly associatthe protection of the informants or to the ing with spies or saboteurs; investigation of other cases that the identity B. Treason or sedition or advocacy thereof the informants not be revealed. Investi- of; gative agencies shall not use this discretion C. Advocacy of revolution of force or to decline to reveal sources of information violence to alter the constitutional form of

where such action is not essential. Government of the United States;

3. Each department and agency of the D. Intentional, unauthorized disclosure to Executive Branch should develop and main- 2"Y person, under circumstances which may tain, for the collection and analysis of infor- indicate disloyalty to the United States, of mation relating to the loyalty of its employes documents or information of a confidential

' . or non-public character obtained. - free access to its sector of Berlin. The right

me ee blocka, ‘ea transport which of the United States to its position in Berlin ‘a Berlin occupied by th ° United States thus stems from precisely the same source | United Kingdom and. France The United asossible the righttoofassert the Soviet Union.and It isdimthe latter h

States Government regards these measures former r and deny the

of blockade as a clear violation of existing It clearly results from these undertakings | Tons ho temas the administration of that Berlin is not a part of the Soviet zone, The yt € the United St ee aa, ‘oint but is an international zone of occupation. occupying power in Berlin derive ‘from the vommitments entered into i" good faith by _ the zone commanders and subsequently contotal defeat and unconditional surrender of ¢ oq by the Allied Control Authority oe

qemany. ane intern atione es the well as practices sanctioned by usage, guar-

CG r ; , the United Stat 0 ted antee the United States together with other

; ; ; in . The fact in.

Rinedon France od ‘he Sovtet Un on de. powers, free access to Berlin for the purpose Pate the cones in Germany and the sectors of fulfilling its responsibilities as an occuin Berlin which are occupied by these pow- mA aning is dl ear A ay ” her Pian. wate ers. They established the quadripartite con- would offend all the rules of co it y and trol of Berlin on a basis of friendly coopera- reason

tion which the Government of the United In order that there should be no misunStates earnestly desires to continue to pur- derstanding whatsoever on this point, the

sue. spied the tight of United States Government categorically asThese aavanen This a“ A 1 Ot serts that it is in occupation of its sector free ee, eC Berlin. mae t i ‘le in Berlin with free access thereto as a been confirme by usage. It was an Y matter of established right deriving from the

Fe ee, a Tecan feat and surender of Gemany and con ees poe rme y formal agreements among the

Sta thn gag gems tetorsence, Tis ples nde whe agreed ne witharawal United principal Allies.population It further declares that it ved icf, in € zona nn sould. be will not be induced by threats, pressures or ed satiate, ements Con Nether atin to abandon thee gis, Ti

~ hoped that the Soviet Government enter-

sr neh emt sce«es 07effresponsibility nie no dubswhich witsonyer on his int this Government Premier Stalin replied on June 16 suggesting bears fo the ohysical well-being and the

pit of Berlin is outstandingly humanitarian in

the plan arovosed Wy the eee a tersion mn safety of the German population in its sector

measur of thousands of women and children, whose the plan. Correspondence in a similar sens€ health and safety are dependent on the contook place between P remier Stalin and Mr. tinued use of adequate facilities for moving Churchill. In accordance with this under- food, medical supplies and other items instanding, the United States, whose armies dispensable to the maintenance of human

UNIVERSAL DECLARATION OF HUMAN RIGHTS 731 life in the western sectors of Berlin. The fore obliged to insist that in accordance most elemental of these human rights which with existing agreements the arrangements both our Governments are solemnly pledged for the movement of freight and passenger to protect are thus placed in jeopardy by traffic between the western zones and Berthese restrictions. It is intolerable that any lin be fully restored. There can be no ques-

one of the occupying authorities should at- tion of delay in the restoration of these tempt to impose a blockade upon the people essential services, since the needs of the

of Berlin. civilian population in the Berlin area are The United States Government is there- imperative... .

587. UNIVERSAL DECLARATION OF HUMAN RIGHTS December 10, 1948

(U. N. General Assembly, 2d. Session, Doc. A/811) This Universal Declaration of Human Rights, on the basis of the political, jurisdictional, or

drafted by a U. N. Commission on Human jnternational status of the country or terriRights headed by Eleanor Rocsevelt, was agreed tory to which a person belongs, whether it upon by the 1948 General Assembly, with only be an independent, trust, or non-self-govthe Russian bloc opposed. As no provision was erning territory or under any limitation of made Or usaSenforcement, tnemora Declaration nas sovereignty. serve arge a Statement of rincipres.

See Z. Chafee, Documents on Fundamental Art. 3. Everyone has the right to life, libHuman Rights; A. N. Holcombe, Human Rights erty, and security of person.

in the Modern World; R. N. Baldwin, Human Art. 4. No one shall be held in slavery or Rights, World Declaration and American Prac- servitude; slavery and the slave trade shall

tice. be prohibited in all their forms. Art. 5. No one shall be subjected to tor-

_ THE GENERAL ASSEMBLY ture or to cruel, inhuman, or degrading treatProclaims this Universal Declaration of | ™ent or punishment. Human Rights as a common standard of _Art. 6. Everyone has the right to recogachievement for all peoples and all nations, ition everywhere as a person before the to the end that every individual and every _/@W.

organ of society, keeping this declaration Art. 7. All are equal before the law and constantly in mind, shall strive by teaching Fe entitled without any discrimination to and education to promote respect fo: these equal protection of the law. All are entitled rights and freedoms and by progressive ‘© equal protection against any discriminameasures, national and international, to se- 108 in violation of this Declaration and cure their universal and effective recogni- 282mst any incitement to such discrimina-

tion and observance, both among the peoples ton. ;

of Member States themselves and among Art. 8. Everyone has the right to an efthe peoples of territories under their juris- fective remedy by the competent national

diction. tribunals for acts violating the fundamental Art. 1, All human beings are born free and ‘tights granted him by the Constitution or equal in dignity and rights. They are en- _ by law.

dowed with reason and conscience and Art. 9, No one shall be subjected to arshould act towards one another in a spirit of — bitrary arrest, detention, or exile.

brotherhood. Art. 10. Everyone is entitled in full equalArt. 2, Everyone is entitled to all the ity to a fair and public hearing by an

rights and freedoms set forth in this Decla- independent and impartial tribunal, in the ration, without distinction of any kind, such — determination of his rights and obligations as race, colour, sex, language, religion, po- —_ and of any criminal charge against him.

litical or other opinion, national or social Art. 11. 1. Everyone charged with a penal origin, property, birth, or other status. offence has the right to be presumed innoFurthermore, no distinction shall be made cent until proved guilty according to law

732 DOCUMENTS OF AMERICAN HISTORY in a public trial at which he has had all the Art. 18. Everyone has the right to freeguarantees necessary for his defence. dom of thought, conscience, and religion; 2. No one shall be held guilty of any this right includes freedom to change his repenal offence on account of any act or omis- _ ligion or belief, and freedom either alone or sion which did not constitute a penal offence, in community with others and in public or

under national or international law, at the private, to manifest his religion or belief in time when it was committed. Nor shall a teaching, practice, worship, and observance.

heavier penalty be imposed than the one Art. 19. Everyone has the right to freethat was applicable at the time the penal dom of opinion and expression, this right

offence was committed. includes freedom to hold opinions without

Art. 12. No one shall be subjected to ar- interference and to seek, receive, and impart bitrary interference with his privacy, family, information and ideas through any media home, or correspondence, nor to attacks and regardless of frontiers. upon his honour and reputation. Everyone Art. 20. 1. Everyone has the right to freehas the right to the protection of the law dom of peaceful assembly and association.

: against such interference or attacks. 2. No one may be compelled to belong to

Art. 13. 1. Everyone has the right to free- an association. dom of movement and residence within the Art. 21. 1. Everyone has the right to take

borders of each State. part in the Government of his country, di-

2. Everyone has the right to leave any rectly or through freely chosen representa-

country, including his own, and to return to _ tives.

his country. 2. Everyone has the right of equal access Art. 14. 1. Everyone has the right to seek to public service in his country. and to enjoy in other countries asylum from 3. The will of the people shall be the basis

persecution. of the authority of Government; this will 2. This right may not be invoked in the shall be expressed in periodic and genuine case of prosecutions genuinely arising from elections which shall be by universal and non-political crimes or from acts contrary to equal suffrage and shall be held by secret the purposes and principles of the United vote or by equivalent free voting proced-

Nations. ures.

Art 15. 1. Everyone has the right to a na- Art. 22, Everyone as a member of society,

tionality. has the right to social security and is en2. No one shall be arbitrarily deprived of _ titled to the realisation, through national efhis nationality nor denied the right to change fort and international co-operation and in

his nationality. accordance with the organisation and re-

Art. 16. 1. Men and women of full age, sources of each State, of the economic, sowithout any limitation due to race, nation- cial, and cultural rights indispensable for ality, or religion, have the right to marry his dignity and the free development of his and to found a family. They are entitled to personality. equal rights as to marriage, during marriage, Art. 23. 1. Everyone has the right to work,

and at its disolution. to free choice of employment, to just and 2. Marriage shall be entered into only favourable conditions of work, and to prowith the free and full consent of the intend- tection aaginst unemployment.

ing spouses. 2. Everyone, without any discrimination,

3. The family is the natural and funda- has the right to equal pay for equal work. mental group unit of society and is entitled 3. Everyone who works has the right to to protection by society and the State. just and favourable remuneration, insuring

, for himself and his family an existence

ae at Every aL has the night to vith worthy of human dignity, and supplemented, he i” y alone as well as In association wit if necessary by other means of social pro-

os ; tection.

his property shall be arbitrarily deprived of 4. Everyone has the right to form and to join trade unions for the protection of his

TRUMAN’S INAUGURAL ADDRESS 733

interests. 3. Parents have a prior right to choose Art. 24. Everyone has the right to rest and the kind of education that shall be given to leisure, including reasonable limitation of their children. working hours and periodic holidays with Art. 27. 1. Everyone has the right freely

pay. to participate in the cultural life of the comArt. 25. 1. Everyone has the right to a munity, to enjoy the arts, and to share in standard of living adequate for the health scientific advancement and its benefits. and wellbeing of himself and of his family, 2. Everyone has the right to the protecincluding food, clothing, housing, and medi- tion of the moral and material interests cal care and necessary social services, and resulting from any scientific, literary, or the right to security in the event of unem- artistic production of which he is the author. ployment, sickness disability, widowhood, Art. 28. Everyone is entitled to a social old age, or other lack of livelihood in cir- and international order in which the rights

cumstances beyond his control. and freedoms set forth in this declaration 2. Motherhood and childhood are entitled can be fully realised.

to special care and assistance. All children, Art. 29. 1. Everyone has duties to the whether born in or out of wedlock, shall en- community in which alone the free and full

joy the same social protection. development of his personality is possible. Art. 26, 1. Everyone has the right to edu- 2. In the exercise of his rights and freecation. Education shall be free, at least in doms, everyone shall be subject only to the elementary and fundamental stages. Ele- such limitations as are determined by law mentary education shall be compulsory. solely for the purpose of securing due recTechnical and professional education shall ognition and respect for the rights and free-

be made generally available, and higher ed- doms of others and of meeting the just ucation shall be equally accessible to all on requirements of morality, public order, and

the basis of merit. the general welfare in a democratic society. 2. Education shall be directed to the full 3. These rights and freedoms may in no development of the human personality and case be exercised contrary to the purposes to the strengthening of respect for human and principles of the United Nations. rights and fundamental freedoms, it shall Art. 30. Nothing in this Declaration may

promote understanding, tolerance, and be interpreted as implying for any State, friendship among all nations, racial or reli- group, or person any right to engage in any gious groups, and shall further the activities activity or to perform any act aimed at the of the United Nations for the maintenance destruction of any of the rights and free-

of peace. doms set forth herein. 588. TRUMAN’S INAUGURAL ADDRESS January 19, 1949 (Congresstonal Record, Jan. 20, 1949)

From his predecessor Truman inherited the New _ entific aid to underdeveloped peoples and areas. Deal. He quietly got rid of most of the old New See H. Truman, Memoirs, Vol. UI. Dealers who had rallied around President Roosevelt; it was an interesting question whether he would abandon the New Deal as well. The campaign of 1948 revealed that, whatever Truman’s

attitude towards Rooscevelt’s associates, he was

determined to push vigorously the New Deal ... In the coming years, our program program, The most interesting part of his first in- for peace and freedom will emphasize four augural address was the fourth point— the “bold Major courses of action. new program’ for extending industrial and sci- First, we will continue to give unfaltering

734 DOCUMENTS OF AMERICAN HISTORY support to the United Nations and related Fourth, we must embark on a bold new agencies, and we will continue to search program for making the benefits of our scifor ways to strengthen their authority and entific advances and industrial progress increase their effectiveness. We believe that available for the improvement and growth the United Nations will be strengthened by of under-developed areas.

the new nations which are being formed in More than half the people of the world lands now advancing toward self-government are living in conditions approaching misery.

under democratic principles. Their food is inadequate. They are victims Second, we will continue our programs for of disease. Their economic life is primitive

world economic recovery. and stagnant. Their poverty is a handicap This means, first of all, that we must keep and a threat both to them and to more prosour full weight behind the European Recov- _ perous areas.

ery Program. We are confident of the For the first time in history, humanity success of this major venture in world re- possesses the knowledge and the skill to recovery. We believe that our partners in this lieve the suffering of these people. effort will achieve the status of self-support- The United States is pre-eminent among

ing nations once again. nations in the development of industrial and In addition, we must carry out our plans scientific techniques. The material resources for reducing the barriers to world trade and = which we can afford to use for the assistance

increasing its volume. Economic recovery of other peoples are limited. But our imand peace itself depend on increased world ponderable resources in technical knowledge

trade. are constantly growing and are inexhaustible. Third, we will strengthen freedom-loving I believe that we should make available nations against the dangers of aggression. to peace-loving peoples the benefits of our We are now working out with a number store of technical knowledge in order to of countries a joint agreement designed to help them realize their aspirations for a betstrengthen the security of the North Atlantic ter life. And, in cooperation with other naarea. Such an agreement would take the tions, we should foster capi. ' investment form of a collective defense arrangement in areas needing development.

within the terms of the United Nations Our aim should be to help the free peo-

Charter. ples of the world, through their own efforts, We have already established such a de- tg produce more food, more clothing, more fense pact for the Western Hemisphere by materials for housing, and more mechanical

the treaty of Rio de Janeiro. power to lighten their burdens.

The primary purpose of these agreements We invite other countries to pool their is to provide unmistakable proof of the technological resources in this undertaking. joint determination of the free countries to heir contributions will be warmly welresist armed attack from any quarter. Each (omed. This should be a cooperative entercountry participating in these arrangements prise in which all nations work together must contribute all it can to the common through the United Nations and its special-

defense. ized agencies wherever practicable. It must If we can make it sufficiently clear, in be a world wide effort for the achievement advance, that any armed attack affecting of peace, plenty, and freedom. our national security would be met with With the cooperation of business, private overwhelming force, the armed attack might ¢cgpital, agriculture, and Jabor in this coun-

never occur. try, this program can greatly increase the I hope soon to send to the Senate a treaty industrial activity in other nations and can respecting the North Atlantic security plan. ;ajse substantially their standards of living. In addition, we will provide military ad- Such new economic developments must

vice and equipment to free nations which he devised and controlled to benefit the will cooperate with us in the maintenance peoples of the areas in which they are es- |

of peace and security. tablished. Guarantees to the investor must

THe NortH ATLANTIC TREATY 735 be balanced by guarantees in the interest We are aided by all who wish to live in of the people whose resources and whose freedom from fear—even by those who live

labor go into these developments. today in fear under their own governments. The old imperialism—exploitation for for- We are aided by all who want relief from eign profit—has no place in our plans. What the lies of propaganda—who desire truth we envisage is a program of development and sincerity. based on the concepts of democratic fair- We are aided by all who desire self-gov-

dealing. ernment and a voice in deciding their own

All countries, including our own, will affairs. greatly benefit from a constructive program We are aided by all who long for ecofor the better use of the world’s human and nomic security—for the security and abunnatural resources. Experience shows that our dance that men in free societies can enjoy. commerce with other countries expands as We are aided by all who desire freedom they progress industrially and economically. of speech, freedom of religion, and freedom Greater production is the key to pros- to live their own lives for useful ends. perity and peace. And the key to greater Our allies are the millions who hunger and production is a wider and more vigorous ap-_ thirst after righteousness.

plication of modern scientific and technical In due time, as our stability becomes

knowledge. manifest, as more and more nations come Only by helping the least fortunate of its to know the benefits of democracy and to members to help themselves can the human participate in growing abundance, I believe

family achieve the decent, satisfying life that those countries which now oppose us

that is the right of all people. will abandon their delusions and join with Democracy alone can supply the vitaliz- the free nations of the world in a just seting force to stir the peoples of the world into tlement of international differences.

triumphant action, not only against their Events have brought our American dehuman oppressors, but also against their mocracy to new influence and new responsiancient enemies—hunger, misery, and de- bilities. They will test our courage, our de-

spair. votion to duty, and our concept of liberty. On the basis of these four major courses But I say to all men, what we have of action we hope to help create the condi- achieved in liberty, we will surpass in greater tions that will lead eventually to personal liberty.

freedom and happiness for all mankind. Steadfast in our faith in the Almighty, If we are to be successful in carrying out we will advance toward a world where man’s these policies, it is clear that we must have freedom is secure.

continued prosperity in this country and To that end we will devote our strength,

we must keep ourselves strong. our resources, and our firmness of resolve. Slowly but surely we are weaving a world With God’s help, the future of mankind will fabric of international security and growing be assured in a world of justice, harmony,

prosperity. and peace.

589. THE NORTH ATLANTIC TREATY Signed, 4 April 1949 (81st Congress, 1st Sesston. Executive Document L) The North Atlantic Pact, as it was popularly ditional American foreign policy, it was clearly known, was designed to provide collective se- consistent with the Truman Doctrine, the Maranny to the democratic nations of the Atlantic shall Plan, and the Vandenberg Resolution of ommunity against possible overt action by 19 May 1948, Other signatory countries were Russia or her satellite states. It was patterned Belgium, Canada, Denmark, France, Iceland, one ongh tneit Treaty Rio dedeparture Janeiro of 1947. Luxembourg, Netherlands, markedofa sharp from tra-Italy, _tugal, and the United Kingdom.Norway, Por-

736 DOCUMENTS OF AMERICAN HIsTory , The Parties to this Treaty reaffirm their rope or North America shall be considered 7

faith in the purposes and principles of the an attack against them all; and consequently | Charter of the United Nations and their de- they agree that, if such an armed attack sire to live in peace with all peoples and all occurs, each of them, in exercise of the right .

governments. of individual or collective self-defense recThey are determined to safeguard the free- ognized by Article 51 of the Charter of the

dom, common heritage and civilization of United Nations, will assist the Party or Par- : their peoples, founded on the principles of ties so attacked by taking forthwith, indi- | democracy, individual liberty and the rule vidually and in concert with the other

of law. Parties, such action as it deems necessary, — They seek to promote stability and well- including the use of armed force, to restore :

being in the North Atlantic area. and maintain the security of the North At- | They are resolved to unite their efforts for lantic area.

collective defense and for the preservation Any such armed attack and all measures :

of peace and security. taken as a result thereof shall immediately : They therefore agree to this North At- be reported to the Security Council. Such ,

lantic Treaty: measures shall be terminated when the Se- | Art. 1. The Parties undertake, as set forth curity Council has taken the measures : in the Charter of the United Nations, to necessary to restore and maintain interna- :

settle any international disputes in which tional peace and security. | they may be involved by peaceful means in Art. 6. For the purpose of Article 5 an such a manner that international peace and armed attack on one or more of the Parties : security, and justice, are not endangered, is deemed to include an armed attack on the

and to refrain in their international relations territory of any of the Parties in Europe or from the threat or use of force in any man- North America, on the Algerian departments

ner inconsistent with the purposes of the of France, on the occupation forces of any

United Nations. Party in Europe, on the islands under the Art. 2. The Parties will contribute toward jurisdiction of any Party in the North Atthe further development of peaceful and lantic area north of the Tropic of Cancer or friendly international relations by strength- on the vessels or aircraft in this area of any ening their free institutions, by bringing of the Parties. about a better understanding of the princi- Art. 7. This Treaty does not affect, and ples upon which these institutions are shall not be interpreted as affecting, in any founded, and by promoting conditions of way the rights and obligations under the stability and well-being. They will seek to Charter of the Parties which are members eliminate conflict in their international eco- of the United Nations, or the primary re-

nomic policies and will encourage economic sponsibility of the Security Council for the collaboration between any or all of them. maintenance of international peace and seArt. 3. In order more effectively to achieve curity.

the objectives of this Treaty, the Parties, Art. 8. Each Party declares that none of separately and jointly, by means of con- the international engagements now in force

tinuous and effective self-help and mutual © ert 596 ,

aid, will maintain and develop their in- between it and any other ° ; the Parties or dividual and collective capacity to resist @2Y third state is in conflict with the pro-

armed attack. visions of this Treaty, and undertakes not to Art. 4. The Parties will consult together enter into any international engagement in

whenever, in the opinion of any of them, conflict with this Treaty.

the territorial integrity, political independ- Art. 9. The Parties hereby establish a

ence or security of any of the Parties is council, on which each of them shall be rep-

threatened. resented, to consider matters concerning the Art. 5. The Parties agree that an armed implementation of this Treaty. The council attack against one or more of them in Eu-_ shall be so organized as to be able to meet

RECOGNITION OF ISRAEL 737 promptly at any time. The council shall set the United States, have been deposited and up such subsidiary bodies as may be neces- shall come into effect with respect to other sary; in particular it shall establish immedi- states on the date of the deposit of their

ately a defense committee which shall rec- ratifications. ommend measures for the implementation Art. 12. After the Treaty has been in force of Articles 3 and 5. for ten years, or at any time thereafter, the Art. 10. The Parties may, by unanimous Parties shall, if any of them so requests, agreernent, invite any other European state consult together for the purpose of reviewin a position to further the principles of this ing the Treaty, having regard for the facTreaty and to contribute to the security of tors then affecting peace and security in the the North Atlantic area to accede to this North Atlantic area, including the developTreaty. Any state so invited may become a ment of universal as well as regional arparty to the Treaty by depositing its instru- rangements under the Charter of the United ment of accession with the Government of Nations for the maintenance of international

the United States of America. The Govern- peace and security.

ment of the United States of America will Art. 13. After the Treaty has been in inform each of the Parties of the deposit of force for twenty years, any Party may cease

each such instrument of accession. to be a party one year after its notice of

Art. 11, ... The Treaty shall enter into denunciation has been given to the Governforce between the states which have ratified ment of the United States of America, which it as soon as the ratifications of the majority will inform the Governments of the other of the signatories, including the ratifications P arties of the deposit of each notice of deof Belgium, Canada, France, Luxembourg, nmunciation. the Netherlands, the United Kingdom and

590. RECOGNITION OF ISRAEL 1948-49

(White House Press Releases, May 14, 1948, and January 31, 1949) In 1947, the General Assembly of the United tine, and recognition has been requested by Nations adopted a plan for the partition of the provisional government thereof. Palestine into independent Jewish and Arab The United States recognizes the provistates. On May 14, 1948, the Jewish community gina] government as the de facto authority of Palestine proclaimed the creation of the inde- of the new State of Israel. pendent state of Israel. On the same day, President Truman announced that the United States accorded de facto recognition to the government of Israel. De jure recognition was granted on January 31, 1949. The quick response of the United States to the Israeli plea for recognition established close relations between the two gov- STATEMENT BY PRESIDENT TRUMAN,

ernments. These relations were further ce- JANUARY 31, 1949

I.srael’s entedsuccessful when theapplication United States suPP orted for admission to On October 24, 1948, the President stated the United Nations in 1949. See J. C. Hure- that when a permanent government was witz, The Struggle for Palestine; J. C. Hure- lected in Israel, it would promptly be given witz, Diplomacy in the Near and Middle East; 4€ jure recognition. Elections for such a Abba Eban, The Voice of Israel; E. Rackman, government were held on January 25th. The Israel’s Emerging Constitution, 1948-1951. votes have now been counted, and this Government has been officially informed of the STATEMENT. BY PRESIDENT TRUMAN, results. The United States Government is

Av 14, 1948 therefore pleased to extend de jure recogni-

This Government has been informed that tion to the Government of Israel as of this a Jewish state has been proclaimed in Pales- date.

738 DOCUMENTS OF AMERICAN History 591. TRUMAN’S POINT FOUR PROGRAM June 24, 1949 (81st Congress, Ist Session, House Doc. No. 240) Following a proposal made in his inaugural their lives and their outlook. They are eager address, President Truman sent a special mes- to play a greater part in the community of sage to Congress urging a program of technical nations. assistance to underdeveloped areas. The Presi- All these areas have a common problem. dent recommended a modest initial appropria- They must create a firm economic base for needs required. Congress enacted the President’s the democratic aspirations of their citizens. proposal on June 5, 1950, and thus took an- Without such an economic base, they will be other important step in the assumption of in- Unable to meet the expectations which the ternational responsibilities. See Doc. No. 580; modern world has aroused in their peoples. W. A. Brown, American Foreign Assistance; If they are frustrated and disappointed, R. T. Mack, Raising the World’s Standard of they may turn to false doctrines which hold

tion of $45 million to be expanded as future y ae . le

Living; M. Curti and K. Beir, Prelude to that the way of progress lies through tyrPoint Four; J. B. Bingham, Shirt-Sleeve Dip- anny... .

lomacy. For these various reasons, assistance in the development of the economically underdeveloped areas has become one of the major

elements of our foreign policy. In my in-

To the Congress of the United States: augural address, I outlined a program to In order to enable the United States, in help the peoples of these areas to attain cooperation with other countries, to assist greater production as a way to prosperity the peoples of economically underdeveloped and peace.

areas to raise their standards of living, I The major effort in such a program must recommended the enactment of legislation be local in character; it must be made by to authorize an expanded program of tech- the people of the underdeveloped areas nical assistance for such areas, and an ex- themselves. It is essential, however, to the perimental program for encouraging the out- success of their effort that there be help flow of private investment beneficial to their from abroad. In some. cases, the peoples of economic development. These measures are these areas will be unable to begin their part

the essential first steps in an undertaking of this great enterprise without initial aid which will call upon private enterprise and from other countries. voluntary organizations in the United States, The aid that is needed falls roughly into as well as the government, to take part in two categories. The first is the technical, a constantly growing effort to improve eco- _ scientific, and managerial knowledge necesnomic conditions in the less developed re- sary to economic development. This cate-

gions of the world. gory includes not only medical and educaThe grinding poverty and the lack of tional knowledge, and assistance and advice

economic opportunity for many millions of in such basic fields as sanitation, communipeople in the economically underdeveloped cations, road building, and governmental servparts of Africa, the Near and Far East, and ices, but also, and perhaps most important, certain regions of Central and South Amer- assistance in the survey of resources and in ica, constitute one of the greatest challenges planning for long-range economic developof the world today. In spite of their age-old ment. economic and social handicaps, the peoples The second category is production goods in these areas have, in recent decades, been —machinery and equipment—and financial stirred and awakened. The spread of indus- assistance in the creation of productive entrial civilization, the growing understanding terprises. The underdeveloped areas need of modern concepts of government, and the’ capital for port and harbor development,

impact of two World Wars have changed roads and communications, irrigation and

TRUMAN ANNOUNCES HypDROGEN BoMB PROGRAM 739 drainage projects, as well as for public uti- of many areas has been increased as the lities and the whole range of extractive, proc- result of the advice of United States agriessing, and manufacturing industries. Much cultural experts in the control of animal

of the capital required can be provided by diseases and the improvement of crops. these areas themselves, in spite of their low These are only examples of the wide range

standards of living. But much must come of benefits resulting from the careful ap-

from abroad. plication of modern techniques to local prob-

The two categories of aid are closely re- lems. The benefits which a comprehensive lated. Technical assistance is necessary to program of expert assistance will make poslay the ground-work for productive invest- sible can only be revealed by studies and ment. Investment, in turn, brings with it surveys undertaken as a part of the program technical assistance. In general, however, _ itself. technical surveys of resources and of the To inaugurate the program, I recommend possibilities of economic development must a first year appropriation of not to exceed precede substantial capital investment. Fur- 45 million dollars. This includes 10 million thermore, in many of the areas concerned, dollars already requested in the 1950 Budget technical assistance in improving sanitation, for activities of this character. The sum communications, or education is required to recommended will cover both our participacreate conditions in which capital investment tion in the programs of the international

can be fruitful. ... agencies and the assistance to be provided It has already been shown that experts in directly by the United States.

these fields can bring about tremendous im- In every case, whether the operation is provements. For example, the health of the conducted through the United Nations, the people of many foreign communities has other international agencies, or directly by been greatly improved by the work of United the United States, the country receiving the States sanitary engineers in setting up mod- benefit of the aid will be required to bear ern water supply systems. The food supply a substantial portion of the expense.

592. TRUMAN ANNOUNCES HYDROGEN BOMB PROGRAM January 31, 1950

(Department of State Bulletin, Vol. XXII, p. 229) , The first Russian atomic explosion of 1949 in- itself against any possible aggressor. Actensified the race to develop new and more cordingly, I have directed the Atomic Energy

ce "Praside Oo astruction. On January Commission to continue its work on all y ave) F resident “ruman the informs of to atomic weapons, including auguration of anannounced all-out effort develop a . the so-

hydrogen bomb substantially more powerful called hydrogen or super-bomb. Like all other than existing atomic weapons. This program WOrk in the field of atomic weapons, it is achieved its initial objective in November, 1952, being and will be carried forward on a basis when the first hydrogen bomb was detonated. Consistent with the over-all objectives of our See W. L. Laurence, The Hell Bomb; H. D. program for peace and security.

Smyth, Atomic Energy for Military Purposes: This we shall continue to do until a A. H. Compton, Atomic Quest; J. W. Camp- satisfactory plan for international control of

oe ihe Atomic Story; G. Dean, Report on atomic energy is achieved. We shall also continue to examine all those factors that affect our program for peace and this country’s security.

The activities necessary to Carry out our program of technical aid will be diverse in It is part of my responsibility as Com- character and will have to be performed by mander-in-Chief of the armed forces to see a number of different government agencies

to it that our country is able to defend and private instrumentalities. It will be nec-

740 DOCUMENTS OF AMERICAN HISTORY essary to utilize not only the resources of unless we aid the newly awakened spirit in international agencies and the United States these peoples to find the course of fruitful Government, but also the facilities and the development, they may fall under the conexperience of the private business and non-_ trol of those whose philosophy is hostile to profit organizations that have long been human freedom, thereby prolonging the un-

active in this work. ... settled state of the world and postponing In the economically underdeveloped areas the achievement of permanent peace.

of the world today there are new creative Before the peoples of these areas we hold energies. We look forward to the time when out the promise of a better future through these countries will be stronger and more’ the democratic way of life. It is vital that independent than they are now, and yet we move quickly to bring the meaning of more closely bound to us and to other na- that promise home to them in their daily tions by ties of friendship and commerce, _ lives.

and by kindred ideals. On the other hand, Harry S. TRUMAN 593. TRUMAN’S STATEMENT ON THE KOREAN WAR June 27, 1950 (Department of State Press Release)

At the Cairo and Potsdam conferences, the preserve internal security, were attacked by Allied Powers promised the Korean people in- invading forces from North Korea. The Sedependence and self-government. After the de- curity Council of the United Nations called feat of Japan, the United States established a non the invading troops to cease hostilities military government in Korea south of the nq to withdraw to the 38th parallel. This 38th parallel and the U.S.S.R. established a similar government north of the parallel. A they have not done, but on the contrary joint American-Soviet commission to work out have pressed the attack. The Security Counthe details of Korean unification failed to agree. Ci! called upon all members of the United

Intervention by the United Nations was of no Nations to render every assistance to the avail. Finally in 1948, the U. S. and the U.N. United Nations in the execution of this resosponsored elections in South Korea, and shortly lution. In these circumstances I have ordered

thereafter a government of the Republic of | United States air and sea forces to give the Korea was established to rule South Korea. In Korean Government troops cover and sup1949, the United States granted de jure recogni- port.

tion and withdrew its troops. The Soviets The attack upon Korea makes it plain responded creating North Korean govb d4all that C Nas ;h ernment. Onby June 25 1950a the North Koreans eyons ou doubt a Oramunism launched a full-scale attack on the South. Two passed beyond the use of subversion to condays later the U. N. Security Council called on quer independent nations and will now use all members of the U. N. to assist South Korea armed invasion and war. It has defied the to repel the attack and restore peace. President orders of the Security Council of the United Truman then issued the following statement. See Nations issued to preserve international H. Truman, Memoirs, Vol. II; M. Clark, From peace and security. In these circumstances the Danube to the Valu; L. M. Goodrich, Korea; the occupation of Formosa by Communist A Study of U.S. Policy in the United Nations; forces would be a direct threat to the secur-

R. Foreign T. Oliver, Why War Came in Korea; Council to the on Relations, The U. S.in World Affairs, %tY Of. he the Pacif Pacificdarea andUnited to nite

1950. States forces performing their lawful and necessary functions in that area. Accordingly I have ordered the Seventh Fleet to prevent any attack on Formosa. As a corollary of this action I am calling upon

In Korea the Government forces, which the Chinese Government on Formosa to were armed to prevent border raids and:to cease all air and sea operations against the

McCARRAN INTERNAL SECURITY ACT 741 mainland. The Seventh Fleet will see that mission to provide close working relations this is done. The determination of the future with those forces.

status of Formosa must await the restora- I know that all members of the United tion of security in the Pacific, a peace settle- Nations will consider carefully the consement with Japan, or consideration by the quences of this latest aggression in Korea

United Nations. in defiance of the Charter of the United I have also directed that United States Nations. A return to the rule of force in

Forces in the Philippines be strengthened international affairs would have far reaching and that military assistance to the Philippine effects. The United States will continue ta

Government be accelerated. uphold the rule of law.

I have similarly directed acceleration in I have instructed Ambassador Austin, as the furnishing of military assistance to the the representative of the United States to forces of France and the Associated States the Security Council, to report these steps in Indo-China and the dispatch of a military to the Council.

594. McCARRAN INTERNAL SECURITY ACT September 23, 1950 (Public Law 831, 81st Congress) The growth of Communist power in the post- movement which, in its origins, its dewar world aroused deep fears among many velopment, and its present practice, is a Americans who believed that Communism men- world-wide revolutionary movement whose

aced America not only from without but from purpose it is, by treachery, deceit, infil-

within. In 1947, President . h (governmental a loyalty program designed to keep Truman the federal inaugurated tration into other; BrOUPS (60 government free from subversive influence. See and otherwise), espionage, sabotage, terDoc. No. 574. In 1950, Congress went beyond rorism, and any other means deemed nec-

the Truman program and acted to limit the essary, to establish a Communist totalitaroperation of “subversive” groups in all areas lan dictatorship in the countries throughof American life. Ignoring President Truman’s out the world through the medium of a warning that the act was unconstitutional, world-wide Communist organization. ...

Congress overrode his veto by a voice-vote. (4) The direction and control of the

See W. Gellhorn, Individual Freedom and Gov- world Communist movement is vested in

ernmental Restraints; M. Ernst and D. Loth, d ‘sed by the C ‘st dictator-

Report on the American Communist; F. Bid- AN EXETCISE ey le Sommunist Crctator

dle, The Fear of Freedom; C. Wilcox, ed, Ship of a foreign country. Civil Liberties Under Attack, H. D. Lasswell, (15) The Communist movement in the

National Security and Individual Freedom; C. United States is an organization numbering McWilliams, Witch Hunt; S. A. Stouffer, Com- thousands of adherents, rigidly and ruthmunism, Conformity, and Civil Liberties; H. lessly disciplined. Awaiting and seeking to

Truman, Memoirs, Vol. 11. advance a moment when the United States

may be so far extended by foreign engagements, so far divided in counsel, or AN ACT

so far in industrial or financial straits, that

overthrow of the Government of the

To protect the United States against certain United States by force and violence may un-American and subversive activities by re- seem possible of achievement, it seeks

quiring registration of Communist organiza- . . tions, and for other purposes. converts far and wide by an extensive

system of schooling and indoctrination. Sec. 2. As a result of evidence adduced Such preparations by Communist organibefore various committees of the Senate and zations in other countries have aided in

House of Representatives, the Congress supplanting existing governments. The

hereby finds that— Communist organization in the United (1) There exists a world Communist States, pursuing its stated objectives, the

742 DOCUMENTS OF AMERICAN HISTORY recent successes of Communist methods in (b) Each Communist-front organization

other countries, and the nature and con- ... shall... register with the Attorney trol of the world Communist movement General, on a form prescribed by him by itself, present a clear and present danger regulations, as a Communist-front organiza-

to the security of the United States and tion... . to the existence of free American insti- (d) Upon the registration of each Comtutions, and make it necessary that Con- munist organization under the provisions of gress, in order to provide for the common _ this title, the Attorney General shall publish defense, to preserve the sovereignty of the in the Federal Register the fact that such United States as an independent nation, organization has registered as a Communist-

and to guarantee to each State a repub- action organization, or as a Communistlican form of government, enact appro- front organization, as the case may be, and priate legislation recognizing the existence the publication thereof shall constitute noof such world-wide conspiracy and de- tice to all members of such organization signed to prevent it from accomplishing that such organization has so registered... .

its purpose in the United States... . Sec. 12. (a) There is hereby established

Sec. 4. (a) It shall be unlawful for any a board, to be known as the Subversive person knowingly to combine, conspire, or Activities Control Board, which shall be agree with any other person to perform any composed of five members, who shall be act which would substantially contribute to appointed by the President, by and with the establishment within the United States the advice and consent of the Senate. Not of a totalitarian dictatorship, as defined in more than three members of the Board shall paragraph (15) of section 3 of this title, the | be members of the same political party. Two direction and control of which is to be vested of the original members shall be appointed

in, or exercised by or under the domination for a term of one year, two for a term of or control of, any foreign government, for- two years, and one for a term of three eign organization, or foreign individual: years, but their successors shall be appointed Provided, however, That this subsection shall for terms of three years each, except that not apply to the proposal of a constitutional any individual chosen to fill a vacancy shail

amendment. ... be appointed only for the unexpired term of

(f) Neither the holding of office nor mem- the member whom he shall succeed. The bership in any Communist organization by President shall designate one member to any person shall constitute per se a violation serve as Chairman of the Board. Any mem-

of subsection (a) or subsection (c) of this ber of the Board may be removed by the section or of any other criminal statute. The President, upon notice and hearing, for fact of the registration of any person under — neglect of duty or malfeasance in office, but

section 7 or section 8 of this title as an for no other cause... .

officer or member of any Communist organi- (e) It shall be the duty of the Board—

zation shall not be received in evidence (1) upon application made by the Atagainst such person in any prosecution for torney General under section 13 (a) of any alleged violation of subsection (a) or this title, or by any organization under subsection (c) of this section or for any section 13 (b) of this title, to determine alleged violation of any other criminal stat- whether any organization is a “Commu-

ute. ... nist-action organization” within the mean-

Sec. 7. (a) Each Communist-action or- ing of paragraph (3) of section 3 of this ganization (including any organization re- title, or a “Communist-front organization”

quired, by a final order of the Board, to within the meaning of paragraph (4) of register as a Communist-action organization) section 3 of this title; and shall, within the time specified in subsection (2) upon application made by the At-

(c) of this section, register with the At- torney General under section 13 (a) of torney General, on a form prescribed by him this title, or by any individual under sec-

by regulations, as a Communist-action or- tion 13 (b) of this title, to determine :

ganization. whether any individual is a member of

McCARRAN INTERNAL SECURITY ACT 743 any Communist-action organization regis- nomic and governmental doctrines of tered, or by final order of the Board re- any other form of totalitarianism, either quired to be registered, under section 7 through its own utterances or through

(a) of this title... . any written or printed publications is-

Sec. 22. The Act of October 16,1918... sued or published by or with the peris hereby amended to read as follows: ‘That mission or consent of or under the any alien who is a member of any one of the authority of such organization or paid following classes shall be excluded from ad- for by the funds of such organiza-

mission into the United States: tion... .

“(1) Aliens who seek to enter the ‘“(F) Aliens who advocate or teach

United States whether solely, principally, or who are members of or affiliated or incidentally, to engage in activities with any organization that advocates or which would be prejudicial to the public teaches (i) the overthrow by force or interest, or would endanger the welfare violence or other unconstitutional means

or safety of the United States: of the Government of the United States

“(2) Aliens who, at any time, shall be or of all forms of law; or (ii) the duty, or shall have been members of any of the necessity, or propriety of the unlawful

following classes: assaulting or killing of any officer or “(A) Aliens who are anarchists: officers (either of specific individuals or ‘“(B) Aliens who advocate or amy teachment of officers of theorGovern: of thegenerally) United States of any

or who are members of or affiliated with other organized government, because of

any organization that advocates or his or their official character; or (iii) reaches, Opposition to all organized gov- the unlawful damage, injury, or destruc-

a tion of property; or (iv) sabotage;

“(C) Aliens who are members of or “(G) Aliens who write or publish, or affiliated with (i) the Communist Party cause to be written or published, or of the United States, (ii) any other who knowingly circulate, distribute,

totalitarian party of the United States, print, or display, or knowingly cause to (ili) the Communist Political Associa- be circulated, distributed, printed, pubtion, (iv) the Communist or other to- lished, or displayed, or who knowingly

talitarian party of any State of the have in their possession for the purpose United States, of any foreign state, or of circulation, publication, or display, of any political or geographical subdivi- any written or printed matter, advocat-

sion of any foreign state; (v) any sec- ing or teaching opposition to all ortion, subsidiary, branch, affiliate, or sub- ganized government, or advocating (i)

division of any such association or the overthrow by force or violence or party; or (vi) the direct predecessors other unconstitutional means of the or successors of any such association or Government of the United States or of party, regardless of what name such all forms of law; or (ii) the duty, necesgroup or organization may have used, sity, or propriety of the unlawful asmay now bear, or may hereafter adopt; saulting or killing of any officer or offi-

“(D) Aliens not within any of the cers (either of specific individuals or of other provisions of this paragraph (2) officers generally) of the Government who advocate the economic, interna- of the United States or of any other ortional, and governmental doctrines of ganized government; or (iii) the unworld communism or the economic and lawful damage, injury, or destruction of

governmental doctrines of any other property; or (iv) sabotage; or (v) the form of totalitarianism, or who are economic, international, and govern-

members of or affiliated with any or- mental doctrines of world communism ganization that advocates the economic, or the economic and governmental docinternational, and governmental doc- trines of any other form of totalitarian-

trines of world communism, or the eco- ism... .

744 DOCUMENTS OF AMERICAN History SEC. 102. (a) In the event of any one of (b) A state of “Internal Security Emer-

the following: gency” (hereinafter referred to as the “emer(1) Invasion of the territory of the gency”) so declared shall continue in existUnited States or its possessions, ence until terminated by proclamation of the

(2) Declaration of war by Congress, or President or by concurrent resolution of the

(3) Insurrection within the United Congress... . States in aid of a foreign enemy, Sec. 103. (a) Whenever there shall be in and if, upon the occurrence of one or more existence such an emergency, the President,

of the above, the President shall find that acting through the Attorney General, is the proclamation of an emergency pursuant hereby authorized to apprehend and by order

to this section is essential to the preserva- detain, pursuant to the provisions of this tion, protection and defense of the Constitu- title, each person as to whom there is reason-

tion, and to the common defense and safety able ground to believe that such person of the territory and people of the United probably will engage in, or probably will conStates, the President is authorized to make spire with others to engage in, acts of espublic proclamation of the existence of an pionage or of sabotage. .. . ‘Internal Security Emergency.”

595. TRUMAN’S VETO OF THE McCARRAN ACT September 22, 1950 (81st Congress, 2nd Session, House Doc. No. 708) To the House of Representatives: ternal security measures and would seriously I return herewith, without my approval, hamper the Federal Bureau of Investigation

H. R. 9490, the proposed Internal Security and our other security agencies. . . .

Act of 1950. I therefore most earnestly request the

I am taking this action only after the Congress to reconsider its action. I am conmost serious study and reflection and after ident that on more careful analysis most consultation with the security and intelli- Members of Congress will recognize that this gence agencies of the Government. The De- bill is contrary to the best interests of our partment of Justice, the Department of De- country at this critical time. fense, the Central Intelligency Agency, and H. R. 9490 is made up of a number of the Department of State have all advised different parts. In summary, their purposes me that the bill would seriously damage the and probable effects may be described as security and the intelligence operations for follows: . .. (Analysis of secs. 1-21, and

which they are responsible. They have 23)

strongly expressed the hope that the bill Sections 22 and 25 of this bill would make

would not become law. sweeping changes in our laws governing the

This is an omnibus bill containing many admission of aliens to the United States and different legislative proposals with only one their naturalization as citizens. thing in common: they are all represented The ostensible purpose of these provisions

to be “anti-Communist.” But when the is to prevent persons who would be danmany complicated pieces of the bill are ana- gerous to our national security from enterlyzed in detail, a startling result appears. ing the country or becoming citizens. In fact, H. R. 9490 would not hurt the Commu- present law already achieves that objective.

nists. Instead, it would help them. What these provisions would actually do

It has been claimed over and over again is to prevent us from admitting to our counthat this is an “anti-Communist” bill—a try, or to citizenship, many people who could “Communist control” bill. But in actual op- make real contributions to our national eration the bill would have results exactly strength. The bill would deprive our Govern-

the opposite of those intended. ment and our intelligence agencies of the It would actually weaken our existing in- valuable services of aliens in security opera-

TRUMAN’S VETO OF THE MCCARRAN ACT 745 tions. It would require us to exclude and blows at communism, they would strike to deport the citizens of some friendly non- blows at our own liberties and at our posiCommunist countries. Furthermore, it would tion in the forefront of those working for actually make it easier for subversive aliens freedom in the world. At a time when our to become United States citizens. Only the young men are fighting for freedom in KoCommunist movement would gain from rea, it would be tragic to advance the objec-

such actions. tives of communism in this country, as this Section 24 and sections 26 through 30 of _ bill would do.

this bill make a number of minor changes Because I feel so strongly that this legisin the naturalization laws. None of them is lation would be a terrible mistake, I want to of great significance—nor are they particu- discuss more fully its worst features: sec-

larly relevant to the problem of internal tions 1 through 17 and sections 22 and security. These provisions, for the most part, 25.... have received little or no attention in the Unfortunately, these provisions are not

legislative process. I believe that several of merely ineffective and unworkable. They them would not be approved by the Con- represent a clear and present danger to our gress if they were considered on their merits, institutions.

rather than as parts of an omnibus bill. Insofar as the bill would require registraSection 31 of this bill makes it a crime tion by the Communist Party itself, it does

to attempt to influence a judge or jury by not endanger our traditional liberties. Howpublic demonstration, such as picketing. ever, the application of the registration reWhile the courts already have considerable quirements to so-called Communist-front power to punish such actions under existing organizations can be the greatest danger to law, I have no objection to this section. freedom of speech, press and assembly, since Sections 100 through 117 of this bill (ti- the alien and sedition laws of 1798. This tle II) are intended to give the Government danger arises out of the criteria or standards

power, in the event of invasion, war, or to be applied in determining whether an insurrection in the United States in aid of a organization is a Communist-front organiza-

foreign enemy, to seize and hold persons tion. who could be expected to attempt acts of There would be no serious problem if the . espionage or sabotage, even though they had bill required proof that an organization was as yet committed no crime. It may be that controlled and financed by the Communist

legislation of this type should be on the Party before it could be classified as a Comstatute books. But the provisions in H. R. munist-front organization. However, recog9490 would very probably prove ineffective nizing the difficulty of proving those matters, to achieve the objective sought, since they _ the bill would permit such a determination to

would not suspend the writ of habeas cor- be based solely upon “the extent to which pus, and under our legal system to detain a the positions taken or advanced by it from man not charged with a crime would raise time to time on matters of policy do not serious constitutional questions unless the deviate from those” of the Communist movewrit of habeas corpus were suspended. Fur- ment. thermore, it may well be that other persons This provision could easily be used to than those covered by these provisions would classify as a Communist-front organization be more important to detain in the event of any organization which is advocating a single emergency. This whole problem, therefore, policy or objective which is also being urged should clearly be studied more thoroughly by the Communist Party or by a Communist before further legislative action along these foreign government. In fact, this may be the

lines is considered. intended result, since the bill defines “orIn brief, when all the provisions of H. R. ganization” to include “a group of persons 9490 are considered together, it is evident ... permanently or temporarily associated that the great bulk of them are not directed together for joint action on any subject or toward the real and present dangers that subjects.” Thus, an organization which adexist from communism. Instead of striking vocates low-cost housing for sincere humani-

746 DOCUMENTS OF AMERICAN HISTORY tarlan reasons might be classified as a Com- express no views on controversial subjects.

munist-front organization because the Com- The result could only be to reduce the munists regularly exploit slum conditions as vigor and strength of our political life—an one of their fifth-column techniques. outcome that the Communists would happily It is not enough to say that this probably welcome, but that freemen should abhor. would not be done. The mere fact that it We need not fear the expression of ideas could be done shows clearly how the bill —we do need to fear their suppression. would open a Pandora’s box of opportunities Our position in the vanguard of freedom for official condemnation of organizations and __ rests largely on our demonstration that the | individuals for perfectly honest opinions free expression of opinion, coupled with gOvwhich happen to be stated also by Commu- ernment by popular consent, leads to national

nists. strength and human advancement. Let us :

The basic error of these sections is that not, in cowering and foolish fear, throw away they move in the direction of suppressing the ideals which are the fundamental basis opinion and belief. This would be a very of our free society. dangerous course to take, not because we Not only are the registration provisions of have any sympathy for Communist opinions, — this bill unworkable and dangerous, they are

but because any governmental stifling of the also grossly misleading in that all but one free expression of opinion is a long step to- of the objectives which are claimed for them

ward totalitarianism. are already being accomplished by other and

There is no more fundamental axiom of superior methods—and the one objective American freedom than the familiar state- which is not now being accomplished would ment: In a free country we punish men for not in fact be accomplished under this bill the crimes they commit but never for the _ either.

opinions they have. And the reason this is so It is claimed that the bill would provide : fundamental to freedom is not, as many information about the Communist Party and suppose, that it protects the few unorthodox its members. The fact is, the FBI already from suppression by the majority. To permit possesses very complete sources of informa-

freedom of expression is primarily for the tion concerning the Communist movement benefit of the majority, because it protects in this country. If the FBI must disclose its criticism, and criticism leads to progress. sources of information in public hearings to We can and we will prevent espionage, require registration under this bill, its pressabotage, or other actions endangering our ent sources of information, and its ability to national security. But we would betray our acquire new information, will be largely

finest traditions if we attempted, as this destroyed. bill would attempt, to curb the simple ex- It is claimed that this bill would deny pression of opinion. This we should never income-tax exemptions to Communist ordo, no matter how distasteful the opinion ganizations. The fact is that the Bureau of may be to the vast majority of our people. Internal Revenue already denies income-tax The course proposed by this bill would de- exemptions to such organizations.

light the Communists, for it would make a It is claimed that this bill would deny mockery of the Bill of Rights and of our passports to Communists. The fact is that claims to stand for freedom in the world. the Government can and does deny passAnd what kind of effect would these pro- ports to Communists under existing law. visions have on the normal expression of po- It is claimed that this bill would prohibit litical views? Obviously, if this law were on the employment of Communists by the Fed-

the statute books, the part of prudence’ eral Government. The fact is that the emwould be to avoid saying anything that might ployment of Communists by the Federal be construed by someone as not deviating Government is already prohibited and, at

sufficiently from the current Communist- least in the executive branch, there is an propaganda line. And since no one could be_ effective program to see that they are not sure in advance what views were safe to ex- employed. press, the inevitable tendency would be to It is claimed that this bill would prohibit

TRUMAN’S VETO OF THE MCCARRAN ACT 747 the employment of Communists in defense of the bill the present Government of Spain,

plants. The fact is that it would be years among others, would be classified as “tobefore this bill would have any effect of this talitarian.” As a result, the Attorney Gennature—if it every would. Fortunately, this eral would be required to exclude from the objective is already being substantially United States all Spanish businessmen, stuachieved under the present procedures of the dents, and other nonofficial travelers who Department of Defense, and if the Congress support the present Government of their would enact one of the provisions I have country. I cannot understand how the spon-

recommended—which it did not include in sors of this bill can think that such an this bill—the situation would be entirely action would contribute to our national setaken care of, promptly and effectively. ... curity... . Sections 22 and 25 of this bill are directed Section 22 is so contrary to our national toward the specific questions of who should _ interests that it would actually put the Govbe admitted to our country, and who should ernment into the business of thought control be permitted to become a United States citi- by requiring the deportation of any alien zen. I believe there is general agreement who distributes or publishes, or who is affilthat the answers to those questions should iated with an organization which distributes be: We should admit to our country, within or publishes, any written or printed matter the available quotas, anyone with a legiti- advocating (or merely expressing belief in) mate purpose who would not endanger our the economic and governmental doctrines of security, and we should admit to citizenship any form of totalitarianism. This provision any immigrant who will be a loyal and con- does not require an evil intent or purpose structive member of the community. Those on the part of the alien, as does a similar are essentially the standards set by existing provision in the Smith Act. Thus, the Atlaw. Under present law we do not admit to torney General would be required to deport our country known Communists because we any alien operating or connected with a believe they work to overthrow our Govern- well-stocked bookshop containing books on ment, and we do not admit Communists to economics or politics written by supporters citizenship because we believe they are not of the present Governments of Spain, of

loyal to the United States. Yugoslavia, or any one of a number of other The changes which would be made in the’ countries. Section 25 would make the same present law by sections 22 and 25 would not aliens ineligible for citizenship. There should reinforce those sensible standards. Instead, be no room in our laws for such hysterical they would add a number of new standards, provisions. The next logical step would be

which, for no good and sufficient reason, to “‘burn the books.” would interfere with our relations with other This illustrates the fundamental error of countries and seriously damage our national these immigration and naturalization pro-

security. visions. It is easy to see that they are hasty Section 22 would, for example, exclude and ill-considered. But far more significant— from our country anyone who advocates any and far more dangerous—is their apparent form of totalitarian or one-party govern- underlying purpose. Instead of trying to enment. We, of course, believe in the demo- courage the free movement of people, subcratic system of competing political parties, ject only to the real requirements of national offering a choice of candidates and policies. security, these provisions attempt to bar But a number of countries with which we movement to anyone who is, or once was, maintain friendly relations have a different associated with ideas we dislike and, in the

form of government. process, they would succeed in barring many

Until now no one has suggested that we people whom it would be to our advantage should abandon cultural and commercial re- to admit. lations with a country merely because it has Such an action would be a serious blow a form of government different from ours. to our work for world peace. We uphold—or Yet section 22 would require that. As one have upheld till now, at any rate—the coninstance, it is clear that under the definitions cept of freedom on an international scale.

748 DOCUMENTS OF AMERICAN HISTORY That is the root concept of our efforts to threat of Communist aggression. We will bring unity among the free nations and peace _ fail in this, and we. will destroy all that we

in the world. seek to preserve, if we sacrifice the liberties The Communists, on the other hand, at- of our citizens in a misguided attempt to tempt to break down in every possible way achieve national security.

the free interchange of persons and ideas. It There is no reason why we should fail. will be to their advantage, and not ours, if Our country has been through dangerous we establish for ourselves an “iron curtain” times before, without losing our liberties to against those who can help us in the fight external attack or internal hysteria. Each of

for freedom... . us, in Government and out, has a share in I do not undertake lightly the responsibil- guarding our liberties. Each of us must ity of differing with the majority in both search his own conscience to find whether

Houses of Congress who have voted for this he is doing all that can be done to preserve bill. We are all Americans; we all wish to and strengthen them. Safeguard and preserve our constitutional No considerations of expediency can jusliberties against internal and external ene- tify the enactment of such a bill as this, a mies. But I cannot approve this legislation, bill which would so greatly weaken our lib-

which instead of accomplishing its avowed erties and give aid and comfort to those purpose would actually interfere with our who would destroy us. I have, therefore, no liberties and help the Communists against alternative but to return this bill without my

whom the bill was aimed. approval, and I earnestly request the ConThis is a time when we must marshal all gress to reconsider its action. our resources and all the moral strength of

our free system in self-defense against the Harry S. TRUMAN 596. ACHESON’S ADDRESS ON STRATEGY OF FREEDOM November 29, 1950 (Department of State Bulletin, Vol. XXIII, pp. 962-967) Secretary of State Dean Acheson outlined the which most nations participate, the United major elements of the foreign policy of the Nations can also help to bring about the acTruman administration in this address: on The commodations of interest and the adjustStrategy of Freedom. Coming at a critical time ments of differences which are essential to during the Korean War, it represented an effort peace in a world of change. to secure nationwide understanding and sup- Our action in Korea. as we have seen. is

port the police the United States. ; and theof United Nations. action intended of to support the authority of the

United Nations against aggression. In the current session of the General Assembly, we

have initiated a number of measures deThere are six main elements in the Strat- signed to increase the effectiveness of the

egy of Freedom. United Nations action against aggression.

First is the development of an interna- We intend to do our full part in helping the tional order for the preservation of peace United Nations to grow in strength. and freedom under the United Nations. The The second element in the Strategy of Charter of the United Nations expresses the Freedom is the development of regional universal aspirations of mankind, and the groupings, within the framework of the organization itself is a symbol of these as- United Nations. To insure their collective pirations. But the United Nations is also security, free nations are engaged in comore than a symbol. It is a means through operative defense measures, not possible on which we can take practical, day-by-day a universal basis at the present time. The steps toward the building of a stable inter- keystone of the defense system of the free national community. As an organization in world is being built in the North Atlantic

ACHESON’S ADDRESS ON STRATEGY OF FREEDOM 749 community, and among the states of the Although the amount of resources avail-

Western Hemisphere. able for economic assistance is limited by

A whole network of cooperative institu- the defense requirements imposed upon us tions has been developing among the free by Soviet action, even under the burden of nations of the North Atlantic and Western rearmament, free societies can more effecEuropean area, each a practical response to tively provide for human well-being and ada felt need. The problems they face are ex- vancement than tyrannical regimes. The tremely complex, but progress has been productive power of free men, who are aware made toward overcoming ancient national of the dangers that face them and who are hostilities, and in developing a common will determined to meet the challenge to their and a sense of confidence in the potentiali- freedom, cannot be matched by authoritarian ties of the North Atlantic community, work- _ societies.

ing together as a community. With our technical assistance, the resolve In this hemisphere, the accomplishments of the free peoples of Latin America, Asia, of the Organization of American States in Africa, and the Middle East to better the promoting unity of action have been remark- conditions of their lives can become a powerable. Support of this organization is funda- ful drive against the age-old banes of poverty

mental to our policy. and disease and the political instability which

The essential ingredient in these regional often accompanies them. Men everywhere developments has been a sense of community have awakened to the opportunities for interest among neighbor nations. The de- progress which modern science and techvelopment of further regional organizations nology have opened. We can help them to depends in the first instance upon the ex- help themselves, and it is in our interest to istence of this community sense among the do so.

people of other areas. Our technical assistance is not philan[he third element in our Strategy of thropy, for here our principles and aur self-

Freedom is the rapid building up of military interest coincide. As the people of understrength at home and among our allies. I developed areas rise from poverty, not only stress the word “rapid” because the period will our own economy benefit, but also and of greatest danger is directly before us. Our even more important the real promise of defense must not only be strong enough, it freedom will expose the false promises of

must come soon enough. Bolshevik imperialism, and the peoples of There is only one test of whether our these countries will grow in their recogni-

defense preparations are adequate: That is tion of the common interest and purpose of to measure them. against a sober calculation the free nations.

of the danger which faces us. So far as possible, economic cooperation,

So measured, the defense efforts of the like defense cooperation and collective seUnited States and other free nations are curity programs, is being carried on through inadequate. A greatly increased scale and the United Nations and regional organizatempo of effort is required on the part of all tions in order to strengthen international free nations to enable them to overcome institutions devoted to peace and security.

this inadequacy at the earliest possible mo- The fifth element in the Strategy of

ment. Freedom is a readiness at all times to negoPhe fourth element is economic coopera- tiate just settlements of international distion. This has a dual character. It contri- putes and to find just accommodations of butes powerfully to the building of our conflicting interests. Our experience has demdefenses against external attack. It also is onstrated that the Soviet rulers cannot be an instrument for helping to build healthy expected to accept fair and equal negotiation

societies in which the vitality and the prom- so long as they feel capable of imposing their ise of freedom find practical expression—in own terms or exacting their own price. Their comparison with which the decadence and concept of negotiation is that it should re-

despair of Communist tyranny is starkly cord the facts of power rather than the re-

exposed. quirements of justice. We shall not seek to

750 DOCUMENTS OF AMERICAN HISTORY use our power in this way, but as the free how we conduct ourselves at home and world develops strength, the Soviet rulers abroad. The force of example and action is may find it advantageous to adjust differ- the factor which finally determines what our ences equitably rather than to seek to im- influence is to be. pose their demands. The free nations must If we are to be worthy of the leadership

always be prepared to enter into genuine that derives from our power, we must be negotiations, and even to take the initiative sure that we are true to the values and prinin efforts to bring about honest negotiation. ciples upon which our society is founded. It If the issues are clear, free men will not is the example of democracy at work, vigorbe prey to unrealistic expectations, nor to ous, healthy, respectful of its first principles, propaganda abuse of the negotiating process. growing in freedom and justice and opporIt is in the long perspective that results may tunity, that can inspire ourselves and others be expected, not in the fits and starts of to meet the tasks ahead with hope and con-

shifting tactics. fidence.

Because our earnest desire is peace, we Without this, which depends on every shall remain constantly receptive to genuine ono of us on the everyday conduct of each negotiation. With the confidence that comes Gijon the Strategy of Freedom would “be-

of strength and the humility that comes (ome as sounding brass or a tinkling cymfrom our devotion to Christian principles, pa)» — _ we shall be endlessly patient in working for The six elements of the Strategy of Freepeace. And we shall at the same time be end- dom— f the United Nat; d lessly alert to defend the bases of our na- om—support of the Unite NATIONS, Ce

tonal life. yen line regional ene the ; rapid building up of our stren in partPhe sixth element in the Strategy of nership with our allies, economic coopera.

Freedom is a firm adherence in all our ac- tion, readiness to negotiate, and a firm lions, at home and abroad, to the moral adherence to the fundamental purposes and values which give meaning to our lives. | ; principles of our society—constitute a naWe are a young country, an enthusiastic tional policy, not a party policy. They have people, and despite our great interest In ma- emerged from a long process of discussion terial progress, we are an idealistic nation. and consideration as the practical requireThe principles to which our common life is ments of a policy adequate to the problems

dedicated are powerful forces for good in which confront us. They are rooted in our the world. The affirmative valu of our so- traditions. They find general support in both ciety have been deeply inspiring to those ties who have seen and felt their great creative par eS. force. We do not always present our best It is right and proper that there should side to the world. In our enthusiasm and be differences of opinion among us about drive we often do not take care to make the execution of this policy, and about quesourselves understood, and expect others to ‘Ons of emphasis, priorities, application and

recognize us for what we are. We have administration. No one has a monopoly of launched a greatly expanded information wisdom and the vigor and vitality of a program to bring knowledge of ourselves to democratic society derive from free discusother peoples, a program which the Presi- 0? and debate and the consent which flows dent has called “The Campaign of Truth.” from understanding. However vigorous our

It is our purpose to carry to all parts of debates may be, it should be made clear to the world the facts about what is happening all that our country is united in its deterin America and in the world, because it is a nation to hew to the Strategy of Freedom fundamental part of our democratic faith which is our national policy.

that people, if informed of the truth, will The nation’s peril is our challenge. The make sound judgments. What is even more united will of the people must be our animportant than what we say to the world is — swer.

Dennis v. U.S. 751 597. DENNIS v. U. S. 341 U.S. 494 1951

The Truman administration opened its drive to organize as the Communist Party of the against internal communism in 1948 by ob- United States of America a society, group taining the indictment of eleven high-ranking = and assembly of persons who teach and adCommunist leaders for conspiring to teach and cate the overthrow and destruction of the advocate the violent overthrow of the govern- Government of the United States by force See Doc. No. 531. Convicted in the lower and violence, and (2) knowingly and wilCourts, the Communists carried their case to fully to advocate and teach the duty and the Supreme Court, which voted six to two to necessity of overthrowing and destroying the sustain the Smith Act and the conviction of the Government of the United States by force

ment in violation of the Smith Act of 1940. . ,;

Communist leaders. This decision modified the and violence. The indictment further alleged

“clear and present danger” doctrine of Justice that § 2 of the Smith Act proscribes these Holmes by holding that offenders could be acts and that any conspiracy to take such punished for conspiring to teach and advocate action is a violation of § 3 of the Act... . revolution. See M. L. Ernst and D. L. Loth, The obvious purpose of the statute is to Report on the American Communist; C. H. ie Pritchett, Czvil Liberties and the Vinson Court; protect existing Government, not from W. Mendelson, “Clear and Present Danger— Change by peaceable, lawful and constituFrom Schenck to Dennis,” 52 Columbia Law tional means, but from change by violence, Review, 313; N. L. Nathanson, “Communist revolution and terrorism. That it is within Trial and the Clear and Present Danger Test” the power of the Congress to protect the 63 Harv. L. Rev., 1167 H. S. Commager, Free- Government of the United States from dom, Loyalty and Dissent; T. Draper, Roots aymed rebellion is a proposition which re-

of American Communism. quires little discussion. Whatever theoretical

merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where

Appeal from the Second United States Court ofPh srovides. fe en - thechange. Severe Appeals for the Circuit. . P ANG Orderly We reject any principle of governmental Vinson, C. J. Petitioners were indicted in helplessness in the face of preparation for July, 1948, for violation of the conspiracy revolution, which principle, carried to its provisions of the Smith Act, § 11, during the logical conclusion, must lead to anarchy. No

period of April, 1945, to July, 1948... . one could conceive that it is not within the A verdict of guilty as to all the petitionérs power of Congress to prohibit acts intended was returned by the jury on October 14, to overthrow the Government by force and 1949. The Court of Appeals affirmed the violence. The question with which we are convictions. 183 F. 2d 201. We granted cer- concerned here is not whether Congress has

tiorari limited to the following two ques- such power, but whether the means which tions: (1) Whether either § 2 or § 3 of the it has employed conflict with the First and smith Act, inherently or as construed and Fifth Amendments to the Constitution. applied in the instant case, violates the First One of the bases for the contention that Amendment and other provisions of the Bill the means which Congress has employed of Rights; (2) whether either § 2 or § 3 of are invalid takes the form of an attack on the the Act, inherently or as construed and ap- face of the statute on the grounds that by plied in the instant case, violates the First its terms it prohibits academic discussion and Fifth Amendments because of indefinite- of the merits of Marxism-Leninism, that it

ness. ... stifles ideas and is contrary to all concepts

The indictment charged the‘ petitioners of a free speech and a free press. ... with wilfully and knowingly conspiring (1) The very language of the Smith Act ne-

752 DOCUMENTS OF AMERICAN HISTORY gates the interpretation which petitioners that where an offense is specified by a would have us impose on that Act. It is statute in nonspeech or nonpress terms, a directed at advocacy, not discussion. Thus, conviction relying upon speech or press as the trial judge properly charged the jury that evidence of violation may be sustained only

they could not convict if they found that when the speech or publication created a petitioners did “no more than pursue peace- “clear and present danger” of attempting or ful studies and discussions or teaching and accomplishing the prohibited crime... .

advocacy in the realm of ideas.” He further In this case we are squarely presented charged that it was not unlawful “to con- with the application of the “clear and presduct in an American college and university ent danger” test, and must decide what that a course explaining the philosophical theo- phrase imports... . ries set forth in the books whieh have been Obviously, the words cannot mean that

placed in evidence.” Such a charge is in before the Government may act, it must strict accord with the statutory language, wait until the putsch is about to be exeand illustrates the meaning to be placed on cuted, the plans have been laid and the those words. Congress did not intend to _ signal is awaited. If Government is aware eradicate the free discussion of political that a group aiming at its overthrow is attheories, to destroy the traditional rights of tempting to indoctrinate its members and Americans to discuss and evaluate ideas to commit them to a course whereby they without fear of governmental sanction. Ra- will strike when the leaders feel the circumther Congress was concerned with the very stances permit, action by the Government kind of activity in which the evidence showed is required. The argument that there is no

these petitioners engaged. need for Government to concern itself, for

But although the statute is not directed Government is strong, it possesses ample at the hypothetical cases which petitioners powers to put down a rebellion, it may dehave conjured, its application in this case feat the revolution with ease needs no anhas resulted in convictions for the teaching swer. For that 1s not the question. Certainly and advocacy of the overthrow of the Gov- an attempt to overthrow the Government by ernment by force and violence, which, even force, even though doomed from the outset though coupled with the intent to accom- because of inadequate numbers or power plish that overthrow, contains an element of the revolutionists, is a sufficient evil for

of speech. For this reason, we must pay Congress to prevent. The damage which special heed to the demands of the First such attempts create both physically and Amendment marking out the boundaries of politically to a nation makes it impossible

speech. to measure the validity in terms of the We pointed out in Douds, supra, that the probability of success, or the immediacy of basis of the First Amendment is the hy- a successful attempt. In the instant case the pothesis that speech can rebut speech, propa- trial judge charged the jury that they could

ganda will answer propaganda, free debate not convict unless they found that petiof ideas will result in the wisest govern- tioners intended to overthrow the Governmental policies. It is for this reason that ment “as speedily as circumstances would this Court has recognized the inherent value permit.” This does not mean, and could not of free discourse. An analysis of the leading properly mean, that they would not strike cases in this Court which have involved’ until there was certainty of success. What direct limitations on speech, however, will was meant was that the revolutionists would demonstrate that both the majority of the strike when they thought the time was ripe. Court and the dissenters in particular cases We must therefore reject the contention that have recognized that this is not an unlim- success or probability of success is the cri-

ited, unqualified right, but that the societal terion... . value of speech must, on occasion, be subor- The mere fact that from the period 1945

dinated to other values and considera- to 1948 petitioners’ activities did not result

tions. ... in an attempt to overthrow the Government The rule we deduce from these cases is by force and violence is of course no answer

DENNIS v. U. S. 753 to the fact that there was a group that was under other circumstances to strike a balready to make the attempt. The formation ance between authority and liberty.

by petitioners of such a highly organized Activity here charged to be criminal is conspiracy, with rigidly disciplined members conspiracy—that defendants conspired to subject to call when the leaders, these peti- teach and advocate, and to organize the

tioners, felt that the time had come for Communist Party to teach and advocate, action, coupled with the inflammable nature overthrow and destruction of the Governof world conditions, similar uprisings in other ment by force and violence. There is no

countries, and the touch-and-go nature of charge of actual violence or attempt at our relations with countries with whom peti- overthrow.

tioners were in the very least ideologically The principal reliance of the defense in attuned, convince us that their convictions this Court is that the conviction cannot were justified on this score. And this analysis stand under the Constitution because the disposes of the contention that a conspiracy conspiracy of these defendants presents no to advocate, as distinguished from the ad- ‘clear and present danger” of imminent or vocacy itself, cannot be constitutionally re- foreseeable overthrow. .. .

strained, because it comprises only the If we must decide that this Act and its

preparation. It is the existence of the con- application are constitutional only if we are spiracy which creates the danger. Cf. Pinker- convinced that petitioner’s conduct creates ton v. United States, 328 U.S. 640 (1946); a “clear and present danger” of violent overGoldman v. United States, 245 U. S. 474 throw, we must appraise imponderables, in(1918); United States v. Rabinowich, 238 cluding international and national phenomena U. S. 78 (1915). If the ingredients of the which baffle the best informed foreign offices reaction are present, we cannot bind the and our most experienced politicians. We Government to wait until the catalyst is would have to foresee and predict the effec-

added... . tiveness of Communist propaganda, opporWe hold that §§ 2 (a) (1), 2 (a) (3) and tunities for infiltration; whether, and when, 3 of the Smith Act, do not inherently, or as a time will come that they consider propiconstrued or applied in the instant case, tious for action, and whether and how fast violate the First Amendment and other pro- _ our existing government will deteriorate. And visions of the Bill of Rights, or the First and we would have to speculate as to whether an Fifth Amendments because of indefiniteness. approaching Communist coup would not be

Petitioners intended to overthrow the Gov- anticipated by a nationalistic fascist moveernment of the United States as speedily as ment. No doctrine can be sound whose apthe circumstances would permit. Their con- plication requires us to make a prophecy of

spiracy to organize the Communist Party that sort in the guise of a legal decision. and to teach and advocate the overthrow The judicial process simply is not adequate of the Government of the United States by to a trial of such far-flung issues. The anforce and violence created a “clear and pres- swers given would reflect our own political ent danger” of an attempt to overthrow the predilections and nothing more. Government by force and violence. They The authors of the clear and present danwere properly and constitutionally convicted ger test never applied it to a case like this,

for violation of the Smith Act. The judg- nor would I. If applied as it is proposed

ments of conviction are here, it means that the Communist plotting Affirmed. is protected during its period of incubation; its preliminary stages of organization and Jackson, V., concurring. This prosecution preparation are immune from the law; the is the latest of never-ending, because never Government can move only after imminent successful, quests for some legal formula action is manifest, when it would, of course

that will secure an existing order against be too late. ) revolutionary radicalism. It requires us to The highest degree of constitutional proreappraise, in the light of our own times and tection is due to the individual acting withconditions, constitutional doctrines devised out conspiracy. But even an individual can-

754 DOCUMENTS OF AMERICAN HISTORY not claim that the Constitution protects him the crime involved in this case is, and what in advocating or teaching overthrow of gov- it is not. These petitioners were not charged ernment by force or violence. I should sup- with an attempt to overthrow the Governpose no one would doubt that Congress has ment. They were not charged with nonpower to make such attempted overthrow a_ verbal acts of any kind designed to overthrow crime. But the contention is that one has the Government. They were not even charged the constitutional right to work up a public with saying anything or writing anything desire and will to do what it is a crime to designed to overthrow the Government. The attempt. I think direct incitement by speech charge was that they agreed to assemble and or writing can be made a crime, and I think to talk and publish certain ideas at a later

there can be a conviction without also date: The indictment is that they conspired proving that the odds favored its success by to organize the Communist Party and to use 99 to 1, or some other extremely high ratio. speech or newspapers and other publications The names of Mr. Justice Holmes and in the future to teach and advocate the forciMr. Justice Brandeis cannot be associated ble overthrow of the Government. No matwith such a doctrine of governmental dis- ter how it is worded, this is a virulent form

ability. After the Schenck case, in which of prior censorship of speech and press, they set forth the clear and present danger which I believe the First Amendment fortest, they joined in these words of Mr. Jus- bids. I would hold § 3 of the Smith Act tice Holmes, spoken for a unanimous Court: authorizing’ this prior restraint unconstitu-

“.. [T]he First Amendment while — tional on its face and as applied. prohibiting legislation against free speech But let us assume, contrary to all conas such cannot have been, and obviously _ stitutional ideas of fair criminal procedure,

was not, intended to give immunity for that petitioners although not indicted for every possible use of language. Robertson the crime of actual advocacy, may be punv. Baldwin, 165 U. S. 275, 281. We ven- ished for it. Even on this radical assumpture to believe that neither Hamilton nor tion, the only way to affirm these convicMadison, nor any other competent person tions, as the dissent of Mr. Justice Doucthen or later, ever supposed that to make Las shows, is to qualify drastically or wholly criminal the counselling of a murder repudiate the established “clear and present within the jurisdiction of Congress would danger” rule. This the Court does in a way be an unconstitutional interference with which greatly restricts the protections affree speech.” Frohwerk v. United States, forded by the First Amendment. The opin-

249 U. S. 204. ions for afhrmance show that the chief

The same doctrine was earlier stated in reason for jettisoning the rule is the ex-

Fox v. Washington, 236 U. S. 273, 277, and pressed fear that advocacy of Communist

that case was recently and with approval doctrine endangers the safety of the Recited in Giboney v. Empire Storage & Ice public. Undoubtedly, a governmental policy

Co., 336 U.S. 490, 502. of unfettered communication of ideas does

As aptly stated by Judge Learned Hand __ entail dangers. To the Founders of this Na-

in Masses Publishing Co. v. Patten, 244 F. tion, however, the benefits derived from 535, 540: “One may not counsel or advise free expression were worth the risk. They others to violate the law as it stands. Words embodied this philosophy in the First are not only the keys of persuasion, but the Amendment’s command that Congress “shall triggers of action, and those which have no make no law abridging . . . the freedom of purport but to counsel the violation of law speech, or of the press . . . .” I have always

cannot by any latitude of interpretation be believed that the First Amendment is the a part of that public opinion which is the keystone of our Government, that the freefinal source of government in a democratic doms it guarantees provide the best insur-

state.” ... ance against destruction of all freedom. At least as to speech in the realm of public

BLACK, J., dissenting... . matters, I believe that the “clear and pres-

At the outset I want to emphasize what ent danger” test does not “mark the further-

DeENnNIs v. U. S. 755 most constitutional boundaries of protected our society. Its protection is essential to the expression” but does “no more than recog- very existence of a democracy. The airing nize a minimum compulsion of the Bill of of ideas releases pressures which otherwise Rights.” Bridges v. California, 314 U. S. might become destructive. When ideas com-

252, 263. pete in the market for acceptance, full and

Sd long as this Court exercises the power free discussion exposes the false and they of judicial review of legislation, I cannot gain few adherents. Full and free discussion agree that the First Amendment permits us even of ideas we hate encourages the testing to sustain laws suppressing freedom of speech of our own prejudices and preconceptions. and press on the basis of Congress’ or our ‘Full and free discussion keeps a society from own notions of mere “reasonableness.” Such becoming stagnant and unprepared for the

a doctrine waters down the first Amend- stresses and strains that work to tear all ment so that it amounts to little more than civilizations apart. an admonition to Congress. The Amendment Full and free discussion has indeed been

as so construed is not likely to protect any the first article of our faith. We have but those “safe” or orthodox views which founded our political system on it. It has

rarely need its protection. .. . been the safeguard of every religious, politPublic opinion being what it now is, few ical, philosophical, economic, and racial group will protest the conviction of these Commu- amongst us. We have counted on it to keep nist petitioners. There is hope, however, us from embracing what is cheap and false; that in calmer times, when present pressures, we have trusted the common sense of our

passions and fears subside, this or some people to choose the doctrine true to our later Court will restore the First Amend- genius and to reject the rest. This has been ment liberties to the high preferred place the one single outstanding tenet that has where they belong in a free society. made our institutions the symbol of freedom and equality. We have deemed it more Douctas. J., dissenting. If this were a case costly to liberty to suppress a despised miwhere those who claimed protection under nority than to let them vent their spleen. the First Amendment were teaching the tech- We have above all else feared the political niques of sabotage, the assassination of the censor. We have wanted a land where our President, the filching of documents from people can be exposed to all the diverse public files; the planting of bombs, the art of | creeds and cultures of the world.

street warfare, and the like, I would have no There comes a time when even speech doubts. The freedom to speak is not abso- loses its constitutional immunity. Speech lute; the teaching of methods of terror and innocuous one year may at another time fan other seditious conduct should be beyond the such destructive flames that it must be pale along with obscenity and immoral- halted in the interests of the safety of the

ity. ... Republic. That is the meaning of the clear So far as the present record is concerned, and present danger test. When conditions what petitioners did was to organize people are so critical that there will be no time to to teach and themselves teach the Marxist- avoid the evil that the speech threatens, it Leninist doctrine contained chiefly in four is time to call a halt. Otherwise, free speech books: Foundations of Leninism by Stalin which is the strength of the Nation will be (1924), The Communist Manifesto by Marx the cause of its destruction. and Engels (1848), State and Revolution Yet free speech is the rule, not the excepby Lenin (1917), History of the Communist tion. The restraint to be constitutional must Party of the Soviet Union (B) (1939). ... be based on more than fear, on more than I repeat that we deal here with speech passionate opposition against the speech, on alone, not with speech plus acts of sabotage more than a revolted dislike for its contents. or unlawful conduct. Not a single seditious There must be some immediate injury to so-

act 1s charged in the indictment. ciety that is likely if speech is allowed. .. .

Free speech has occupied an exalted posi- The nature of Communism as a force on tion because of the high service it has given the world scene would, of course, be relevant

756 DOCUMENTS OF AMERICAN HISTORY to the issue of clear and present danger of ideas; their wares remain unsold. The fact.

petitioners’ advocacy within the United that their ideas are abhorrent does not States. But the primary consideration is the make them powerful... . strength and tactical position of petitioners The First Amendment provides that “Conand their converts in this country. On that gress shall make no law . . . abridging the there is no evidence in the record. If we are freedom of speech.” The Constitution proto take judicial notice of the threat of Com- vides no exception. This does not mean, munists within the nation, it should not be however, that the Nation need hold its hand difficult to conclude that as a political party until it is in such weakened condition that they are of little consequence. Communists there is no time to protect itself from inin this country have never made a respect- citement to revolution. Seditious conduct able or serious showing in any election. I can always be punished. But the command would doubt that there is a village, let alone of the First Amendment is so clear that we a city or county or state which the Commu- — should not allow Congress to call a halt to

nists could carry. Communism in the world free speech except in the extreme case of scene is no bogey-man; but Communism as_ peril from the speech itself. The First a political faction or party in this country Amendment makes confidence in the complainly is. Communism has been so thor- mon sense of our people and in their maturoughly exposed in this country that it has ity of judgment the great postulate of our been crippled as a political force. Free speech democracy. Its philosophy is that violence has destroyed it as an effective political is rarely, if ever, stopped by denying civil party. It is inconceivable that those who liberties to those advocating resort to force. went up and down this country preaching The First Amendment reflects the philosophy the doctrine of revolution which petitioners of Jefferson “that it is time enough for the espouse would have any success. In days of _ rightful purposes of civil government for its trouble and confusion when bread lines were officers to interfere when principles break

long, when the unemployed walked the out into overt acts against peace and good streets, when people were starving, the ad- order.” The political censor has no place in vocates of a short-cut by revolution might our public debates. Unless and until exhave a chance to gain adherents. But today treme and necessitous circumstances are there are no such conditions. The country shown our aim should be to keep speech is not in despair; the people know Soviet unfettered and to allow the processes of law Communism; the doctrine of Soviet revolu- to be invoked only when the provocateurs tion is exposed in all of its ugliness and the among us move from speech to action.

American people want none of it. Vishinsky wrote in 1948 in The Law of How it can be said that there is a clear the Soviet State, “In our state, naturally and present danger that this advocacy will there can be no place for freedom of speech, succeed is, therefore, a mystery. Some na-_ press, and so on for the foes of socialism.” tions less resilient than the United States, Our concern should be that we accept no where illiteracy is high and where democratic such standard for the United States. Our traditions are only budding, might have to faith should be that our people will never

take drastic steps and jail these men for give support to these advocates of revolumerely speaking their creed. But in America tion, so long as we remain loyal to the purthey are miserable merchants of unwanted _ poses for which our Nation was founded. ...

ANTI-Fascist REFUGEE COMMITTEE V. MCGRATH 757 598. JOINT ANTI-FASCIST REFUGEE COMMITTEE v. McGRATH 341 U. S. 123 1951

President Truman’s Loyalty Program provided been afforded any opportunity to substanfor the compilation by the Attorney General tiate their allegations, but at this stage of of a list of subversive organizations. Under this the proceedings the Attorney General has mandate, the Attorney General designated the chosen not to deny their allegations and has J oint Anti-Fascist Refugee Committee a Com- not otherwise placed them in issue.

munist organization. appealed Whmay be hic thority to desigto the courts to restrainThe theCommittee Attorney General atever IS authority .8 on the ground that the designation did not con- ale these organizations as Communist upon

form to the fair procedures required by the Undisclosed facts in his possession, he has due process clause of the Fifth Amendment. In _ not chosen to limit himself to that authorizafive separate concurring opinions, a majority of tion. By his present procedure he has claimed the Court supported the position of the Com- authority so to designate them upon the very

mittee. See C. Wilcox, ed., Civil Liberties Under facts alleged by them in their own com-

witch 5 Cn Wy cei Cie aries ene i“ plaints. Self-serving or not, those allegations

and Covernme ntal Restraints do not state facts from which alone a reas-

) onable determination can be derived that the organizations are Communist. To defend

such a designation of them, on the basis of the complaints alone, is an assertion of

istrict Court for the District of Columbia. , .

Appel from the decision of the United States Greanination atthe option of the “Attorney General without reliance upon either dis-

Burton, J. In each of these cases the closed or undisclosed facts supplying a reasame issue is raised by the dismissal of a sonable basis for the determination. It is that,

complaint for its failure to state a claim and only that outer limit of the authority upon which relief can be granted. That issue of the Attorney General that is now before is whether, in the face of the facts alleged us. in the complaint and therefore admitted by At least since 1939, increasing concern the motion to dismiss, the Attorney General has been expressed, in and out of Congress, of the United States has authority to include as to the possible presence in the employ of

the complaining organization in a list of the Government of persons disloyal to it. organizations designated by him as Com- This is reflected in the legislation, reports munist and furnished by him to the Loyalty and executive orders culminating in ExecuReview Board of the United States Civil tive Order No. 9835. That order announced

Service Commission... . the President’s Employees Loyalty Program

For the reasons hereinafter stated, we in the Executive Branch of the Government. conclude that, zf the allegations of the com- It states that both “maximum protection plaints are taken as true (as they must be must be afforded the United States against on the motions to dismiss), the Executive infiltration of disloyal persons into the ranks Order does not authorize the Attorney Gen- of its employees, and equal protection from eral to furnish the Loyalty Review Board unfounded accusations of disloyalty must with a list containing such a designation as be afforded the loyal employees of the Govhe gave to each of these organizations with- ernment: ... .” It provides for the Loyalty out other justification. Under such circum- Review Board and sets up a standard for stances his own admissions render his desig- refusals of and removals from employment nations patently arbitrary because they are on grounds relating to loyalty. It outlines contrary to the alleged and uncontroverted the use to be made in that connection of the facts constituting the entire record before list of organizations to be furnished by the us. The complaining organizations have not Attorney General. The organizations to be

758 DOCUMENTS OF AMERICAN HISTORY designated on that list are not limited to administrative discretion to run riot. ... those having federal employees in their Nothing we have said purports to adjudimembership. They may even exclude such cate the truth of petitioners’ allegations that employees from membership. Accordingly, they are not in fact communistic. We have the impact of the Attorney General’s list is assumed that the designations made by the by no means limited to persons who are Attorney General are arbitrary because we

subject to the Employees Loyalty Pro- are compelled to make that assumption by

gram... . his motions to dismiss the complaints. WheThe Executive Order contains no express ther the complaining organizations are ‘in or implied attempt to confer power on any- fact communistic or whether the Attorney one to act arbitrarily or capriciously—even General possesses information from which assuming a constitutional power to do so. he could reasonably find them to be so must The order includes in the purposes of the await determination by the District Court President’s program not only the protection upon remand. of the United States against disloyal em- For these reasons, we find it necessary to ployees but the “equal protection” of loyal reverse the judgments of the Court of Apemployees against unfounded accusations of peals in the respective cases and to remand disloyalty. The standards stated for refusal each case to the District Court with instrucof and removal from employment require tions to deny the respondents’ motion that that “on all the evidence, reasonable grounds the complaint be dismissed for failure to

[shall] exist for belief that the person in- state a claim upon which relief can be volved is disloyal. . . .” Obviously it would granted. be contrary to the purpose of that order to Reversed and remanded.

place on a list to be disseminated under the ,

Loyalty Program any designation of an or- F RANKFURTER, J, _ CONCUFTIN.. The more

ganization that was patently arbitrary and SUS of law are inescapably entangled in contrary to the uncontroverted material political controversies, especially those that facts. The order contains the express require- touch the passions of the day, the more the ment that each designation of an organiza- Court is under duty to dispose of a controtion by the Attorney General on such a list VEESY within the narrowest confines that inshall be made only after an “appropriate tellectual integrity permits. And so I sym-

.. . determination” as prescribed in Part pathize with the endeavor of my brother

III, § 3. An “appropriate” governmental BURTON to decide these cases on a ground “determination” must be the result of g 25 limited as that which has commended process of reasoning. It cannot be an arbi- itself to him. Unfortunately, I am unable to trary fiat contrary to the known facts. This read the pleadings as he does. Therefore I is inherent in the meaning of “determina- ust face up to larger ISSUES. oe tion.” It is implicit in a government of laws Petitioners are organizations which, on and not of men. Where an act of an official! the face of the record, are engaged solely plainly falls outside of the scope of his in charitable or insurance activities. They authority, he does not make that act legal have been designated ‘‘communist” by the by doing it and then invoking the doctrine Attorney General of the United States. This of administrative construction to cover designation imposes no legal sanction on

it... . these organizations other than that it serves

Since we find that the conduct ascribed as evidence in ridding the Government of to the Attorney General by the complaints persons reasonably suspected of disloyalty. is patently arbitrary, the deference ordinar- It would be blindness, however, not to rec-

ily due administrative construction of an ognize that in the conditions of our time administrative order is not sufficient to bring such designation drastically restricts the his alleged conduct within the authority organizations, if it does not proscribe them. conferred by Executive Order No. 9835. Potential members, contributors or beneThe doctrine of administrative construction ficiaries of listed organizations may well be never has been carried so far as to permit influenced by use of the designation, for in-

Anri-Fascist REFUGEE CoMMITTEE Vv. McGRATH 759 stance, as ground for rejection of applica-~ looked and argument on the meaning and tions for commissions in the armed forces worth of conflicting and cloudy data not or for permits for meetings in the audi- apt to be helpful. But in other situations an toriums of public housing projects. Compare admonition of Mr. Justice Holmes becomes Act of April 3, 1948, § 110(c), 62 Stat. relevant. “One has to remember that when

143, 22 U.S.C. (Supp. III) § 1508(c), 22 one’s interest is keenly excited evidence U.S.C.A. § 1508(c). Yet, designation has gathers from all sides around the magnetic been made without notice, without disclosure point... .” It should be particularly of any reasons justifying it, without oppor- heeded at times of agitation and anxiety, tunity to meet the undisclosed evidence or when fear and suspicion impregnate the suspicion on which designation may have air we breathe. ... been based, and without opportunity to es- Man being what he is cannot safely be tablish affirmatively that the aims and acts trusted with complete immunity from out-

of the organization are innocent. It is ward responsibility in depriving others of claimed that thus to maim or decapitate, on their rights. At least such is the conviction the mere say-so of the Attorney General, underlying our Bill of Rights. That a concluan organization to all outward-seeming en- sion satisfies one’s private conscience does gaged in lawful objectives is so devoid of not attest its reliability. The validity and fundamental fairness as to offend the Due moral authority of a conclusion largely deProcess Clause of the Fifth Amendment. pend on the mode by which it was reached. Fairness of procedure is “due process in Secrecy is not congenial to truth-seeking the primary sense.” Brinkerhoff-Faris Trust and self-righteousness gives too slender an & Savings Co. v Hill, 281 U.S. 673, 681. It is assurance of rightness. No better instrument

ingrained in our national traditions and is has been devised for arriving at truth than designed to maintain them. In a variety of to give a person in jeopardy of serious loss situations the Court has enforced this re- notice of the case against him and opporquirement by checking attempts of execu- tunity to meet it. Nor has a better way been

tives, legislatures, and lower courts to found for generating the feeling, so imdisregard the deep-rooted demands of fair portant to a popular government, that justice

play enshrined in the Constitution... . has been done. The construction placed by this Court The strength and significance of these upon legislation conferring administrative considerations—considerations which go to powers shows consistent respect for a re- the very ethos of the scheme of our society quirement of fair procedure before men are —give a ready answer to the problem before denied or deprived of rights. From a great ys That a hearing has been thought indismass of cases, running the full gamut of pensable in so many other situations, leaving

control over property and liberty, there the cases of denial exceptional, does not of emerges the principle that statutes should be itself prove that it must be found essential

interpreted, if explicit language does not here. But it does place upon the Attorney preclude, so as to observe due process IN General the burden of showing weighty rea-

its basic meaning. . . . son for departing in this instance from a The heart of the matter is that democracy rule so deeply imbedded in history and in

implies respect for the elementary rights the demands of justice. Nothing in the of men, however suspect or unworthy; a Loyalty Order requires him to deny organdemocratic government must therefore prac- izations opportunity to present their case. tice fairness; and fairness can rarely be The Executive Order, defining his powers, obtained by secret, one-sided determination directs only that designation shall be made

of facts decisive of rights. “after appropriate investigation and deterAn opportunity to be heard may not seem mination.” This surely does not preclude an vital when an issue relates only to technical administrative procedure, however informal, questions susceptible of demonstrable proof which would incorporate the essentials of on which evidence is not likely to be over- due process. Nothing has been presented to

760 DOCUMENTS OF AMERICAN HISTORY | the Court to indicate that it will be im- Douctas, J., concurring. The resolution of practical or prejudicial to a concrete public the constitutional question presents one of interest to disclose to organizations the na- the gravest issues of this generation. There |

ture of the case against them and to permit is no doubt in my mind of the need for the them to meet it if they can. Indeed, such Chief Executive and the Congress to take | a contention could hardly be made inas- strong measures against any Fifth Column much as the Loyalty Order itself requires worming its way into government—a Fifth partial disclosure and hearing in proceed- Column that has access to vital information

ings against a Government employee who is and the purpose to paralyze and confuse. | a member of a proscribed organization. The problems of security are real. So are Whether such procedure sufficiently protects the problems of freedom. The paramount

the rights of the employee is a different issue of the age is to reconcile the two... . : story. Such as it is, it affords evidence that The requirements for fair trials under our the wholly summary process for the organ- system of government need no elaboration.

izations is inadequate. And we have con- A party is entitled to know the charge trolling proof that Congress did not think against him; he is also entitled to notice that the Attorney General’s procedure was and opportunity to be heard. Those prinindispensable for the protection of the public ciples were, in my opinion, violated here... .

interest. The McCarran Act, passed under This is a government of Jaws not of men. circumstances certainly not more serene than The powers being used are the powers of when the Loyalty Order was issued, grants government over the reputations and fororganizations a full administrative hearing, tunes of citizens. In situations far less sesubject to judicial review, before they are vere or important than these a party is told required to register as “Communist-action” the nature of the charge against him. Thus

or “Communist-front.” when a defendant is summoned before a We are not here dealing with the grant federal court to answer to a claim for

of Government largess. We have not before damages or to a demand for an injunction us the measured action of Congress, with against him, there must be a “plain statethe pause that is properly engendered when ment of the claim showing that the pleader the validity of legislation is assailed. The is entitled to relief.” If that is necessary for Attorney General is certainly not immune even the most minor claim asserted against from the historic requirements of fairness a defendant, we should require no less when merely because he acts, however conscien- it comes to determinations that may well tiously, in the name of security. Nor does destroy the group against whom the charge he obtain immunity on the ground that of being “subversive” is directed. When the designation is not an “adjudication” or a Government becomes the moving party and “regulation” in the conventional use of those levels its great powers against the citizen,

terms. Due process is not confined in its it should be held to the same standards of scope to the particular forms in which fair dealing as we prescribe for other legal rights have heretofore been found to have contests. To let the Government adopt such been curtailed for want of procedural fair- lesser ones as suits the convenience of its ness. Due process is perhaps the most ma-_ officers is to start down the totalitarian

jestic concept in our whole constitutional path... . system. While it contains the garnered wisdom of the past in assuring fundamental

justice, it is also a living principle not con- Chief Justice Vinson, Justices Reed and

fined to past instances... . Minton, dissenting.

THE RECALL OF GENERAL DOUGLAS MACARTHUR 761 599. THE RECALL OF GENERAL DOUGLAS MacARTHUR April 11, 1951 (Department of State Bulletin, April 16, 1951) The question of military strategy in the Korean States cannot—and will not—sit idly by and war involved the over-all foreign policy of the await foreign conquest. The only question United States. In October, 1950, the Chinese js: When is the best time to meet the threat Communist government sent troops to aid the and how? faltering North Koreans. To meet this situation, The best time to meet the threat is in the Nations troops in Korea, General Douglas Mac- eginning. It is easier to put out a fire in Arthur, proposed the use of air and naval forces the beginning when it is small than after to extend the war to Chinese territory. Presi- it has become a roaring blaze. dent Truman rejected this proposal and ordered And the best way to meet the threat of MacArthur to conduct a limited war on the aggression is for the peace-loving nations to Korean peninsula. When MacArthur continued act together. If they don’t act together, they to press for more extensive military operations are likely to be picked off, one by one... .

the commander of United States and United oO , : . ;

against the Chinese, President Truman relieved This is the bas} h ‘oined him of his command. Truman explained the. IS 1s me ASIC Feason w y we joine reasons for his action in this address to the © creating the United Nations. And since nation. See H. Truman, Memoirs, Vol. 11; the end of World War II we have been

Council on Foreign Relations, The United States putting that lesson into practice—we have in World Affairs, 1950-1953; R. H. Rovere and been working with other free nations to A. M. Schlesinger, Jr. The General and the check the aggressive designs of the Soviet President ; C. Whitney, MacArthur: His Rendez- Union before they can result in a third VOUS with History; C. A. Willoughby and J. world war. That is what we did in Greece, when that nation was threatened by the aggression of

Chamberlain, MacArthur, 1944-1951. , La

international communism.

The attack against Greece could have led

I want to talk plainly to you tonight to general war. But this country came to the about what we are doing in Korea and id of Greece. The United Nations supported

about our policy in the Far East. Greek resistance. With our help, the deterIn the simplest terms, what we are doing ination and efforts of the Greek people in Korea is this: We are trying to prevent defeated the attack on the spot.

a third world war. Another big Communist threat to peace

I think most people in this country rec- Was the Berlin blockade. That too could ognized that fact last June. And they warmly have led to war. But again it was settled supported the decision of the Government because free men would not back down in to help the Republic of Korea against the 4M emergency... .

Communist aggressors. Now, many persons, The question we have had to face is even some who applauded our decision to whether the Communist plan of conquest defend Korea, have forgotten the basic rea- can be stopped without general war. Our

son for our action. Government and other countries associated It is right for us to be in Korea. It was With us in the United Nations believe that

right last June. It is right today. the best chance of stopping it without gen-

I want to remind you why this is true. eral war is to meet the attack in Korea and The Communists in the Kremlin are en- defeat it there. gaged in a monstrous conspiracy to stamp That is what we have been doing. It is a out freedom all over the world. If they difficult and bitter task. were to succeed, the United States would But so far it has been successful. be numbered among their principal victims. So far, we have prevented World War It must be clear to everyone that the United _ III.

762 DOCUMENTS OF AMERICAN HISTORY So far, by fighting a limited war in Ko- they cannot defeat us in Korea, if they rea, we have prevented aggression from realize it would be foolhardy to widen the succeeding and bringing on a general war. hostilities beyond Korea, then they may And the ability of the whole free world to recognize the folly of continuing their agresist Communist aggression has been greatly gression. A peaceful settlement may then

improved. be possible. The door is always open.

We have taught the enemy a lesson. He Then we may achieve a settlement in Kohas found out that aggression is not cheap rea which will not compromise the principles or easy. Moreover, men all over the world and purposes of the United Nations.

who want to remain free have been given I have thought long and hard about this new courage and new hope. They know now’ question of extending the war in Asia. I that the champions of freedom can stand have discussed it many times with the ablest up and fight and that they will stand up and military advisers in the country. I believe

fight. with all my heart that the course we are Our resolute stand in Korea is helping the following is the best course.

forces of freedom now fighting in Indo- I believe that we must try to limit war china and other countries in that part of to Korea for these vital reasons: to make the world. It has already slowed down the — sure that the precious lives of our fighting

timetable of conquest. .. . men are not wasted; to see that the security

We do not want to see the conflict in of our country and the free world is not Korea extended. We are trying to prevent needlessly jeopardized; and to prevent a a world war—not to start one. The best third world war. way to do this is to make it plain that we A number of events have made it evident and the other free countries will continue that General MacArthur did not agree with

to resist the attack. that policy. I have therefore considered it But you may ask: Why can’t we take essential to relieve General MacArthur so other steps to punish the aggressor? Why that there would be no doubt or confusion

don’t we bomb Manchuria and China itself? as to the real purpose and aim of our policy.

Why don’t we assist Chinese Nationalist It was with the deepest personal regret troops to land on the mainland of China? that I found myself compelled to take this If we were to do these things we would action. General MacArthur is one of our be running a very grave risk of starting a greatest military commanders. But the cause general war. If that were to happen, we of world peace is more important than any would have brought about the exact situa- individual.

tion we are trying to prevent. The change in commands in the Far East If we were to do these things, we would means no change whatever in.the policy of become entangled in a vast conflict on the the United States. We will carry on the continent of Asia and our task would be- fight in Korea with vigor and determination come immeasurably more difficult all over in an effort to bring the war to a speedy

the world. and successful conclusion.

What would suit the ambitions of the The new commander, Lt. Gen. Matthew Kremlin better than for our military forces Ridgway, has already demonstrated that he to be committed to a full-scale war with has the great qualities of military leadership

Red China?.. . needed for this task.

The course we have been following is the We are ready, at any time, to negotiate one best calculated to avoid an all-out war. for a restoration of peace in the area. But It is the course consistent with our obliga- We will not engage in appeasement. We are tion to do all we can to maintain interna- only interested in real peace. tional peace and security. Our experience in Real peace can be achieved through a Greece and Berlin shows that it is the most settlement based on the following factors: effective course of action we can follow... . One: the fighting must stop. If the Communist authorities realize that Two: concrete steps must be taken to

MacARTHUR’S SPEECH TO CONGRESS 763 insure that the fighting will not break out In the hard fighting in Korea, we are

again. proving that collective action among nations Three: there must be an end to the ag- is not only a high principle but a workable gression. means of resisting aggression. Defeat of A settlement founded upon these elements aggression in Korea may be the turning point

would open the way for the unification of in the world’s search for a practical way of Korea and the withdrawal of all foreign achieving peace and security.

forces. The struggle of the United Nations in

In the meantime, I want to be clear Korea is a struggle for peace. about our military objective. We are fighting The free nations have united their to resist an outrageous aggression in Korea. strength in an effort to prevent a third We are trying to keep the Korean conflict world war.

from spreading to other areas. But at the That war can come if the Communist same time we must conduct our military rulers want it to come. But this Nation and activities so as to insure the security of our its allies will not be responsible for its forces. This is essential if they are to con- coming. tinue the fight until the enemy abandons its We do not want to widen the conflict. ruthless attempt to destroy the Republic We will use every effort to prevent that

of Korea. disaster. And in so doing we know that we That is our military objective—to repel are following the great principles of peace,

attack and to restore peace. freedom, and justice.

600. MacARTHUR’S SPEECH TO CONGRESS April 19, 1951 (82nd Congress, Ist Session, House Doc. No. 36) The dismissal of General MacArthur precipi- ... The Communist threat is a global one. tated a major debate over American policy in Its successful advance in one sector threatbate: fist, was President ‘Truman right in re, tS. ‘Re destruction of every other sector, moving General MacArthur from his command; You cannot appease or otherwise surrender second, was the strategy of limited war a valid to ~omnmunism in Asia without simultaneone in the Korean conflict. General MacArthur ously undermining our efforts to halt its presented his view of the situation in this ad- advance in Europe. . . . dress to a joint session of Congress. Thereafter, - - - While I was not consulted prior to the the Senate committees on Armed Services and President’s decision to intervene in support Foreign Relations investigated | the recall of of the Republic of Korea, that decision, MacArthur and the military situation in the from a military standpoint, proved a sound

Far East and unanimously concluded that the one, as we hurled back President was within his constitutional rights i .the; invad cr anq

a bars decimated his forces. Ourwas victor asserting the dominance of civil over military wee victory compower. They failed to reach any agreement on plete and our objectives within reach when the wisdom of the policy of limited war. This Red China intervened with numerically su-

issue remained a controversial one and was Perior ground forces. This created a new heatedly debated in the presidential campaign war and an entirely new situation—a situaof 1952. But the Truman policy of self-restraint tion not contemplated when our forces were

was eventually adopted by the Eisenhower ad- committed against the North Korean inministration. See R. H. Rovere and A. M. Schles- vaders—a situation which called for new

Inger, Jr., The General and the President; C. decisions in the dipl ; h .

Whitney, MacArthur: His Rendezvous with woe ; GIP omatic SP ere to permit

History; U. S. Senate Committee on Armed the realistic adjustment of military strategy. Services and Committee on Foreign Relations, UCh decisions have not been forthcoming.

82nd Congress, Joint Statement ... on Relief While no man in his right mind would

of General MacArthur and on American Policy advocate sending our ground forces into

in Far East. continental China and such was never given

764 DOCUMENTS OF AMERICAN HISTORY a thought, the new situation did urgently cluding our own Joint Chiefs of Staff. demand a drastic revision of strategic plan- I called for reinforcements, but was inning if our political aim was to defeat this formed that reinforcements were not avail-

new enemy as we had defeated the old. able. I made clear that if not permitted to Apart from the military need as I saw’ destroy the enemy buildup bases north of it to neutralize the sanctuary protection the Yalu; if not permitted to utilize the given the enemy north of the Yalu, I felt friendly Chinese force of some 600,000 that military necessity in the conduct of the men on Formosa; if not permitted to

war made mandatory: blockade the China coast to prevent the 1. The intensification of our economic Chinese Reds from getting succor from withblockade against China; out; and if there were to be no hope of 2. The imposition of a naval blockade major reinforcements, the position of the

against the China coast; command from the military standpoint for-

3. Removal of restrictions on air recon- bade victory. We could hold in Korea by naissance of China’s coastal areas of Man- constant maneuver and at an approximate

churia; area where our supply line advantages were 4. Removal of restrictions on the forces in balance with the supply line disadvantages of the Republic of China on Formosa with of the enemy, but we could hope at best for logistical support to contribute to their only an indecisive campaign, with its terrible effective operations against the common and constant attrition upon our forces if the

enemy. enemy utilized his full military potential. For entertaining these views, all profes- I have constantly called for new political

sionally designed to support our forces com- decisions essential to a solution. Efforts have

mitted to Korea and bring hostilities to an been made to distort my position. It has end with the least possible delay and at a been said that I was in effect a warmonger. saving of countless American and Allied Nothing could be further from the truth. I lives, I have been severely criticized in lay know war as few other men now living circles, principally abroad, despite my un- know it, and nothing to me is more revoltderstanding that from a military standpoint ing. I have long advocated its complete the above views have been fully shared in abolition as its very destructiveness on both past by practically every military leader friend and foe has rendered it useless as a concerned with the Korean campaign, in- means of settling international disputes. 601. EUROPEAN RECOVERY PROGRAM December 30, 1951 (Department of State Bulletin, Vol. XXVI, p. 43) The Marshall Plan for aid to Europe was given gram; J. A. Krout, ed., “American Foreign Aid practical effect by the Economic Cooperation Program,” Proc. of Amer. Academy of Pol. Sci.,

Act of 1948. This act appropriated money for Vol. 23, p. 345; J. K. Galbraith, “European the rehabilitation of Europe and created an Recovery: The Longer View,” 12 Rev. of PoliEconomic Cooperation Administration to spend tics, 165; J. H. Williams, “End of the Marshall it. Additional legislation provided for aid to Plan,” 30 Foreign Affairs, 593. other parts of the world. Under the authority thus granted, the ECA gave assistance to countries throughout the world including Commu-

nist Yugoslavia after the Tito-Stalin break of The recovery of Europe from the chaos 1948. The heart of the American program of o¢ 1947, when it was hungry, cold, disoreconomic aid remained the effort to secure the derly, and frightened, can be measured in port of December 30, 1951, summarized the cold statistics: Industrial production, 64 achievements of the ECA in Western Europe. Percent above 1947 and 41 percent above

recovery of Western Europe. The terminal re- a

See S. E. Harris, The European Recovery Pro- prewar, steel production, nearly doubled in

EUROPEAN RECOVERY PROGRAM 765 less than 4 years; coal production, slightly electric, gas, and power facilities, an imbelow prewar but still 27 percent higher provement that is helping to make possible than in 1947; aluminum, copper, and ce- Europe’s rearmament program today. ment production, up respectively 69, 31, and Similarly vital | to Europe’s defense has 90 percent from 1947; food production, 24 been the rehabilitation of the continent’s percent above 1947 and 9 percent above run-down and war-smashed railway network,

prewar levels. with approved projects for use of counterThe Economic Cooperation Administration part funds totaling more than the equivalent

has expended nearly 12 billion dollars in of half a billion dollars. Similarly, countergrants and loans in carrying out the Eu- part projects for the reconstruction of merropean Recovery Program—equal to nearly chant fleets, port and shipping faces 80 dollars for every man, woman, and child and inland waterways have been comp ete in the United States. To this, the countries OF are In the Process of completion in the of Europe have added the equivalent of Marshall Plan countries. Airports, too, have another 9 billion dollars in its own curren- een built or improved with ECA-generated

i j t-aid dol- ocal currencies.

Fe erty 'S. funds, about 5. billion ‘Through such double-barreled use of dol dollars have been used to purchase industrial lar aid and local funds, Marshall Plan nacommodities, mostly from the United States, tions, In less than 4 years, have rebuilt and another 5.2 billion dollars for the pur- their economies to a point that could well chase of food and other agricultural com- persuade the Kremlin that the Europe which modities such as cotton. Over 800 million ooked like such easy pickings In 1946 and dollars has alone gone into the cost of ocean 1947 is indeed a formidable bastion today. freight for goods sent to Europe. The U. S. Steel production, for example, so necessary contribution to the setting up of the EPU to a strong peace or war economy, has risen was 350 million dollars and another 100 mil- from less than 31 million tons In 1947 to lion dollars has been used since then to help €arly 60 million tons in 1951. Soviet Russia

the payments union over rough spots. and her satellites combined have a steel In their turn, the Marshall Plan coun- production rate of about 35 million tons. tries in the past 3 years completed or are | The average volume of crude oil refined pushing to completion a total of 27 major Europe in prewar years was 12 million projects for the increase of power and 32 tons annually. In 1950-51 the volume of major projects for modernizing and ex- refined products reached 46.8 million tons, panding the production of iron and steel. 0 nearly four umes prewar. Major petroleum refining works number 11 In 1947, Europe's average monthly elecand the volume of refining has quadrupled trical production was 13% million kilowat over prewar. Other industrial projects cost- hours. In mid-1951 the wheels of Europe's ing the equivalent of a million dollars or industry were being turned with 20% million more bring the total of such projects to 132, kilowatt hours per month. From a monthly

costing the equivalent of over two billion cement production average of less than 2 dollars. About half a billion dollars of the m™ullion metric tons in 1947, Europe’s producU. S. commodity and technical aid has gone tion rose to 4 million tons monthly during

into these projects. the first half of 1951.

Into other major recovery projects have Cotton-yarn production in free Europe gone also the equivalent of billions of dollars has risen from a monthly average of 82,000 of the counterpart currencies generated in metric tons in 1947 to 125,000 tons in 1951, the Marshall Plan countries to match Amer- Wool yarn production is up from 33,000 tons ican dollar aid. Such counterpart funds are monthly in 1947 to 44,000 tons in 1951. used by the respective countries for recovery One of the most dramatic improvements, projects approved by the ‘ECA. Biggest sin- and one closely tied to Europe’s defense

gle use—equivalent to more than a billion capabilities, is in the production of motor dollars—has been for the improvement of vehicles. Monthly production, running at the

766 DOCUMENTS OF AMERICAN HISTORY rate of 54,000 vehicles in 1947, is up to is a 15 percent increase over prewar levels.

145,000 vehicles in 1951. But Europe by no means considers its

Agricultural production is up 9 percent job finished. Member countries of the

over prewar and 24 percent over 1947-48, OEEC recently issued a manifesto declaring but at the same time there are many more _ their intention to work for an expansion of mouths to feed (population is up from 250 total production in Western Europe by 25 million in 1938 to over 275 million in 1951) percent over the next 5 years. and Europe is not yet self-sufficient in food With her industrial plant rebuilt to better

production. than prewar years, Europe’s hope for meet-

Overall, Europe’s gross national product ing or surpassing this goal must rest on ——the total sum of its production of goods improved production methods and greater and services—rose by nearly 25 percent in productivity—increased output of goods the less than 4 years of Marshall Plan aid with the same amount of manpower, mato over 125 billion dollars in 1950. This chines, and management. 602. MUTUAL SECURITY ACT OF 1951 October 10, 1951 (Public Law 165, 82nd Congress) The Truman Doctrine and the Marshall Plan security and to promote the foreign policy committed the United States to large-scale pro- of the United States by authorizing miligrams of military and economic aid to friendly tary, economic, and technical assistance to nations. The Military Defense Assistance Act friendly countries to strengthen the mutual nomic Cooperation Acts of 1948 and 1949 and security and individual and collective dethe Point Four program of 1950 authorized eco- fenses of the free world, to develop their nomic and technical assistance to free nations resources in the interest of their security throughout the world. See Docs. No. 572, 575, and independence and the national interest 591, 601. At the end of 1951, Congress assigned of the United States and to facilitate the the function of administering both the economic effective participation of those countries in

of 1949 authorized military aid and the Eco- . qe .

and eed - ehsecurl dirainiministration. .° 4 a The cin the United the utual e sig. Nations system for collective

nificance of the Mutual Security Act of 1951 security, The purposes of the Mutual Dewas twofold: first, it provided for the co-or- fense Assistance Act of 1949, as amended dination of the military and economic aid pro- (22 U. S. C. 1571-1604), the Economic grams; second, it marked a new emphasis of Cooperation Act of 1948, as amended, and American policy on military, rather than eco- the Act for International Development (22 nomic aid. See D. Middleton, Defense of West- U.S.C. 1557) shall hereafter be deemed to ern Europe; H. L. Marx, ed., Defense and jnclude this purpose.

National Security; U. S. President, Report to

vongress on the Mutual Security Program, TITLE I--EUROPE Sec. 101. (a) In order to support the freedom of Europe through assistance which

will further the carrying out of the plans for defense of the North Atlantic area,

AN ACT while at the same time maintaining the ecoTo maintain the security and promote the for- nomic stability of the countries of the area eign policy and provide for the general so that they may meet their responsibilities welfare of the United States by furnishing for defense, and to further encourage the assistance to friendly nations in the interest 4 -onomic unification and the political federa-

of international peace and security. tion of Europe, there are hereby authorized SEC. 2. The Congress declares it to be to be appropriated to the President for the the purpose of this Act to maintain the fiscal year 1952 for carrying out the pro-

MuTuat Security Act oF 1951 767 visions and accomplishing the policies and purpose of this Act, he may provide as-

purpose of this Act— sistance, pursuant to the provisions of the

(1) not to exceed $5,028,000,000 for Mutual Defense Assistance Act of 1949, as assistance pursuant to the provisions of the amended, to any country of the Near East Mutual Defense Assistance Act of 1949, area (other than those covered by section as amended, for countries which are parties 201) and. may utilize not to exceed 10 per to the North Atlantic Treaty and for any centum of the amount made available (excountry of Europe (other than a country cluding balances of prior appropriations con-

covered by another title of this Act), tinued available) pursuant to section 201 of which the President determines to be of this Act: Provided, That any such assistance direct importance to the defense of the may be furnished only upon determination

North Atlantic area and whose increased by the President that (1) the strategic

ability to defend itself the President de- location of the recipient country makes it of termines is important to the preservation direct importance to the defense of the Near

of the peace and security of the North East area, (2) such assistance is of critical Atlantic area and to the security of the importance to the defense of the free na-

United States... . tions, and (3) the immediately increased (2) not to exceed $1,022,000,000 for as- ability of the recipient country to defend sistance pursuant to the provisions of the itself is important to the preservation of Economic Cooperation Act of 1948, as the peace and security of the area and to amended (including assistance to further the security of the United States. European military production), for any Sec. 203. In order to further the purpose country of Europe covered by paragraph of this Act in Africa and the Near East, (1) of this subsection and for any other there are hereby authorized to be approcountry covered by section 103 (a) of the priated to the President, for the fiscal year said Economic Cooperation Act of 1948, 1952 not to exceed $160,000,000 for eco-

as amended. . . . nomic and technical assistance in Africa and TITLE II--NEAR EAST AND AFRICA the Near East in areas other than those

covered by section 103 (a) of the Economic

Sec. 201. In order to further the purpose Cooperation Act of 1948, as amended. .. .

of this Act by continuing to provide military

assistance to Greece, Turkey, and Iran, TITLE II——ASIA AND PACIFIC

there are hereby authorized to be appro- Sec. 301. In order to carry out in the priated to the President for the fiscal year general area of China (including the Re1952, not to exceed $396,250,000 for fur- public of the Philippines and the Republic nishing assistance to Greece and Turkey of Korea) the provisions of subsection (a) pursuant to the provisions of the Act of of section 303 of the Mutual Defense AsMay 22, 1947, as amended, and for furnishing sistance Act of 1949, as amended, there are assistance to Iran pursuant to the provisions hereby authorized to be appropriated to the of the Mutual Defense Assistance Act of 1949, President for the fiscal year 1952, not to exas amended (22 U.S. C. 1571-1604). In addi- ceed $535,250,000. . . .

tion, unexpended balances of appropriations Sec. 302. (a) In order to further the purheretofore made for assistance to Greece and pose of this Act through the strengthening Turkey, available for the fiscal year 1951, of the area covered in section 301 of this pursuant to the Act of May 22, 1947, as Act (but not including the Republic of Koamended, and for assistance to Iran pursuant rea), there are hereby authorized to be to the Mutual Defense Assistance Act of appropriated to the President, for the fiscal 1949, as amended, are hereby authorized to year 1952, not to exceed $237,500,000 for be continued available through June 30, economic and technical assistance in those 1952, and to be consolidated with the appro- portions of such area which the President

priation authorized by this section. deems to be not under Communist control. Sec. 202. Whenever the President deter- Funds appropriated pursuant to authority of mines that such action is essential for the this section shall be available under the ap-

768 DOCUMENTS OF AMERICAN HISTORY plicable provisions of the Economic Coopera- Administrator, United States Special Repre-

tion Act of 1948, as amended, and of the Act sentative in Europe, and Deputy Special

for International Development... . Representative are hereby abolished.

(b) To assist in carrying out the purpose

TITLE IV—-AMERICAN REPUBLICS of this Act— . | . SEC. 401. In order to further the purpose ts poincinal pe ie a of this Act through the furnishing of military ernment, a Mutual Security Agency, here-

assistance to the other American Republics, naft ferred t the A hich thee ate ereby authorized to be appro. yay Temed to as the. Agency, whi

priated to the President, for the fiscal year tual Security: an : 1952, not to exceed $38,150,000 for carrying (2) there ‘shall be transferred to the out the purposes of this section under the Director the powers, functions. and reprovisions of the Mutual Defense Assistance sponsibilities con terre d upon the Adminis-

Act of 1949, as amended. . . . trator for Economic Cooperation by the Economic Cooperation Act of 1948, as TITLE V—ORGANIZATION AND GENERAL amended, and by any other law, but no

PROVISIONS such powers, functions, and _ responsibil-

Sec. 501. (a) In order that the programs ities shall be exercised after June 30, of military, economic, and technical assis- 1952, except as provided in subsection

tance authorized by this Act may be ad- (c) of this section. ministered as parts of a unified program in (c) Not later than April 1, 1952, the

accordance with the intent of Congress and P resident shall inform the Committee on to fix responsibility for the coordination and Foreign Relations of the Senate and the

supervision of these programs in a single Committee on Foreign Affairs of the

person, the President is authorized to appoint House of Representatives which of the in the Executive Office of the President a powers, functions, and_ responsibilities Director for Mutual Security. The Director, transferred to the Director by subsection

on behalf of the President and subject to (b) (2) are found by the President to be his direction, shall have primary responsibil- necessary to enable the Director after

ity for— June 30, 1952, to carry out the duties (1) continuous supervision and general conferred upon him by section 503. The direction of the assistance programs under termination provisions of section 122 of

this Act to the end that such programs the Economic Cooperation Act of 1948, shall be (A) effectively integrated both as amended, shall come into effect on June at home and abroad, and (B) administered 30, 1952, and none of the powers, funcso as to assure that the defensive strength tions, and responsibilities conferred by of the free nations of the world shall be that Act shall be exercised after that date, built as quickly as possible on the basis except those powers, functions, and reof continuous and effective self-help and sponsibilities found necessary to enable

mutual aid: the Director to carry out the duties con-

(2) preparation and presentation to the ferred on him by section 503 of this Act, Congress of such programs of foreign which POwerIs, functions, and responsibilmilitary, economic, and technical assis- ities unless otherwise provided by law

tance as may be required in the interest shall continue in effect until June 30,

of the security of the United States; 1954... .

(3) preparation for the President of the SEC. 503. After June 30, 1952, the Direcreport to the Congress required by section tor, on behalf of the President and subject

518 of this Act. ... to his direction, shall, in consultation with Sec. 502. (a) The Economic Cooperation the Secretaries of State and Defense, conAdministration and the offices of Adminis- tinue to have primary responsibility for—

trator for Economic Cooperation, Deputy (a) the development and administra-

YVoUNGSTOWN SHEET & TUBE CoO. V. SAWYER 769 tion of programs of assistance designed to incentives for, a steadily increased particisustain and increase military effort, in- pation of free private enterprise in develop-

cluding production, construction, equip- ing the resources of foreign countries

ment and matériel in each country or in consistent with the policies of this Act, (2) groups of countries which receive United to the extent that it is feasible and does

States military assistance; not interfere with the achievement of the (b) the provision of such equipment, purposes set forth in this Act, to discourage

materials, commodities, services, financial, the cartel and monopolistic business practices or other assistance as he finds to be neces- prevailing in certain countries receiving aid

sary for carrying out mutual defense pro- under this Act which result in restricting

grams; and production and increasing prices, and to en(c) the provision of limited economic courage where suitable competition and proassistance to foreign nations for which the ductivity, and (3) to encourage where suitUnited States has responsibility as a result able the development and strengthening of

of participation in joint control arrange- the free labor union movements as the

ments when the President finds that the collective bargaining agencies of labor within

provision of such economic assistance is such countries... . in the interest of the security of the Sec. 529. If the President determines that

United States... . the furnishing of assistance to any nation— Sec. 513. Whenever the President deter- (a) is no longer consistent with the

mines it to be necessary for the purpose of national interest or security of the United this Act, not to exceed 10 per centum of the States or the policies and purpose of this funds made available under any title of this Act; or Act may be transferred to and consolidated (b) would contravene a decision of the with funds made available under any other Security Council of the United Nations;

title of this Act in order to furnish, to a or different area, assistance of the kind for (c) would be inconsistent with the

which such funds were available before principle that members of the United Natransfer. Whenever the President makes any tions should refrain from giving assistance

such determination, he shall forthwith no- to any nation against which the Security tify the Committee on Foreign Relations of Council or the General Assembly has recthe Senate and the Committee on Foreign ommended measures in case of a threat Affairs of the House of Representatives. In to, or breach of, the peace, or act of agthe case of the transfer of funds available gression, for military purposes, he shall also forthwith he shall terminate all or part of any assisnotify the Committees on Armed Services tance furnished pursuant to this Act. The of the Senate and House of Representatives. function conferred herein shall be in addiSec. 516. It is hereby declared to be the tion to all other functions heretofore con-

policy of the Congress that this Act shall ferred with respect to the termination of be administered in such a way as (1) to military, economic, or technical assiseliminate the barriers to, and provide the tance.... 603. YOUNGSTOWN SHEET & TUBE CO. v. SAWYER 343 U. 8. 579 1952

This decision is one of the few instances in our bilization Board failed, and the steelworkers’

history where the Court has restrained the union called a strike for April 4, 1952. On the executive power. In December, 1951, in the ground that a strike would jeopardize national midst of the Korean War, steelworkers gave security, President Truman directed Secretary of notice of intent to strike. Intervention by the Commerce Sawyer to take over and operate the Federal Mediation Service and the Wage Sta- affected steel mills. One of the mills challenged

770 DOCUMENTS OF AMERICAN HIstToRY the constitutionality of this order and asked for he did here. Nor is there any act of Congress

an injunction against the Secretary of Com- to which our attention has been directed merce ; the District Court granted the injunc- from which such a power can fairly be imtion; the Court of Appeals stayed the injunc- plied. Indeed, we do not understand the

tion, and the case came on appeal to the . Supreme Court. See H. Truman, Memoirs, Vol. Government to rely on statutory authoriza-

II; C. Rossiter, Supreme Court and the Com- tion for this seizure. There are two statutes mander in Chief; C. Rossiter, Constitutional which do authorize the President to take Dictatorship; E. S. Corwin, The President, both personal and real property under cerOffice and Powers; B. M. Rich, The Presidents tain conditions. However, the Government and Civil Disorder; Grover Cleveland, The Gov- admits that these conditions were not met ernment in the Chicago Strike of 1894; . Ber- and that the President’s order was not rooted

Cae ee ees ae ae cposidents © °. in either of the statutes. The Government Rev. 53. Appendix I to this. case provides a refers to the seizure provisions of one of “synoptic analysis of Legislation authorizing these statutes (Sec. 201 (b) of the Defense

seizure of Industrial Property.” Production Act) as “much too cumbersome, involved, and time-consuming for the crisis which was at hand.”

Moreover, the use of the seizure technique to solve labor disputes in order to Brack, J. We are asked to decide whether Prevent work stoppages was not only unthe President was acting within his con- authorized by any congressional enactment; stitutional power when he issued an order Prior to this controversy, Congress had redirecting the Secretary of Commerce to take fused to adopt that method of settling labor

possession of and operate most of the Na- disputes. When the Taft-Hartley Act was tion’s steel mills. The mill owners argue that Under consideration in 1947, Congress rethe President’s order amounts to lawmaking, jected an amendment which would have aua legislative function which the Constitution thorized such governmental seizures In Cases has expressly confided to the Congress and of emergency. Apparently it was thought

not to the President. The Government’s that the technique of seizure, like that of

position is that the order was made on find- compulsory arbitration, would interfere with ings of the President that his action was the process of collective bargaining. Consenecessary to avert a national catastrophe quently, the plan adopted in that Act did not which would inevitably result from a stop- Provide for seizure under any circumstances. page of steel production, and that in meeting Instead, the plan sought to bring about setthis grave emergency the President was act- tlements by use of the customary devices of ing within the aggregate of his constitutional | ™ediation, conciliation, investigation by powers as the Nation’s Chief Executive and boards of inquiry, and public reports. In the Commander in Chief of the Armed some instances temporary Injunctions were

Forces of the United States... . authorized to provide cooling-off periods. All Two crucial issues have developed: First. this failing, unions were left free to strike

Should final determination of the constitu- after a secret vote by employees as to

tional validity of the President’s order be Whether they wished to accept their employmade in this case which has proceeded no er’ final settlement offer.

further than the preliminary injunction It is clear that if the President had austage? Second. If so, is the seizure order thority to issue the order he did, it must within the constitutional power of the Presi- be found in some provisions of the Con-

dent? ... stitution. And it is not claimed that express

The President’s power, if any, to issue the constitutional language grants this power to order must stem either from an act of Con- the President. The contention is that presigress or from the Constitution itself. There dential power should be implied from the is no statute that expressly authorizes the aggregate of his powers under the ConstituPresident to take possession of property as tion. Particular reliance is placed on provi-

YOUNGSTOWN SHEET & TUBE Co. V. SAWYER 771 sions in Article II which say that “the execu- manner prescribed by the President. The

tive Power shall be vested in a Presi- preamble of the order itself, like that of dent... ; that “he shall take Care that many statutes, sets out reasons why the the Laws be faithfully executed”; and that President believes certain policies should be

he “shall be Commander in Chief of the adopted, proclaims that these policies as Army and Navy of the United States.” rules of conduct to be followed, and again, The order cannot properly be sustained like a statute, authorizes a government offas an exercise of the President’s military cial to promulgate additional rules and regupower as Commander in Chief of the Armed _ lations consistent with the policy proclaimed

Forces. The Government attempts to do so. and needed to carry that policy into execuby citing a number of cases upholding broad tion. The power of Congress to adopt such powers in military commanders engaged in _ public policies as those proclaimed by the day-to-day fighting in a theater of war. Such order is beyond question. It can authorize

cases need not concern us here. Even the taking of private property for public

though “theater of war” be an expanding use. It can make laws regulating the relaconcept, we cannot with faithfulness to our tionships between employers and employees,

constitutional system hold that the Com- prescribing rules designed to settle labor mander in Chief of the Armed Forces has disputes, and fixing wages and working conthe ultimate power as such to take posses- ditions in certain fields of our economy. The sion of private property in order to keep la- Constitution did not subject this law-making bor disputes from stopping production. This power of Congress to presidential or military is a job for the Nation’s lawmakers, not for supervision or control.

its military authorities. It is said that other Presidents without

Nor can the seizure order be sustained congressional authority have taken possesbecause of the several constitutional pro- sion of private business enterprises in order visions that grant executive power to the [0 settle labor disputes. But even if this be

President. In the framework of our Con- true, Congress has not thereby lost its

stitution, the President’s power to see that exclusive constitutional authority to make the laws are faithfully executed refutes the laws necessary and proper to carry out the idea that he is to be a lawmaker. The Con- powers vested by the Constitution “in the stitution limits his functions in the lawmak- Government of the United States, or in any ing process to the recommending of laws he Department or Officer thereof.”

thinks wise and the vetoing of laws he The Founders of this Nation entrusted

thinks bad. And the Constitution is neither the law making power to the Congress alone silent nor equivocal about who shall make in both good and bad times. It would do no laws which the President is to execute. The good to recall the historical events, the fears

first section of the first article says that of power and the hopes for freedom that lay “All legislative Powers herein granted shall behind their choice. Such a review would

be vested in a Congress of the United but confirm our holding that this seizure States. ...” After granting many powers order cannot stand. to the Congress, Article I goes on to pro- The Judgment of the District Court is afvide that Congress may “make all Laws firmed. which shall be necessary and proper for Vinson, C. J., dissenting: . . . In passing carrying into Execution the foregoing Pow- upon the question of Presidential powers ers and all other Powers vested by this in this case, we must first consider the conConstitution in the Government of the text in which those powers were exercised. United States, or in any Department or Those who suggest that this is a case in-

Officer thereof. volving extraordinary powers should be The President's order does not direct that mindful that these are extraordinary times. a congressional policy be executed in a A world not yet recovered from the devasmanner prescribed by Congress—it directs tation of World War II has been forced to that a presidential policy be executed in a face the threat of another and more terri-

772 DOCUMENTS OF AMERICAN HISTORY fying global conflict... . For almost two moved for a preliminary injunction before full years, our armed forces have been answer or hearing. Defendant opposed the fighting in Korea, suffering casualties of motion, filing uncontroverted affidavits of over 108,000 men. Hostilities have not Government officials describing the facts abated. The “determination of the United underlying the President’s order. Nations to continue its action in Korea to Secretary of Defense Lovett swore that meet the aggression” has been reaffirmed. ‘a work stoppage in the steel industry will Congressional support of the action in Ko- result immediately in serious curtailment of rea has been manifested by provisions for production of essential weapons and muniincreased military manpower and equipment tions of all kinds.” He illustrated by showand for economic stabilization, as herein- ing that 84% of the national production of

after described. ... certain alloy steel is currently used for proEven this brief review of our respon- duction of military-end items and that 35% sibilities in the world community discloses of total production of another form of steel the enormity of our undertaking. Success 80€S into ammunition, 80% of such ammuof these measures may, as has often been ition now going to Korea. The Secretary observed, dramatically influence the lives of of Defense stated that: “We are holding the many generations of the world’s peoples yet line (in Korea) with ammunition and not unborn. Alert to’ our responsibilities, which With the lives of our troops.”

coincide with our own self preservation Affdavits of the Chairman of the Atomic through mutual security, Congress has Energy Commission, the Secretary of the enacted a large body of implementing legis- Interior, defendant as Secretary of Comlation... . merce, and the Administrators of the De-

Congress recognized the impact of these fense Production Administration, the Nadefense programs upon the economy. Fol- tional Production Authority, the General lowing the attack in Korea, the President services Administration and the Defense asked for authority to requisition property Transport Administration were also hled in and to allocate and fix priorities for scarce the District Court. These affidavits disclose goods. In the Defense Production Act of 42 enormous demand for steel in such vital 1950, Congress granted the powers requested defense programs as the expansion of faand, im addition, granted power to stabilize cilities in atomic energy, P etroleum, powe Y prices and wages and to provide for settle- transportation and industrial production, inment of labor disputes arising in the defense cluding steel production. Those charged with

program. . . . administering allocations and priorities swore | The President has the duty to execute the to the vital part steel production plays -

foregoing legislative programs. Their success- OU! COnomy. The afidavits emphasize the

ful execution depends upon continued pro- critical need for steel in our defense pro-

duction of steel and stabilized prices for 8! the absence of appreciable inven

steel. Accordingly, when the collective bar- tories of steel, and the drastic results of any

gaining agreements between the Nation’s interruption m steel production. cc steel producers and their employees, repre- Accordingly, if the President has any sented by the United Steel Workers, were Power under the Constitution to meet a due to expire on December 31, 1951, and Critical situation in the absence of express a strike shutting down the entire basic steel Statutory authorization, there is no basis industry was threatened, the President acted whatever for criticizing the exercise of such

to avert a complete shutdown of steel pro- Power in this case.

duction. .... We... assume without de- The steel mills were seized for a public ciding that the courts may go behind a Presi- use. The power of eminent domain, invoked dent’s finding of fact that an emergency _ in this case, is an essential attribute of sovexists. But there is not the slightest basis ereignty and has long been recognized as a for suggesting that the President’s finding power of the Federal Government. .. .

in this case can be undermined. Plaintiffs Admitting that the Government could

YOUNGSTOWN SHEET & TUBE CoO. V. SAWYER 773 seize the mills, plaintiffs claim that the im- of human affairs,’ and that ‘“(i)ts means plied power of eminent domain can be exer- are adequate to its ends.” Cases do arise cised only under an Act of Congress; under presenting questions which could not have no circumstances, they say, can that power been foreseen by the Framers. In such be exercised by the President unless he can cases, the Constitution has been treated as point to an express provision in enabling a living document adaptable to new situalegislation. This was the view adopted by the tions. But we are not called upon today to District Judge when he granted the pre- expand the Constitution to meet a new situa-

liminary injunction. ... tion. For, in this case, we need only look Under this view, the President is left to history and time-honored principles of

powerless at the very moment when the need constitutional law—principles that have been

for action may be most pressing and when applied consistently by all branches of the no one, other than he, is immediately ca- Government throughout our history. It is pable of action. Under this view, he is left those who assert the invalidity of the Execupowerless because a power not expressly tive Order who seek to amend the Constitugiven to Congress is nevertheless found to tion in this case... .

rest exclusively with Congress. The broad executive power granted by Consideration of this view of executive Article II to an officer on duty 365 days a impotence calls for further examination of year cannot, it 1S said, be invoked to avert the nature of the separation of powers disaster. Instead, the President must conunder our tripartite system of Govern- fine himself to sending a message to Con-

ment. ... gress recommending action. Under this mesThe whole of the “executive Power” is senger-boy concept of the Office, the Presivested in the President. Before entering dent cannot even act to preserve legislative office, the President swears that he “will programs from destruction so that Congress faithfully execute the Office of President of | will have something left to act upon. There

the United States, and will to the best of is not judicial finding that the executive (his) ability, preserve, protect and defend action was unwarranted because there was the Constitution of the United States.” Art. in fact no basis for the President’s finding of

IT, sec. 1. the existence of an emergency for, under This comprehensive grant of the execu- this view, the gravity of the emergency and tive power to a single person was bestowed the immediacy of the threatened disaster soon after the country had thrown the yoke are considered irrelevant as a matter of law.

of monarchy. Only by instilling initiative Seizure of the plaintiffs’ property is not and vigor in all of the three departments of a pleasant undertaking. Similarly unpleasGovernment, declared Madison, could tyr- ant to a free country are the draft which anny in any form be avoided. ... It is disrupts the home and military procurement thus apparent that the Presidency was de- which causes economic dislocation and comliberately fashioned as an office of power pels adoption of price controls, wage staand independence. Of course, the Framers bilization and allocation of materials. The created no autocrat capable of arrogating President informed Congress that even a any power unto himself at any time. But temporary Government operation of plainneither did they create an automaton im- tiffs’ properties was “thoroughly distasteful” potent to exercise the powers of Govern- to him, but was necessary to prevent immement at a time when the survival of the diate paralysis of the mobilization program.

Republic itself may be at stake. Presidents have been in the past, and any

In passing upon the grave constitutional man worthy of the Office should be in the question presented in this case, we must future, free to take at least interim action never forget, as Chief Justice Marshall ad- necessary to execute legislative programs monished, that the Constitution is “intended _ essential to survival of the Nation. A sturdy

to endure for ages to come, and conse- judiciary should not be swayed by the unquently, to be adapted to the various crises pleasantness or unpopularity of necessary

774 DOCUMENTS OF AMERICAN HISTORY executive action, but must independently to “take Care that the laws be faithfully determine for itself whether the President executed.” was acting, as required by the Constitution,

604. TRUMAN’S VETO OF THE McCARRAN-WALTER IMMIGRATION ACT June 25, 1952 (82nd Congress, 2nd Session, House Doc. No. 520) The McCarran-Walter Immigration Act con- In recent years our immigration policy tinued the basic quota system of immigration has become a matter of major national conadopted in 1924. It included new provisions to cern. Long dormant questions about the prevent the admission of possible subversives effect of our immigration laws now assume and to permit the expulsion of dangerous aliens. first-rate importance. What we do in the tional and other grounds, but Congress passed field of immigration and naturalization is it over his veto by a vote of 278 to 133 in the Vital to the continued growth and internal House and 57 to 26 in the Senate. See P. Tyler, development of the United States—to the ed., Immigration and the United States; U.S. economic and social strength of our country President’s Commission on Immigration and —which is the core of the defense of the Naturalization, Whom We Shall Welcome; B.M. fyee world. Our immigration policy is

President Truman vetoed the bill on constitu- , . - oe .

Ziegler, ed., Immigration. equally, if not more, important to the con-

duct of our foreign relations and to our responsibilities of moral leadership in the struggle for world peace.

To the House of Representatives: In one respect, this bill recognizes the I return herewith, without my approval, great international significance of our imH. R. 5678, the proposed Immigration and migration and naturalization policy, and

Nationality Act. takes a step to improve existing laws. All

In outlining my objections to this bill, I racial bars to naturalization would be rewant to make it clear that it contains cer- moved, and at least some minimum immitain provisions that meet with my approval. gration quota would be afforded to each of This is a long and complex piece of legisla- the free nations of Asia. tion. It has 164 separate sections, some I have long urged that racial or national with more than 40 subdivisions. It presents barriers to naturalization be abolished. This a difficult problem of weighing the good was one of the recommendations in my civilagainst the bad, and arriving at a judgment rights message to the Congress on February

on the whole. 2, 1948. On February 19, 1951, the House

H. R. 5678 is an omnibus bill which of Representatives unanimously passed a would revise and codify all of our laws bill to carry it out. relating to immigration, naturalization, and But now this most desirable provision

nationality. comes before me embedded in a mass of

A general revision and modernization of legislation which would perpetuate injustices , these laws unquestionably is needed and of long standing against many other nations long overdue, particularly with respect to of the world, hamper the efforts we are immigration. But this bill would not provide making to rally the men of the east and us with an immigration policy adequate for west alike to the cause of freedom, and inthe present world situation. Indeed, the bill, _tensify the repressive and inhumane aspects taking all its provisions together, would be of our immigration procedures. The price is , a step backward and not a step forward. In too high and, in good conscience, I cannot

view of the crying need for reform in the’ agree to pay it.... field of immigration, I deeply regret that I In addition to removing racial bars to am unable to approve H. R. 5678. naturalization, the bill would permit Amer-

VETO OF THE MCCARRAN-WALTER ACT 775 ican women citizens to bring their alien citizens, irritating to our allies abroad, and husbands to this country as nonquota im- foreign to our purposes and ideals. migrants, and enable alien husbands of resi- The over-all quota limitation, under the dent women aliens to come in under the Jaw of 1924, restricted annual immigration quota in a preferred status. These provi- to approximately 150,000. This was about sions would be a step toward preserving the one-seventh of 1 percent of our total popuintegrity of the family under our immigra- lation in 1920. Taking into account the

_ oeutane arerew clearly Cesirable: 1 growth in population sinceof1920, the aw now these improvements areh,heavily allows us but one-tenth 1 percent of our outweighed by other provisions of the bill total population. And since the largest na-

which retain existing defects in our laws, tional] quotas are only partly used, the and add many undesirable new features. number actually coming in has been in the The bill would continue, practically with- neighborhood of one-fifteenth of 1 percent.

out change, the national origins quota sys- This is far less than we must have in the tem, which was enacted into law in 1924, years ahead to keep up with the growing and put into effect in 1929. This quota sys- needs of our Nation for manpower to maintem—always based upon assumptions at var- tain the strength and vigor of our economy.

lance with our American ideals—is long The greatest vice of the present quota since out of date and more than ever un- system, however, is that it discriminates, realistic in the face of present world condi- deliberately and intentionally, against many

tions. of the peoples of the world. The purpose

This system hinders us in dealing with behind it was to cut down and virtually current immigration problems, and is a gjiminate immigration to this country from constant handicap in the conduct of our southern and eastern Europe. A theory was foreign relations. As I stated in my message invented to rationalize this objective. The to Congress on March 24, 1952, on the need theory was that in order to be readily assimfor an emergency program of immigration ilable, European immigrants should be ad-

from Europe: mitted in proportion to the numbers of quate to meet present emergency needs, it is already here as shown by the census of 1920. also an obstacle to the development of an en- Since Americans of English, Irish, and Gerlightened and satisfactory immigration policy man descent were most numerous, immi-

for the long-run future. grants of those three nationalities got the

The inadequacy of the present quota sys- on's Share more than two-thirds—of the tem has been demonstrated since the end total quota. T e remaining third was divided of the war, when we were compelled to UP among all t e other nations given quotas.

resort to emergency legislation to admit The desired effect was obtained. Immi-

displaced persons. If the quota system re- gration from the newer sources of Southern mains unchanged, we shall be compelled to and Eastern Europe was reduced to a trickle. resort to similar emergency legislation again, The quotas allotted to England and Ireland in order to admit any substantial portion of | remained largely unused, as was intended. the refugees from communism or the victims Total quota immigration fell to a half or a

of overcrowding in Europe. third—and sometimes even less—of the anWith the idea of quotas in general there nual limit of 154,000. People from such is no quarrel. Some numerical limitation countries as Greece, or Spain, or Latvia were

must beour set,capacity so that to immigration virtually of any opportunity to within absorb. Butwill the be come here atneprived all, simply because Greeks or over-all limitation of numbers imposed by ‘Spaniards or Latvians had not come here the national origins quota system is too before 1920 in any substantial numbers. small for our needs today, and the country The idea behind this discriminatory policy by country limitations create a pattern that was, to put it baldly, that Americans with is insulting to large numbers of our finest English or Irish names were better people

776 DOCUMENTS OF AMERICAN HISTORY and better citizens than Americans with time of trouble is recognized in this bill. Italian or Greek or Polish names. It was But it is not too late. The Congress can thought that people of West European ori- remedy these defects, and it can adopt legis-

gin made better citizens than Rumanians lation to meet the most critical problems or Yugoslavs or Ukrainians or Hungarians before adjournment... . or Balts or Austrians. Such a concept is I now wish to turn to the other provisions utterly unworthy of our traditions and our of the bill, those dealing with the qualificaideals. It violates the great political doctrine tions of aliens and immigrants for admission, of the Declaration of Independence that with the administration of the laws, and with “all men are created equal.” It denies the problems of naturalization and nationality. humanitarian creed inscribed beneath the In these provisions, too, I find objections Statue of Liberty proclaiming to all nations, that preclude my signing this bill. Give me your tired, your Poor, your hud- The bill would make it even more difficult

dled masses yearning to breathe free. to enter our country. Our resident dliens

It repudiates our basic religious concepts, would be more easily separated from homes our belief in the brotherhood of man, and and families under grounds of deportation, in the words of St. Paul that “there is nei- both new and old, which would specifically ther Jew nor Greek, there is neither bond be made retroactive. Admission to our citinor free, .. . for ye are all one in Christ zenship would be made more difficult: expul-

Jesus,” sion from our citizenship would be made

The basis of this quota system was false easier. Certain rights of native-born, firstand unworthy in 1924. It is even worse generation Americans would be limited. All now. At the present time this quota system our citizens returning from abroad would be keeps out the very people we want to bring subjected to serious risk of unreasonable in. It is incredible to me that, in this year invasions of privacy. Seldom has a bill exof 1952, we should again be enacting into hibited the distrust evidenced here for citilaw such a slur on the patriotism, the capac- zens and aliens alike—at a time when we ity, and the decency of a large part of our need unity at home and the confidence of

citizenry. ... our friends abroad... .

The time to shake off this dead weight I am asked to approve the reenactment of past mistakes is now. The time to develop of highly objectionable provisions now cona decent policy of immigration—a fitting in- tained in the Internal Security Act of 1950

strument for our foreign policy and a true —a measure passed over my veto shortly reflection of the ideals we stand for, at home after the invasion of South Korea. Some of and abroad—is now. In my earlier message these provisions would empower the Attor-

on immigration, I tried to explain to the ney General to deport any alien who has Congress that the situation we face in im- engaged or has had a purpose to engage in migration is an emergency—that it must activities “prejudicial to the public interbe met promptly. I have pointed out that est” or ‘“‘subversive to the national security.” in the last few years, we have blazed a new No standards or definitions are provided to trail in immigration, through our displaced guide discretion in the exercise of powers persons program. Through the combined ef- so sweeping. To punish undefined “activiforts of the Government and private agen- ties” departs from traditional American incies, working together not to keep people sistence on established standards of guilt. out, but to bring qualified people in, we To punish an undefined “purpose” is thought summoned our resources of good will and _ control. human feeling to meet the task. In this pro- These provisions are worse than the ingram we have found better techniques to famous Alien Act of 1798, passed in a time meet the immigration problems of the 1950’s. of national fear and distrust of foreigners,

None of this fruitful experience of the which gave the President power to deport : last 3 years is reflected in this bill before any alien deemed ‘dangerous to the peace me. None of the crying human needs of this and safety of the United States.” Alien

UNITED STATES V. RUMELY 777 residents were thoroughly frightened and tions of existing statutes or administrative citizens much disturbed by that threat to procedures. Time and again, examination

liberty. discloses that the revisions of existing law Such powers are inconsistent with our that would be made by the bill are intended democratic ideals. Conferring powers like to solidify some restrictive practice of our that upon the Attorney General is unfair immigration authorities, or to overrule or to him as well as to our alien residents. modify some ameliorative decision of the Once fully informed of such vast discretion- Supreme Court or other Federal courts. By ary powers vested in the Attorney General, and large, the changes that would be made Americans now would and should be just as by the bill do not depart from the basically alarmed as Americans were in 1798 over restrictive spirit of our existing laws—but less drastic powers vested in the President. intensify and reinforce it. Heretofore, for the most part, deportation These conclusions point to an underlying and exclusion have rested upon findings of condition which deserves the most careful fact made upon evidence. Under this bill, study. Should we not undertake a reassessthey would rest in many instances upon the ment of our immigration policies and prac“opinion” or “satisfaction” of immigration or tices in the light of the conditions that face consular employees. The change from objec- us in the second half of the twentieth centive findings to subjective feelings is not tury? The great popular interest which this compatible with our system of justice. The bill has created, and the criticism which it result would be to restrict or eliminate ju- has stirred up, demand an affirmative andicial review of unlawful administrative ac- swer. I hope the Congress will agree to a

tlon.... careful reexamination of this entire matMany of the aspects of the bill which ter....

have been most widely criticized in the

public debate are reaffirmations or elabora- Harry S. TRUMAN 605. UNITED STATES v. RUMELY

345 U.S. 41 1953

This is the leading case on the rights of wit- may like what his group publishes; others may nesses before Congressional investigating com- disapprove. These tracts may be the essence mittees. At a time when the investigative func- of wisdom to some; to others their point

tion of Congress was assuming Increasing of yiew and philosophy may be anathema.

importance, it placed important limitations upon op their words may be harsh

the powers of Congressional committees. The o some ears y rs

exact extent of these limitations was not clear, Nd repulsive; to others they may carry the however, since the Court as a whole did not hope of the future. We have here a publisher confront the constitutional questions discussed who through books and pamphlets seeks to in the Douglas opinion. See T. Taylor, Grand reach the minds and hearts of the American Inquest; C. Fairman, Mr. Justice Miller and people. He is different in some respects from the Supreme Court; E. J. Eberling, Congres- other publishers. But the differences are sional Investigations; J. E. Johnson, The In- minor. Like the publishers of newspapers,

Goa Powers Congress; M. N. Mcor books, .this eary, TheofDevelopments ofmagazines, Congressional . publisher bids for

Investigative Power. For an analogous case in the minds of men In the market place of the lower courts, see Philip Wittenberg, ed., The ideas. The aim of the historic struggle for

Lamont Case. a free press was “to establish and preserve the right of the English people to full information in respect of the doings or misDouctas, J... . Of necessity I come to the doings of their government.” Grosjean v. constitutional questions. Respondent repre- American Press Co., 297 U.S. 233, 247, ... sents a segment of the American press. Some That is the tradition behind the First

778 DOCUMENTS OF AMERICAN HISTORY Amendment. Censorship or previous re- ponderable pressures of the orthodox lay straint is banned. . . . Discriminatory taxa- hold. Some will fear to read what is un-

tion is outlawed. ... The privilege of popular, what the powers-that-be dislike. pamphleteering, as well as the more orthodox When the light of publicity may reach any

types of publications, may neither be li- student, any teacher, inquiry will be discensed, ... Door to door distribution is couraged. The books and pamphlets that privileged. . . . These are illustrative of the are critical of the administration, that preferred position granted speech and the preach an unpopular policy in domestic or

press by the First Amendment... . foreign affairs, that are in disrepute in the If the present inquiry were sanctioned the orthodox school of thought will be suspect and

press would be subjected to harassment that subject to investigation. The press and its in practical effect might be as serious as readers will pay a heavy price in harassment. censorship. A publisher, compelled to reg- But that will be minor in comparison with the ister with the federal government, would be menace of the shadow which government subjected to vexatious inquiries. A require- will cast over literature that does not follow ment that a publisher disclose the identity the dominant party line. If the lady from of those who buy his books, pamphlets, or Toledo can be required to disclose what she papers is indeed the beginning of surveillance read yesterday and what she will read to-

| of the press. True, no legal sanction is in- morrow, fear will take the place of freedom volved here. Congress has imposed no tax, in the libraries, bookstores, and homes of established no board of censors, instituted the land. Through the harassment of hearno licensing system. But the potential re- ings, investigations, reports, and subpoenas straint is equally severe. The finger of gov- government will hold a club over speech and ernment leveled against the press is ominous. over the press. Congress could not do this Once the government can demand of a pub-_ by law. The power of investigation is also lisher the names of the purchasers of his limited. Inquiry into personal and private

publications, the free press as we know it affairs is precluded.... And so is any disappears. Then the spectre of a govern- matter in respect to which no valid legislament agent will look over the shoulder of tion could be had. . . . Since Congress could everyone who reads. The purchase of a book not by law require of respondent what the or pamphlet today may result in a subpoena House demanded, it may not take the first tomorrow. Fear of criticism goes with every step in an inquiry ending in fine or imprison-

person into the bookstall. The subtle, im- ment.

606. CREATION OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE March 12, 1953 (83rd Congress, Ist Session, House Doc. No. 102) The expanded role of the federal government in the provisions of the Reorganization Act of the fields of health, education, and welfare led 1949, as amended.

President Eisenhower to propose the co-ordina- In my message of February 2, 1953, I tion of activities in these areas under the super- stated that I would send to the Congress a vision of a single official of cabinet rank. In reorganization plan defining a new adminis-

1953, Congress acted favorably on this recom- : ae .

mendation. The first Secretary of the new trative status for Federal activities in department was Oveta Culp Hobby of Texas. health, education, and social security. This See J. E. Russell, ed., National Policies for plan carries out that intention by creating

Education, Health and Social Service. a Department of Health, Education, and

Welfare as one of the executive departments of the Government and by transferring to it

To the Congress of the United States: the various units of the Federal Security I transmit herewith Reorganization Plan Agency. The Department will be headed by No. 1 of 1953, prepared in accordance with a Secretary of Health, Education, and Wel-

HEALTH, EDUCATION AND WELFARE 779 fare, who will be assisted by an Under tor’s views are given proper consideration Secretary and two Assistant Secretaries. in executive councils by inviting her to atThe purpose of this plan is to improve tend meetings of the Cabinet. Now the the administration of the vital health, edu- establishment of the new Department procation, and social-security functions now vided for in Reorganization Plan No. 1 of being carried on in the Federal Security 1953 will give the needed additional assurAgency by giving them departmental rank. ance that these matters will receive the full Such action is demanded by the importance consideration they deserve in the whole and magnitude of these functions, which operation of the Government. affect the well-being of millions of our citi- This need has long been recognized. In zens. The programs carried on by the Pub- 1923, President Harding proposed a Departlic Health Service include, for example, the ment of Education and Welfare, which was conduct and promotion of research into the also to include health functions. In 1924, the prevention and cure of such dangerous ail- Joint Committee on Reorganization recom-

ments as cancer and heart disease. The mended a new department similar to that Public Health Service also administers pay- suggested by President Harding. In 1932, one

ments to the States for the support of their of President Hoover’s reorganization prohealth services and for urgently needed hos- _ posals called for the concentration of health,

pital construction. The Office of Education education, and recreational activities in a collects, analyzes, and distributes to school _ single executive department. The President’s administrators throughout the country in- Committee on Administrative Management formation relating to the organization and in 1937 recommended the placing of health, management of educational systems. Among education, and social-security functions in a its other functions is the provision of finan- Department of Social Welfare. This recomcial help to school districts burdened by mendation was partially implemented in 1939

activities of the United States Government. by the creation of the Federal Security State assistance to the aged, the blind, the Agency—by which action the Congress intotally disabled, and dependent children is dicated its approval of the grouping of these heavily supported by grants-in-aid adminis- functions in a single agency. A new detered through the Social Security Adminis- partment could not be proposed at that time tration. The old-age and survivors insurance because the Reorganization Act of 1939 system and child development and welfare prohibited the creation of additional execuprograms are additional responsibilities of tive departments. In 1949, the Commission that Administration. Other offices of the on Organization of the Executive Branch of Federal Security Agency are responsible for the Government proposed the creation of a the conduct of Federal vocational rehabili- department for social security and educatation programs and for the enforcement of _ tion.

food and drug laws. The present plan will make it possible to

There should be an unremitting effort to give the officials directing the Department improve those health, education, and social- titles indicative of their responsibilities and security programs which have proved their salaries comparable to those received by value. I have already recommended the ex- their counterparts in other executive departpansion of the social-security system to ments. As the Under Secretary of an execucover persons not now protected, the con- tive department, the Secretary’s principal

tinuation of assistance to school districts assistant will be better equipped to give

whose population has been greatly increased leadership in the Department’s organization by the expansion of defense activities, and and management activities, for which he will the strengthening of our food and drug laws. be primarily responsible. The plan opens But good intent and high purpose are not the way to further administrative improve-

enough; all such programs depend for their ment by authorizing the Secretary to censuccess upon efficient, responsible adminis- tralize services and activities common to the

tration. I have recently taken action to as- several agencies of the Department. . . .

sure that the Federal Security Administra- Dwicut D. EISENHOWER.

780 DOCUMENTS OF AMERICAN HISTORY 607. EISENHOWER’S SECURITY PROGRAM—EXECUTIVE ORDER 10450 April 27, 1953 (Federal Register, Vol. 18, p. 2489) President Eisenhower reorganized the govern- sponsible for establishing and maintaining ment’s security program in 1953. Executive Or- within his department or agency an effective der 10450 extended the security system to all program to insure that the employment and

agencies of the government and replaced the er ane J Truman criterion of disloyalty as the basis for retention in employment - aw civilian offi dismissing government employees with the new cer or e mproyee Wi aan c epartment oF criterion of “security risk.” See Doc. No. 574. @ency is clearly consistent with the interests This new criterion permitted the discharge of of the national security.

any person whose employment was for any Section 3. (a) The appointment of each reason not- “clearly consistent with the interests civilian officer or employee in any depart-

of national security.” In 1956 the Supreme ment or agency of the Government shall be

Court held that this order applied only t ; ; ae

workers in “sensitive” positions. ‘See Doc. No. made subject to investigation. The scope of 624. See A. Varmolinsky, Case Studies in Per- the investigation shall be determined in the

sonal Security; W. Gellhorn, Individual Free- first instance according to the degree of dom and Governmental Restraints; J. R. adverse effect the occupant of the position Wiggins, Freedom or Security; Current History, sought to be filled could bring about, by

October 1955. virtue of the nature of the position, on the

national security, but in no event shall the investigation include less than a national agency check (including a check of the finWHEREAS the interests of the national 8¢*Ptint files of the Federal Bureau of Insecurity require that all persons privileged VeStigation), and written inquiries to approto be employed in the departments and agen- priate local law-enforcement agencies, forcies of the Government shall be reliable, ™é€* employers and supervisors, references, trustworthy, of good- conduct and character, and schools attended by the person under and of complete and unswerving loyalty to investigation: Provided, that upon request

the United States: and of the head of the department or agency

WHEREAS the American tradition that Comcermed, the Civil Service Commission all persons should receive fair, impartial, ™4¥ Im its discretion, authorize such less and equitable treatment at the hands of the MVestigation as may meet the requirements Government requires that all persons seeking ©! the national security with respect to perthe privilege of employment or privileged diem, intermittent, temporary, or seasonal to be employed in the departments and agen- ¢™Ployees, or aliens employed outside the cies of the Government be adjudged by mu- United States. Should there develop at any tually consistent and no less than minimum stage of investigation information indicating

standards and procedures among the de- ‘hat the employment of any such person partments and agencies governing the em- ™ay not be clearly consistent with the inloyment and retention in employment of terests of the national security, there shall

e eons in the Federal service it jg be conducted with respect to such person a hereby ordered as follows: full field investigation, or such less investigaSection 1. In addition to the departments tion as shall be sufficient to enable the head

and agencies specified in the said act of of the department or agency concerned to August 26, 1950, and Executive Order No. determine whether retention of such person 10237 of April 26 1951, the provisions of is clearly consistent with the interests of the that act shall apply to all other departments national security... .

and agencies of the Government. Section 6. Should there develop at any Section 2. The head of each department stage of investigation information indicating and agency of the Government shall be re- that the employment of any officer or em-

E1SENHOWER’S SECURITY PROGRAM 781 ployee of the Government may not be ciations which tend to show that the clearly consistent with the interests of the individual is not reliable or trustworthy. national security, the head of the department (ii) Any deliberate misrepresentations,

or agency concerned or his representative falsifications, or omission of material shall immediately suspend the employment facts.

of the person involved if he deems such (iii) Any criminal, infamous, dishonsuspension necessary in the interests of the est, immoral, or notoriously disgraceful

national security and, following such in- conduct, habitual use of intoxicants to vestigation and review as he deems neces- excess, drug addiction, or sexual perversary, the head of the department or agency sion.

concerned shall terminate the employment (iv) An adjudication of insanity, or

of such suspended officer or employee when- treatment for serious mental or neuroever he shall determine such termination logical disorder without satisfactory evinecessary or advisable in the interests of the dence of cure.

national security, in accordance with the (v) Any facts which furnish reason to

said act of August 26, 1950. believe that the individual may be sub-

Section 7. Any person whose employment jected to coercion, influence, or pressure

is suspended or terminated under the au- which may cause him to act contrary to thority granted to heads of departments and the best interests of the national security. agencies by or in accordance with the said (2) Commission of any act of sabotage, act of August 26, 1950, or pursuant to the espionage, treason, or sedition, or attempts said Executive Order No. 9835 or any other thereat or preparation therefor, or conspir-

security or loyalty program relating to ing with, or aiding or abetting, another to officers or employees of the Government, commit or attempt to commit any act of shall not be reinstated or restored to duty sabotage, espionage, treason, or sedition. or reemployed in the same department or (3) Establishing or continuing a sympaagency, and shall not be reemployed in any’ thetic association with a _ saboteur, spy, other department or agency, unless the head traitor, seditionist, anarchist, or revolutionof the department or agency concerned finds ist, or with an espionage or other secret that such reinstatement, restoration, or re- agent or representative of a foreign nation,

employment is clearly consistent with the or any representative of a foreign nation interests of the national security, which whose interests may be inimical to the infinding shall be made a part of the records’ terests of the United States, or with any of such department or agency: Provided, person who advocates the use of force or that no person whose employment has been violence to overthrow the government of the

terminated under such authority thereafter United States or the alteration of the form may be employed by any other department of government of the United States by un-

or agency except after a determination by Constitutional means. | the Civil Service Commission that such per- (4) Advocacy of use of force or violence

son is eligible for such employment. to overthrow the government of the United Section 8(a) The investigations conducted States, or of the alteration of the form of pursuant to this order shall be designed to government of the United States by uncondevelop information as to whether the em- stitutional means. ployment or retention in employment in (S) Membership in, or affiliation or symthe Federal service of the person being in- pathetic association with, any foreign or vestigated is clearly consistent with the in- domestic organization, association, move-

terests of the national security. Such ment, group, or combination of persons information shall relate, but shall not be which is totalitarian, Fascist, Communist

limited, to the following: or subversive, or which has adopted or (1) Depending on the relation of the shows, a policy of advocating or approving Government employment to the national se- the commission of acts of force or violence

curity : . a to deny other persons their rights under the (i) Any behavior, activities, or asso- Constitution of the United States, or which

782 DOCUMENTS OF AMERICAN HIsToORY seeks to alter the form of government of the (7) Performing or attempting to perform United States by unconstitutional means. his duties, or otherwise acting, so as to serve (6) Intentional, unauthorized disclosure the interests of another government in pref-

to any person of security information, or of erence to the interests of the United other information disclosure of which is States... . prohibited by law, or willful violation or

disregard of security regulations. DwicuTt D. EISENHOWER

608. SUBMERGED LANDS ACT OF 1953 May 22, 1953 (Public Law 31, 83rd Congress) This act settled a long-standing controversy igable waters within the boundaries of the | over the development of natural resources, par- respective States, and the natural resources ticularly oil, off the shores of the United States. within such lands and waters, and (2) the The issue of state versus federal control over right and power to manage, administer, lease these resources involved two further questions: devel q h d ; d d I first, should these resources be exploited for the eVveroPp, and use the said lan 5 an natura benefit of individual states or for should the benefit of ate State Ingbe, i inan aco wen appsupjec veabye the nation as a whole; second, these jaw Cyreance are hereby, resources be developed by private corporations to the provisions hereof, recognized, conor by public agencies. In 1947 and again in firmed, established, and vested in and assigned 1950, the Supreme Court declared that the fed- to the respective States or the persons who eral government had exclusive rights to these were on June 5, 1950, entitled thereto under submerged lands, see U. S. v. California 332 the Jaw of the respective States in which the

y ° On 339 a “S707 a ne ° po me land is located, and the respective grantees, Truman assigned the offshore oul in resources ite (1)nite Theates ted interest the navy as a reserve for use time oftowar. fereDyereot = TreThese actions were nullified by the Submerged leases and relinquishes unto said States and Lands Act of 1953 which assigned federal rights persons aforesaid, except as otherwise re-

to the offshore lands to the seaboard states. served herein, all right, title, and interest The question of the extent of state title to of the United States, if any it has, in and tidelands, however, remained to vex future ad- to aj] said lands, improvements, and natural ministrations. See E. R. Bartley, The Tidelands resources; (2) the United States hereby re-

Oil Controversy; Fulton, Sovereignty of the leases and relinquishes all claims of the Sea; Masterson, Jurisdiction in Marginal Seas; nd

Jessup, Law of Territorial Waters and Maritime United States, if any it has, for money Or

Jurisdiction. damages arising out of any operations of said States or persons pursuant to State authority

upon or within said lands and navigable

AN ACT waters; ....

To confirm and establish the titles of the (4) Nothing in this Act shall affect the

States to lands beneath navigable waters use, development, improvement, or control within State boundaries and to the natural by or under the constitutional authority of resources within such lands and waters, to the United States of said lands and waters provide for the use and control of said lands for the purposes of navigation or flood conand resources, and to confirm the jurisdiction tro] or the production of power, or be conand control of the United States over the tryed as the release or relinquishment of natural resources of the seabed of the Con- any rights of the United States arising under tinental Shelf seaward of State boundaries. the constitutional authority of Congress to

Sec. 3. Rights of the States — regulate or improve navigation, or to pro(a) It is hereby determined and declared vide for flood control, or the production of

to be in the public interest that (1) title to power; .... and ownership of the lands beneath nav- SEC. 4. Seaward Boundaries.—The sea-

TRUMAN’S REPLY TO A CONGRESSIONAL SUBPOENA 783 ward boundary of each original coastal State Sec. 6. Powers Retained by the United is hereby approved and confirmed as a line States——(a) The United States retains all three geographical miles distant from its its navigational servitude and rights in and coast line or, in the case of the Great Lakes, powers of regulation and control of said to the international boundary. Any State lands and navigable waters for the conadmitted subsequent to the formation of the stitutional purposes of commerce, navigaUnion which has not already done so may tion, national defense, and international afextend its seaward boundaries to a line fairs, all of which shall be paramount to, three geographical miles distant from its but shall not be deemed to include, procoast line, or to the international boundaries prietary rights of ownership, or the rights of the United States in the Great Lakes or of management, administration, leasing, use, any other body of water traversed by such and development of the lands and natural boundaries. Any claim heretofore or here- resources which are specifically recognized, after asserted either by constitutional pro- confirmed, established, and vested in and vision, statute, or otherwise, indicating the assigned to the respective States and others intent of a State so to extend its boundaries by section 3 of this Act. is hereby approved and confirmed, without (b) In time of war or when necessary for prejudice to its claim, if any it has, that its national defense, and the Congress or the boundaries extend beyond that line. Nothing President shall so prescribe, the United in this section is to be construed as ques- States shall have the right of first refusal tioning or in any manner prejudicing the to purchase at the prevailing market price, existence of any State’s seaward boundary all or any portion of the said natural rebeyond three geographical miles if it was sources, or to acquire and use any portion so provided by its constitution or laws prior of said lands by proceeding in accordance to or at the time such State became a mem- with due process of Jaw and paying just ber of the Union, or if it has been hereto- compensation therefor... . fore approved by Congress... . 609. TRUMAN’S REPLY TO A CONGRESSIONAL SUBPOENA November 13, 1953 (New York Times, November 13, 1953) The return of the Republican Party to power E. S. Corwin, The President: Office and Powin Washington was accompanied by a campaign _ ers. to discredit the Truman administration. Attorney General Brownell searched the files of the government for evidence that the Truman ad-

ministration had been “blind to Communist infiltration.’ On November 6, 1953, Brownell

announced the first count of his indictment — Oe Harowp H. VELDE

that in 1946 President Truman had appointed airman, House Committee on Un-AmerHarry Dexter White to a high government post ican Activities despite alleged evidence that White was a Soviet Dear Sir:

spy. On November 9, Chairman Velde of the I have your subpoena dated Nov. 9, 1953, House Un-American Activities Committee issued directing my appearance before your com-

a subpoena requiring the former president to mittee on Friday, Nov. 13, in Washington.

testaly co dlent eet on aneurin Following The subpoena does not state the matters aa precedent established by Jefferson in the pon which you seek testimony, but I asan invasion of executive prerogative. Public sume ro m the Press stories that you seek

urr trial, Truman rejected the subpoena as . ,

revulsion against the attempt to impugn the to examine me with respect to matters which patriotism of a former president led Attorney occurred during my tenure of the Presidency General Brownell to drop his campaign. See Of the United States.

W. E. Binkley, The President and Congress; In spite of my personal willingness to

784 DOCUMENTS OF AMERICAN HIsToRY co-operate with your committee, I feel con- the Congress to break down the separation

strained by my duty to the people of the of powers in these words:

United States to decline to comply with the “For myself I shall repel all such attempts

subpoena. as an invasion of the principles of justice In doing so, I am carrying out the pro- as well as of the Constitution, and IJ shall visions of the Constitution of the United esteem it my sacred duty to the people of

States; and am following a long line of the United States to resist them as I

precedents, commencing with George Wash- would the establishment of a Spanish Inington himself in 1796. Since his day, Presi- quisition.”

dents Jefferson, Monroe, Jackson, Tyler, Y might commend to your reading the Polk, Fillmore, Buchanan, Lincoln, Grant, opinion of one of the committees of the Hayes, Cleveland, Theodore Roosevelt, House of Representatives in 1879, House Coolidge, Hoover, and Franklin D. Roose- Report 141, March 3, 1879, Forty-fifth Convelt have declined to respond to subpoenas’ gress, Third Session, in which the House or demands for information of various kinds Judiciary Committee said the following:

by Congress. “The Executive is as independent of The underlying reason for this clearly either house of Congress as either house of established and universally recognized con- Congress is independent of him, and they stitutional doctrine has been succinctly set cannot call for the records of his actions, or forth by Charles Warren, one of our leading _ the action of his officers against his consent,

constitutional authorities, as follows: any more than he can call for any of the “In this long series of contests by the journals or records of the House or Senate.”

Executive to maintain his constitutional in- It must be obvious to you that if the tegrity, one sees a legitimate conclusion doctrine of separation of powers and the from our theory of government. ... De- independence of the Presidency is to have fense by the Executive of his constitutional any validity at all, it must be equally ap-

powers becomes in very truth, therefore, plicable to a President after his term of defense of popular rights—defense of power office has expired when he is sought to be

which the people granted to him. examined with respect to any acts occurring “It was in that sense that President while he is President. Cleveland spoke of his duty to the people The doctrine would be shattered, and the not to relinquish any of the powers of his President, contrary to our fundamental great office. It was in that sense that Presi- theory of constitutional government, would

dent Buchanan stated the people have become a mere arm of the Legislative rights and prerogatives in the execution of | Branch of the Government if he would feel

his office by the President which every during his term of office that his every act ) President is under a duty to see ‘shall never might be subject to official inquiry and posbe violated in his person’ but ‘passed to his _ sible distortion for political purposes.

successors unimpaired by the adoption of a If your intention, however, is to inquire dangerous precedent.’ In maintaining his into any acts as a private individual either rights against a trespassing Congress, the before or after my Presidency and unrelated President defends not himself, but popular to any acts. as President, I shall be happy government; he represents not himself but to appear.

the people.” Yours Very Truly, President Jackson repelled an attempt by Harry S. TRUMAN

EISENHOWER’S ATOMS FOR PEACE PROGRAM 785 610. EISENHOWER’S ATOMS FOR PEACE PROGRAM December 8, 1953 (Department of State Publication 5314) Atomic power misused threatened to end human Since that date in 1945, the United States life; wisely used it held out the promise of a of America has conducted 42 test explosions.

better life for all mankind. At the end of 1953, Atomic bombs today are more than 25 President Eisenhower directed the attention of times as powerful as the weapons with the Wore Cheenti the te Snormols Potential which the atomic age dawned, while hydroenergy. f n a speech to the Unite d Nations he 8&0 weapons are In the ranges of millions of

proposed that the major scientific nations of the tons of TNT equivalent.

world jointly contribute to a pool of atomic Today, the United States’ stockpile of power resources to be used for socially desir- atomic weapons, which, of course, increases able purposes. The President thus aroused the daily, exceeds by many times the explosive hopes of the world that in the long run atomic equivalent of the total of all bombs and all

energy would redound to the benefit of the hells that came from every plane and

; years of Wor ar IT.

world community. See International Conference every gun in every theatre of war in all of

on the Peaceful Uses of Atomic Energy, Pro- the f World War II

ceedings 1955;onA.theH.Atom; Compton, Atomic Quest, A sinele ajalloat heth or q landG. Dean, Report R. E. Lapp, single air group, W ether Jan

Atoms and People; U. S. Congress Joint Com- based, can now deliver to any reachable mittee on Atomic Energy, Peaceful Uses of target a destructive cargo exceeding in

Atomic Energy. power all the bombs that fell on Britain in all of World War II. In size and variety, the development of atomic weapons has been no less remarkable. The development has been such that

MADAME PRESIDENT, MEMBERS OF THE GEN- atomic weapons have virtually achieved

ERAL ASSEMBLY: conventional status within our armed ser-

I feel impelled to speak today in a langu- vices. In the United States, the Army, the age that in a sense is new—one which I, who Navy, the Air Force, and the Marine Corps have spent so much of my life in the military are all capable of putting this weapon to profession, would have preferred never to military use.

use. But the dread secret, and the fearful enThat new language is the language of gines of atomic might, are not ours alone.

atomic warfare. In the first place, the secret is possessed by

The atomic age has moved forward at our friends and allies, Great Britain and Cansuch a pace that every citizen of the world ada, whose scientific genius made a tremenshould have some comprehension, at least dous contribution to our Original discoveries, in comparative terms, of the extent of this and the designs of atomic bombs.

development, of the utmost significance to The secret is also known by the Soviet every one of us. Clearly, if the peoples of | Union. the world are to conduct an intelligent search The Soviet Union has informed us that, for peace, they must be armed with the over recent years, it has devoted extensive significant facts of today’s existence. resources to atomic weapons. During this My recital of atomic danger and power period, the Soviet Union has exploded a is necessarily stated in United States terms, series of atomic devices, including at least for these are the only incontrovertible facts one involving thermo-nuclear reactions. that I know. I need hardly point out to this If at one time the United States possessed

Assembly, however, that this subject is what might have been called a monopoly global, not merely national in character. of atomic power, that monopoly ceased to On July 16, 1945, the United States set exist several years ago. Therefore, although off the world’s first atomic explosion. our earlier start has permitted us to accu-

786 DOCUMENTS OF AMERICAN HISTORY mulate what is today a great quantitative struggle upward from savagery toward deadvantage, the atomic realities of today com-__cency, and right, and justice.

prehend two facts of even greater signifi- Surely no sane member of the human race

cance. could discover victory in such desolation.

First, the knowledge now possessed by ‘Could anyone wish his name to be coupled several nations will eventually be shared by _ by history with such human degradation and

others—possibly all others. destruction.

Second, even a vast superiority in num- Occasional pages of history do record the bers of weapons, and a consequent capabil- faces of the “Great Destroyers” but the ity of devastating retaliation, is no preven- whole book of history reveals mankind’s tive, of itself, against the fearful material never-ending quest for peace, and mankind’s damage and toll of human lives that would God-given capacity to build.

be inflicted by surprise aggression. It is with the book of history, and not

The free world, at least dimly aware of with isolated pages, that the United States these facts, has naturally embarked on a_ will ever wish to be identified. My country large program of warning and defense sys- wants to be constructive, not destructive. It tems. That program will be accelerated and wants agreements, not wars, among nations.

expanded. It wants itself to live in freedom, and in the

But let no one think that the expenditure confidence that the people of every other of vast sums for weapons and systems of nation enjoy equally the right of choosing defense can guarantee absolute safety for their own way of life. .

the cities and citizens of any nation. The So my country’s purpose is to help us

awful arithmetic of the atomic bomb does move out of the dark chamber of horrors not permit of any such easy solution. Even into the light, to find a way by which the against the most powerful defense, an aggres- minds of men, the hopes of men, the souls sor in possession of the effective minimum of men everywhere, can move forward tonumber of atomic bombs for a surprise at- ward peace and happiness and well being. tack could probably place a sufficient num- In this quest, I know that we must not ber of his bombs on the chosen targets to lack patience.

cause hideous damage. I know that in a world divided, such as Should such an atomic attack be launched _ ours today, salvation cannot be attained by

against the United States, our reactions one dramatic act. would be swift and resolute. But for me to I know that many steps will have to be say that the defense capabilities of the taken over many months before the world United States are such that they could in- can look at itself one day and truly realize flict terrible losses upon an aggressor—for that a new climate of mutually peaceful conme to say that the retaliation capabilities fidence is abroad in the world. of the United States are so great that such But I know, above all else, that we must an aggressor’s land would be laid waste—all start to take these steps—NOW.... this, while fact, is not the true expression There is at least one new avenue of peace of the purpose and the hope of the United which has not yet been well explored—an

States. avenue now laid out by the General As-

To pause there would be to confirm the sembly of the United Nations. hopeless finality of a belief that two atomic In its resolution of November 18th, 1953, colossi are doomed malevolently to eye each this General Assembly suggested—and I other indefinitely across a trembling world. quote—“that the Disarmament Commission To stop there would be to accept helplessly study the desirability of establishing a subthe probability of civilization destroyed—the committee consisting of representatives of annihilation of the irreplaceable heritage of the Powers principally involved, which mankind handed down to us generation from should seek in private an acceptable solugeneration—and the condemnation of man-_ tion ... and report on such a solution to

kind to begin all over again the age-old the General Assembly and to the Security

EISENHOWER’S ATOMS FOR PEACE PROGRAM 787 Council not later than 1 September 1954.” the scope of the “private conversations” I The United States, heeding the suggestion have referred to earlier.

of the General Assembly of the United Na- The United States is prepared to undertions, is instantly prepared to meet privately take these explorations in good faith. Any with such other countries as may be “prin- partner of the United States acting in the cipally involved,” to seek ‘‘an acceptable same good faith will find the United States solution” to the atomic armaments race a not unreasonable or ungenerous associate. which overshadows not only the peace, but Undoubtedly initial and early contributions

the very life, of the world. to this plan would be small in quantity. We shall carry into these private or diplo- However, the proposal has the great virtue

matic talks a new conception. that it can be undertaken without the irri-

The United States would seek more than tations and mutual suspicions incident to any the mere reduction or elimination of atomic attempt to set up a completely acceptable

materials for military purposes. system of world-wide inspection and conIt is not enough to take this weapon out _ trol.

of the hands of the soldiers. It must be put The Atomic Energy Agency could be into the hands of those who will know how made responsible for the impounding, stor-

to strip its military casing and adapt it to age, and protection of the contributed fis-

the arts of peace. sionable and other materials. The ingenuity

The United States knows that if the fear- of our scientists will provide special safe ful trend of atomic military buildup can be conditions under which such a bank of fisreversed, this greatest of destructive forces sionable material can be made essentially can be developed into a great boon, for the immune to surprise seizure.

benefit of all mankind. The more important responsibility of this

The United States knows that peaceful Atomic Energy Agency would be to devise power from atomic energy is no dream of methods whereby this fissionable material the future. That capability, already proved, would be allocated to serve the peaceful is here—now—today. Who can doubt, if the pursuits of mankind. Experts would be mo-

entire body of the world’s scientists and bilized to apply atomic energy to the needs engineers had adequate amounts of fission- of agriculture, medicine, and other peaceful able material with which to test and develop activities. A special purpose would be to their ideas, that this capability would rap- provide abundant electrical energy in the idly be transformed into universal, efficient, power-starved areas of the world. Thus the

and economic usage. contributing powers would be dedicating To hasten the day when fear of the atom some of their strength to serve the needs will begin to disappear from the minds of rather than the fears of mankind. people, and the governments of the East and The United States would be more than West, there are certain steps that can be willing—it would be proud to take up with

taken now. others “principally involved” the developI therefore make the following proposals: ment of plans whereby such peaceful use The Governments principally involved, to 0! atomic energy would be expedited.

the extent permitted by elementary pru- Of those “principally involved” the Soviet dence, to begin now and continue to make Union must, of course, be one.

joint contributions from their stockpiles of I would be prepared to submit to the normal uranium and fissionable materials Congress of the United States, and with to an International Atomic Energy Agency. every expectation of approval, any such plan We would expect that such an agency would that would: be set up under the aegis of the United Na- First—encourage world-wide investigation

tions. into the most effective peacetime uses of The ratios of contributions, the procedures _fissionable material; and with the certainty and other details would properly be within that they had all the material needed for

788 DOCUMENTS OF AMERICAN HISTORY the conduct of all experiments that were atomic bomb, the United States does not

appropriate; wish merely to present strength, but also

Second—begin to diminish the potential the desire and the hope for peace. destructive power of the world’s atomic The coming months will be fraught with

stockpiles ; fateful decisions. In this Assembly; in the

Third—allow all peoples of all nations to capitals and military headquarters of the see that, in this enlightened age, the great world; in the hearts of men everywhere, powers of the earth, both of the East and be they governors or governed, may they be of the West, are interested in human aspira- the decisions which will lead this world out

tions first, rather than in building up the of fear and into peace.

armaments of war; To the making of these fateful decisions, Fourth—open up a new channel for peace- the United States pledges before you—and

ful discussion, and initiate at least a new therefore before the world—its determinaapproach to the many difficult problems that tion to help solve the fearful atomic dimust be solved in both private and public lemma—to devote its entire heart and mind conversations, if the world is to shake off to find the way by which the miraculous the inertia imposed by fear, and is to make inventiveness of man shall not be dedicated

positive progress toward peace. to his death, but consecrated to his life... . Against the dark background of the 611. THE BRICKER AMENDMENT January-February, 1954 (Congressional Record, January 28, February 4, 26, 1954) The internationalist tendency of American for- Amer. Soc. of Int'l. Law Proceedings, 1952, p. eign policy did not receive unanimous support 43; H. S. Commager, “The Perilous Folly of from the American people. A powerful minority Senator Bricker,” Reporter Magazine, October of neo-isolationists sought to check our Increas- 13, 1953. ing involvement in world affairs through the socalled Bricker amendment whose purpose was to

restrict the power of the executive branch to make treaties and agreements that might limit American sovereignty. President Eisenhower ex- A. PROPOSED AMENDMENT

pressed opposition to the Bricker amendment in “Article—

a letter sent to the majority leader of the Senate

on January 25, 1954. The Senate rejected the Sec. 1. Clause 2 of Article VI of the Bricker proposal on February 25 by a vote of Constitution of the United States is hereby

42 to 50. On February 26, Senator Walter F. amended by adding at the end thereof; George proposed a watered-down version of the Notwithstanding the foregoing provisions of

Bricker This an his treatMace de amer afterthe thesta tabaffirmativeamendment. two-thirds majority of version 61 to 30 inreceived its u IS Clause, NOcl ereary first test in the Senate. On the crucial motion to lishment of this Constitution shall be the send the proposed amendment to the states the SUpreme law of the land unless made in vote was 60 to 31, one less than the necessary pursuance of this Constitution. two-thirds majority. This marked the high tide Sec. 2. A provision of a treaty or other of support for the proposal to limit the treaty- international agreement which conflicts with making powers of the President. The whole in- this Constitution shall not be of any force cident is important not only as a manifestation or effect. of the struggle over interventionism in foreign Sec. 3. A treaty or other international policy but also as an example of the recurring hall b fecti nt | struggle for power between the President and agreement Sfan pecome elective as in ern Congress. See G. A. Schubert, Jr., “Politics and law in the United States only through legisthe Constitution: the Bricker Amendment dur- ation by the Congress unless in advising ing 1953,” 16 Journal of Politics, 257; Q. Wright, and consenting to a treaty the Senate, by a “Congress and the Treaty-Making Power,” vote of two-thirds of the Senators present

DULLES’ STRATEGY OF MASSIVE RETALIATION 789 and voting, shall provide that such treaty inevitable reaction would be of major promay become effective as internal law with- portion. It would impair our hopes and plans

out legislation by the Congress. for peace and for the successful achievement Sec. 4. On the question of consenting of the important international matters now to the ratification of a treaty the vote shall under discussion. This would include the be determined by yeas and nays, and the diversion of atomic energy from warlike to names of the persons voting for and against peaceful purposes.

shall be entered on the Journal of the Sen- I fully subscribe to the proposition that

ate. no treaty or international agreement can contravene the Constitution. I am aware B. EISENHOWER LETTER ON THE BRICKER of the feeling of many of our citizens that

AMENDMENT a treaty may override the Constitution. So The White House that there can be no question on this point,

Washington, January 25, 1954. I will gladly support an appropriate amend-

DEAR SENATOR KNOWLAND: ment that will make this clear for all time. In response to your inquiry, I give the Sincerely,

following as my attitude toward the pro- DwIcHT D. EISENHOWER

posal for amending the treaty-making func-

tions of the Federal Government. C. THE GEORGE RESOLUTION

I am unalterably opposed by to the Articl Amendment as reported theBricker Senate“Juriche diciary Committee. It would so restrict the Sec. 1. A provision of a treaty or other conduct of foreign affairs that our country international agreement which conflicts with could not negotiate the agreements necessary this Constitution shall not be of any force for the handling of our business with the _ or effect.

rest of the world. Such an amendment Sec. 2. An international agreement other would make it impossible for us to deal than a treaty shall become effective as ineffectively with friendly nations for our mu- ternal law in the United States only by an

tual defense and common interests. act of the Congress.

These matters are fundamental. We can- Sec. 3. On the question of advising and not hope to achieve and maintain peace if consenting to the ratification of a treaty the we shackle the Federal Government so that vote shall be determined by yeas and nays, it is no longer sovereign in foreign affairs. and the names of the persons voting for and The President must not be deprived of his against shall be entered on the Journal of historic position as the spokesman for the the Senate. nation in its relations with other countries. Sec. 4. This article shall be inoperative

Adoption of the Bricker Amendment in unless it shall have been ratified as an its present form by the Senate would be amendment to the Constitution by the legisnotice to our friends as well as our enemies _latures of three-fourths of the several States abroad that our country intends to withdraw within 7 years from the date of its submis-

from its leadership in world affairs. The sion. 612. SECRETARY DULLES’ STRATEGY OF MASSIVE RETALIATION January 12, 1954 (Department of State Bulletin, Vol. XXX, pp. 107-110) The Eisenhower administration made two that the United States planned in the future to changes in the nation’s military policy. First, the rely on the threat of ‘‘massive retaliation” to size of the military establishment was cut. Sec- ‘deter’? Communist agression. See J. R. Beal, ond, a new emphasis was placed upon atomic John Foster Dulles; W. Reitzel, M. Kaplan and weapons in the nation’s military planning. Sec- C. Coblenz, United States Foreign Policy 1945retary of State Dulles explained these changes as 1955; C. B. Marshall, The Limits of Foreign a new approach to military strategy, declaring Policy; G. F. Kennan, Realities of American

790 DOCUMENTS OF AMERICAN HISTORY Foreign Policy; P. H. Nitze, “Atoms, Strategy be accompanied by understanding of our

and Policy,” 34 Foreign Affairs, 187; T. K. true purposes. Sudden and spectacular F inletter, P ower and Policy; H. A. Kissinger, change had to be avoided. Otherwise, there

reas,’ 33 Foreign Affairs, 416. .

Anary Policy and Defense of the ‘Grey’ might have been a panic among our friends and miscalculated aggression by our enemies. We can, I believe, make a good report in these respects.

We need allies and collective security. We live in a world where emergencies are Our purpose is to make these relations more

always possible, and our survival may de- effective, less costly. This can be done by pend upon our capacity to meet emergen- placing more reliance on deterrent power cles. Let us pray that we shall always have and _ less dependence on local defensive that capacity. But, having said that, it is power. necessary also to say that emergency meas- This is accepted practice so far as local ures—however good for the emergency—do communities are concerned. We keep locks not necessarily make good permanent poli- on our doors, but we do not have an armed cies. Emergency measures are costly; they guard in every home. We rely principally on

are superficial; and they imply that the a community — security system so well enemy has the initiative. They cannot be equipped to punish any who break in and depended on to serve our long-time inter- steal that, in fact, would-be aggressors are

ests. generally deterred. That is the modern way

This “long time” factor is of critical im- of getting maximum protection at a bearable portance. The Soviet Communists are plan- cost. What the Eisenhower administration ning for what they call “an entire historical seeks is a similar international security SySsera,’ and we should do the same. They seek, tem. We want, for ourselves and the other

through many types of maneuvers, gradu- free nations, a maximum deterrent at a ally to divide and weaken the free nations bearable cost. by overextending them in efforts which, as Local defense will always be important. Lenin put it, are “beyond their strength, so But there is no local defense which alone that they come to practical bankruptcy.” will contain the mighty land power of the Then, said Lenin, “our victory is assured.” Communist world. Local defenses must be Then, said Stalin, will be ‘the moment for reinforced by the further deterrent of mass-

the decisive blow.” ive retaliatory power. A potential aggressor In the face of this strategy, measures can- must know that he cannot always prescribe

not be judged adequate merely because battle conditions that suit him. Otherwise, they ward off an immediate danger. It is for example, a potential aggressor, who is essential to do this, but it is also essential glutted with manpower, might be tempted to

to do so without exhausting ourselves. attack in confidence that resistance would When the Eisenhower administration ap- be confined to manpower. He might be plied this test, we felt that some transforma- tempted to attack in places where his su-

tions were needed. It is not sound military periority was decisive. , strategy permanently to commit U. S. land The way to deter aggression is for the free forces to Asia to a degree that leaves us no community to be willing and able to respond strategic reserves. It is not sound economics, vigorously at places and with means of its or good foreign policy, to support perma- own choosing. nently other countries; for in the long run, So long as our basic policy concepts were that creates as much ill will as good will. unclear, our military leaders could not be Also, it is not sound to become permanently _ selective in building our military power. If committed to military expenditures so vast an enemy could pick his time and place and

they lead to “practical bankruptcy.” method of warfare—and if our policy was Change was imperative to assure the to remain the traditional one of meeting stamina needed for permanent security. But aggression by direct and local opposition— it was equally imperative that change should then we needed to be ready to fight in the

Tue GUATEMALAN CRISIS 791 Arctic and in the Tropics; in Asia, the Near nonproductive expenditure of many billions

East, and in Europe; by sea, by land, and have been stopped. Also our armed forces

by air; with old weapons and with new are no longer largely committed to the

weapons... . Asian mainland. We can begin to create a Before military planning could be changed, strategic reserve which greatly improves our

the President and his advisers, as repre- defensive posture. |

sented by the National Security Council, had This change gives added authority to the to take some basic policy decisions. This warning of the members of the United Na-

has been done. The basic decision was to tions which fought in Korea that, if the depend primarily upon a great capacity to Communists renewed the aggression, the retaliate, instantly, by means and at places United Nations response would not neces-

of our choosing. Now the Department of _ sarily be confined to Korea. | Defense and the Joint Chiefs of Staff can I have said in relation to Indochina that, shape our military establishment to fit what if there were open Red Chinese army agis our policy, instead of having to try to be gression there, that would have “erave conready to meet the enemy’s many choices. sequences which might not be confined to

That permits of a selection of military Indochina.” .. .

means instead of a multiplication of means. In the ways I outlined we gather strength As a result, it is now possible to get, and for the long-term defense of freedom. We share, more basic security at less cost. do not, of course, claim to have found some Let us now see how this concept has been magic formula that insures against all forms applied to foreign policy, taking first the Far of Communist successes. It is normal that

East. at some times and at some places there may In Korea this administration effected a be setbacks to the cause of freedom. What major transformation. The fighting has been we do expect to insure is that any setbacks stopped on honorable terms. That was pos- will have only temporary and local signifisible because the aggressor, already thrown cance, because they will leave unimpaired back to and behind his place of beginning, those free world assets which in the long was faced with the possibility that the fight- run will prevail. ing might, to his own great peril, soon spread If we can deter such aggression as would beyond the limits and methods which he had mean general war, and that is our confident

selected. resolve, then we can let time and fundaThe cruel toll of American youth and the mentals work for us....

613. THE GUATEMALAN CRISIS June 30, 1954 (State Department Press Release, June 30, 1954) American diplomats devoted little time to the to stage a successful revolt against the proproblems of Latin America in the years fol- communist government. To allay wide-spread lowing the Second World War. Their activities criticism of American policy, Secretary Dulles centered upon Europe and Asia. During this analyzed the whole Guatemalan situation in a period, communism gained its first foothold radio address of June 30, 1954. See C. Urrutiain Latin America. The tiny state of Guatemala Aparitio, “Guatemala’s Withdrawal from the Orcame under the control of a government willing ganization of Central American States,” 48

and able to do business with the Communist American Journal of International Law, 145; bloc. When Guatemala received a shipment of A. P. Whitaker, The Hemispheric Idea; J. Gilarms from Communist Czechoslovakia, Secre- lin and K. H. Silvert, ‘“Ambiguities in Guatetary of State Dulles reacted vigorously. He mala,” 34 Foreign Affairs, 469. secured the support of all North and South American states except Guatamala for a declara-

tion condemning the spread of Communist in-

fluence to the Western hemisphere, then en- ... In Guatemala, international Com-

couraged anti-communist groups in Guatemala munism had an initial success. It began ten

792 DOCUMENTS OF AMERICAN HISTORY years ago when a revolution occurred in “the domination or control of the political Guatemala. The revolution was not without institutions of any American State by the justification. But the Communists seized on international communist movement... it, not as an opportunity for real reforms, would constitute a threat to the sovereignty but as a chance to gain political power. and political independence of the American Communist agitators devoted themselves States, endangering the peace of America.” to infiltrating the public and private organiza- There was only one American State that tions of Guatemala. They sent recruits to voted against this Declaration. That State Russia and other Communist countries for was Guatemala. revolutionary training and indoctrination in This Caracas Declaration precipitated a

such institutions as the Lenin School in dramatic chain of events. From their EuMoscow. Operating in the guise of “re- ropean base the Communist leaders moved formers” they organized the workers and_ rapidly to build up the military power of peasants under Communist leadership. Hav- their agents in Guatemala. In May a large ing gained control of what they call ‘mass shipment of arms moved from behind the organizations” they moved on to take over Iron Curtain into Guatemala. The shipment the official press and radio of the Guate- was sought to be secreted by false manifests malan Government. They dominated the and false clearances. Its ostensible destina-

Social Security organization and ran the tion was changed three times while en agrarian reform program. Through the tech- route.

nique of the “popular front” they dictated At the same time, the agents of internato the Congress and the President. tional Communism in Guatemala, intensified The judiciary made one valiant attempt efforts to penetrate and subvert the neighto protect its integrity and independence. boring Central American States. They atBut the Communists, using their control of _ tempted political assassinations and political the legislative body, caused the Supreme _ strikes. They used. consular agents for po-

Court to be dissolved when it refused to litical warfare. }

give approval to a Communist-contrived law. Many Guatemalan people protested Arbenz, who until this week was President against their being used by Communist dicof Guatemala, was openly manipulated by tatorship to serve the Communist’s lust for

the leaders of Communism. power. The response was mass arrests, the Guatemala is a small country. But its suppression of constitutional guarantees, the power, standing alone, is not a measure of killing of opposition leaders and other brutal the threat. The master plan of international tactics normally employed by Communism Communism is to gain a solid political base to secure the consolidation of its power.

in this hemisphere, a base that can be used In the face of these events and in accorto extend Communist penetration to the dance with the spirit of the Caracas Declaother peoples of the other American Gov-_ ration, the nations of this hemisphere laid ernments. It was not the power of the Ar- further plans to grapple with the danger. benz Government that concerned us but the The Arbenz Government responded with an

power behind it. effort to disrupt the inter-American system.

If world Communism captures any Amer- Because it enjoyed the full support of Soican State, however small, a new and peril- viet Russia, which is on the Security Counous front is established which will increase cil, it tried to bring the matter before the

the danger to the entire free world and Security Council. It did so without first require even greater sacrifices from the referring the matter to the American re-

American people. gional organization as is called for both by

This situation in Guatemala had become’ the United Nations Charter itself and by so dangerous that the American States could the treaty creating the American Organiza-

not ignore it. At Caracas last March the _ tion. American States held their Tenth Inter- The Foreign Minister of Guatemala openly American Conference. They then adopted connived in this matter with the Foreign a momentous statement. They declared that Minister of the Soviet Union. The two were

AEC DECISION IN OPPENHEIMER CASE 793 in open correspondence and ill-concealed the United Fruit Company. We have urged privity. The Security Council at first voted repeatedly that these disputes be submitted overwhelmingly to refer the Guatemala mat- for settlement to an international tribunal ter to the Organization of American States. or to international arbitration. That is the The vote was ten to one. But that one nega- way to dispose of problems of this sort. But

tive vote was a Soviet veto. this issue is relatively unimportant. All who

Then the Guatemalan Government, with know the temper of the U. 5S. people and a Soviet backing, redoubled its efforts to Government must realize that our overridsupplant the American States system by ing concern is that which, with others, we

Security Council jurisdiction. recorded at Caracas, namely the endangerHowever, last Friday, the United Nations ing by international Communism of the

Security Council decided not to take up the peace and security of this hemisphere.

Guatemalan matter, but to leave it in the The people of Guatemala have now been frst instance to the American States them- heard from. Despite the armaments piled up selves. That was a triumph for the system by the Arbenz Government, it was unable

of balance between regional organization to enlist the spiritual cooperation of the and world organization, which the American people.

States had fought for when the Charter was Led by Colonel Castillo Armas, patriots

drawn up at San Francisco. arose in Guatemala to challenge the Com-

The American States then moved promptly munist leadership—and to change it. Thus,

to deal with the situation. Their “peace the situation is being cured by the Guatecommission” left yesterday for Guatemala. malans themselves. Earlier the Organization of American States Last Sunday, President Arbenz of Guatehad voted overwhelmingly to call a meeting mala resigned and seeks asylum. Others are of their Foreign Ministers to consider the following his example. penetration of international Communism in Tonight, just as I speak, Colonel Castillo

Guatemala and the measures required to Armas is in conference in El Salvador with eliminate it. Never before has there been so Colonel Monzon, the head of the Council clear a call uttered with such a sense of which has taken over the power in Guate-

urgency and strong resolve. mala City. It was this power that the just Throughout the period I have outlined, wrath of the Guatemalan people wrested

the Guatemalan Government and Commu- from President Arbenz who then took flight.

nist agents throughout the world have per- Now the future of Guatemala lies at the sistently attempted to obscure the real disposal of the Guatemalan people themissue—that of Communist imperialism—by selves. It lies also at the disposal of leaders claiming that the United States is only in- loyal to Guatemala who have not treasonably

terested in protecting American business. become the agents of an alien despotism We regret that there have been disputes which sought to use Guatemala for its own between the Guatemalan Government and __ evil ends.

614. ATOMIC ENERGY COMMISSION DECISION IN OPPENHEIMER CASE June 29, 1954 (U. S. Atomic Energy Commission Press Release) Dr. J. Robert Oppenheimer played a major deny him access to restricted government data, role in the development of the atomic bomb by and suspend him from his position as consultant

American scientists during the Second World to the Atomic Energy Program. The decision War. After the war, Dr. Oppenheimer served as was accompanied by an unusual opinion which consultant to the Atomic Energy Commission. pronounced Oppenheimer devotedly loyal, unIn the spring of 1954, a special Personnel Se- usually discreet, and a public servant whcse curity Board headed by Gordon Gray voted 2 contribution could never be repaid. On June 29, to 1 to class Dr. Oppenheimer as a security risk, 1954, the Atomic Energy Commission upheld the

794 DOCUMENTS OF AMERICAN HISTORY decision of the Gray Board by a vote of 4 to 1. versives who place the interests of foreign The majority and minority opinions of the powers above those of the United States, are AEC not only reflected basic differences in ajcoo reasons for disqualification.

judgment of Dr. Oppenheimer but also basic On the basis of the record before the

differences in Judgment concerning the proper Cc - os he t ‘ot of th approach to the problem of security in a OTAEDISSION, comprising the transcript 0 c democratic state. Informed opinion throughout hearing before the Gray Board as well as the country was sharply critical of the conclu. ‘eports of Military Intelligence and the Fedsions of the majority of the Commission. See eral Bureau of Investigation, we find Dr. J. and S. Alsop, We Accuse; W. Gellhorn, Oppenheimer is not entitled to the continued Security, Loyalty, and Science; U. S. Atomic confidence of the Government and of this Energy Commission, In the Matter of J. Robert Commission because of the proof of funda-

oP p me cers - tin of tt Pas Is a mental defectsScientists, in his “character.” ecurl isk?” Bulletin o tomic ee

cc .

June 1954: C. P. Curtis, The Oppenheimer Case; . In " espect to the criterion of mananel Eleanor Bontecou, The Federal Loyalty-Security tions,” we find that his associations with Program; Morton Grodzins, The Loyal and Persons known to him to be Communists the Disloyal; Alan Westin, The Constitution and have extended far beyond the tolerable limits Loyalty Programs; Alan Barth, Government by of prudence and self-restraint which are to

Investigation. be expected of one holding the high positions that the Government has continuously entrusted to him since 1942. These associations have lasted too long to be justified as merely the intermittent and accidental reUNITED STATES ATOMIC ENERGY vival of earlier friendships. a

COMMISSION im wergning rhe matter at issue, we pas have . aken into account Dr. Oppenheimer’s

Washington 25, D. C., June 29, 1954. contributions to the atomic energy program. The issue before the Commission is whe- At the same time, we have been mindful of ther the security of the United States war- the fact that the positions of high trust and rants Dr. J. Robert Oppenheimer’s continued responsibility which Dr. Oppenheimer has

access to restricted data of the Atomic occupied carried with them a commensuEnergy Commission. The data to which Dr. rately high obligation of unequivocal char-

Oppenheimer has had until recently full acter and conduct on his part. A Governaccess include some of the most vital secrets ment official having access to the most sensi-

in the possession of the United States. tive areas of restricted data and to the

Having carefully studied the pertinent innermost details of national war plans and documents—the transcript of the hearings weapons must measure up to exemplary before the Personnel Security Board (Gray standards of reliability, self-discipline, and Board), the findings and recommendation trustworthiness. Dr. Oppenheimer has fallen of the Board, the briefs of Dr. Oppenhei- far short of acceptable standards. mer’s counsel, and the findings and recom- The record shows that Dr. Oppenheimer mendation of the General Manager—we have has consistently placed himself outside the concluded that Dr. Oppenheimer’s clearance rules which govern others. He has falsified

for access to restricted data should not be in matters wherein he was charged with

reinstated. grave responsibilities in the national interest. The Atomic Energy Act of 1946 lays upon In his associations he has repeatedly exhib-

the Commissioners the duty to reach a_ ited a willful disregard of the normal and determination as to “the character, associa- proper obligations of security... . tions, and loyalty” of the individuals engaged Dr. Oppenheimer’s persistent and willful in the work of the Commission. Thus, dis- disregard for the obligations of security is loyalty would be one basis for disqualifica- | evidenced by his obstruction of inquiries by tion, but it is only one. Substantial defects security officials. The record shows . . . inof character and imprudent and dangerous stances where Dr. Oppenheimer has refused associations, particularly with known sub- to answer inquiries of Federal officials on

AEC DECISION IN OPPENHEIMER CASE 795 security matters or has been deliberately most vital defense secrets of the Government

misleading. and who would retain such access if his “Associations” is a factor which, under the clearance were continued, Dr. Oppenheimer law, must be considered by the Commission. has defaulted not once but many times upon

Dr. Oppenheimer’s close association with the obligations that should and must be Communists is another part of the pattern willingly borne by citizens in the national of his disregard of the obligations of secur- service. ity. Concern for the defense and security of Dr. Oppenheimer, under oath, admitted the United States requires that Dr. Oppen-

to the Gray Board that from 1937 to at heimer’s clearance should not be reinstated. least 1942 he made regular and substantial Dr. J. Robert Oppenheimer is hereby contributions in cash to the Communist denied access to restricted data. Party. He has admitted that he was a “fel- Lewis L. Strauss, Chairman. low traveler” at least until 1942. He admits EuGENE M. ZUCKERT, Commissioner. that he attended small evening meetings at JosePpH CAMPBELL, Commusstoner.

private homes at which most, if not all, of DISSENTING OPINION

; ; ; OF HENRY DE WOLF SMYTH

the others present were Communist Party members. He was in contact with officials of

the Communist Party, some of whom had I dissent from the action of the Atomic been engaged in espionage. His activities Energy Commission in the matter of Dr. J. were of such a nature that these Communists Robert Oppenheimer. I agree with the looked upon him as one of their number. “clear conclusion” of the Gray Board that However, Dr. Oppenheimer’s early Com- he is completely loyal and I do not believe munist associations are not in themselves a he is a security risk. It is my opinion that

controlling reason for our decision. his clearance for access to restricted data They take on importance in the context should be restored. of his persistent and continuing association In a case such as this, the Commission with Communists, including his admitted is required to look into the future. It must meetings with Haakon Chevalier in Paris determine whether Dr. Oppenheimer’s conas recently as last December—the same in- tinued employment by the Government of dividual who had been intermediary for the the United States is in the interests of the

Soviet Consulate in 1943. people of the United States. This prediction

On February 25, 1950, Dr. Oppenheimer must balance his potential contribution to wrote a letter to Chevalier attempting “to the positive strength of the country against clear the record with regard to your alleged the possible danger that he may weaken involvement in the atom business.” Che- the country by allowing important secrets valier used this letter in connection with to reach our enemies. his application to the State Department for Since Dr. Oppenheimer is one of the most a United States passport. Later that year knowledgable and lucid physicists we have, Chevalier came and stayed with Dr. Oppen- his services could be of great value to the heimer for several days at the latter’s home. country in the future. Therefore, the only In December 1953, Dr. Oppenheimer visited question being determined by the Atomic with Chevalier privately on two occasions in Energy Commission is whether there is a Paris, and lent his name to Chevalier’s deal- possibility that Dr. Oppenheimer will intenings with the United States Embassy in tionally or unintentionally reveal secret inParis on a problem which, according to Dr. formation to persons who should not have Oppenheimer, involved Chevalier’s clearance. it. To me, this is what is meant within our Dr. Oppenheimer admitted that today he has security system by the term security risk. only a “strong guess” that Chevalier is not Character and associations are important

active in Communist Party affairs. only insofar as they bear on the possibility

These episodes separately and together that secret information will be improperly present a serious picture. It is clear that revealed. for one who has had access for so long to the In my opinion the most important evi-

796 DOCUMENTS OF AMERICAN History dence in this regard is the fact that there consideration of all the relevant information

is no indication in the entire record that as to whether or not there is risk that the Dr. Oppenheimer has ever divulged any se- granting of security clearance would encret information. The past 15 years of his danger the common defense or security.” life have been investigated and _ reinvesti- Application of this standard of overall gated. For much of the last 11 years he has commonsense judgment to the whole record been under actual surveillance, his move- destroys any pattern of suspicious conduct ments watched, his conversations noted, his or catalog of falsehoods and evasions, and mail and telephone calls checked. This pro- leaves a picture of Dr. Oppenheimer as an fessional review of his actions has been able, imaginative human being with normal supplemented by enthusiastic amateur help human weaknesses and failings. In my opin-

from powerful personal enemies. ion the conclusion drawn by the majority

After reviewing the massive dossier and from the evidence is so extreme as to enafter hearing some forty witnesses, the Gray danger the security system... . Board reported on May 27, 1954, that Dr. With respect to the alleged disregard of Oppenheimer “seems to have had a high _ the security system, I would suggest that the degree of discretion reflecting an unusual system itself is nothing to worship. It is a ability to keep to himself vital secrets.” My necessary means to an end. Its sole purpose, own careful reading of the complete dossier apart from the prevention of sabotage, is and of the testimony leads me to agree with to protect secrets. If a man protects the the Gray Board on this point. I am confident secrets he has in his hands and his head, he that Dr. Oppenheimer will continue to keep has shown essential regard for the security to himself all the secrets with which he is system.

entrusted... . In addition, cooperation with security offiThe history of Dr. Oppenheimer’s contri- cials in their legitimate activities is to be

butions to the development of nuclear weap- expected of private citizens and Government

ons stands untarnished. employees. The security system has, how-

It is clear that Dr. Oppenheimer’s past ever, neither the responsibility nor the right associations and activities are not newly dis- to dictate every detail of a man’s life. I covered in any substantia] sense. They have frankly do not understand the charge made been known for years to responsible author- by the majority that Dr. Oppenheimer has ities who have never been persuaded that shown a persistent and willful disregard for they rendered Dr. Oppenheimer unfit for the obligations of security, and that therepublic service. Many of the country’s out- fore he should be declared a security risk. standing men have expressed their faith in No gymnastics of rationalization allow me to

his integrity. accept this argument. If in any recent inIn spite of all this, the majority of the stances, Dr. Oppenheimer has misunderstood Commission now concludes that Dr. Oppen- his obligation to security, the error is occa-

heimer is a security risk. I cannot accept sion for reproof but not for a finding that this conclusion or the fear behind it. In my _ he should be debarred from serving his counopinion the conclusion cannot be supported try. Such a finding extends the concept of

by a fair evaluation of the evidence. “security risk” beyond its legitimate justiTo be effective a security system must be fication and constitutes a dangerous precerealistic. In the words of the Atomic Energy dent.

Commission security criteria: In these times, failure to employ a man

“The facts of each case must be carefully of great talents may impair the strength

weighed and determination made in the and power of this country. Yet I would light of all the information presented, whe- accept this loss if I doubted the loyalty of ther favorable or unfavorable. The judgment Dr. Oppenheimer or his ability to hold his of responsible persons as to the integrity tongue. I have no such doubts. of the individuals should be considered. The I conclude that Dr. Oppenheimer’s emdecision as to security clearance is an over- ployment “will not endanger the common all, commonsense judgment, made after defense and security” and will be “clearly

CoMMUNIST CONTROL ACT OF 1954 197 consistent with the interests of the national I therefore have voted to reinstate Dr. security.” I prefer the positive statement Oppenheimer’s clearance. that Dr. Oppenheimer’s further employment

will continue to strengthen the United States. Henry D. SmytH, Commissioner. 615. COMMUNIST CONTROL ACT OF 1954 August 24, 1954 (Public Law 637, 83rd Congress) The government’s program to prevent subver- with respect to its objectives and methods, sion from within culminated in the Communist and are organized, instructed, and disciControl Act of 1954 outlawing the Communist plined to carry into action slavishly the ray, See Dos. No Sat S78 S05. 85 S/H assignments given them by their hierarchical

munity Act of 1954; C. A. Auerbach, “Commu- chieftains. Unlike political parties, the Comnist Control Act of 1954, 23 U. of Chicago ™unist Party acknowledges no constitutional

Law Review, 173; M. L. Ernst and D. Loth, oF statutory limitations upon its conduct or Report on the American Communist; R. K. upon that of its members. The Communist Carr, The House Committee on Un-American Party is relatively small numerically, and

Activities, 1945-1950. gives scant indication of capacity ever to

attain its ends by lawful political means. The

peril inherent in its operation arises not from its numbers, but from its failure to acknowledge any limitation as to the nature

AN ACT of its activities, and its dedication to the To outlaw the Communist Party, to prohibit proposition that the present constitutional members of Communist organizations from (Government of the United States ultimately serving In certain representative capacities, must be brought to ruin by any available

and for other purposes. ; ,

means, including resort to force and violence.

Sec. 2. The Congress hereby finds and Holding that doctrine, its role as the agency declares that the Communist Party of the of a hostile foreign power renders its exisUnited States, although purportedly a po- tence a clear present and continuing danger litical party, is in fact an instrumentality of to the security of the United States. It is a conspiracy to overthrow the Government the means whereby individuals are seduced of the United States. It constitutes an au- into the service of the world Communist thoritarian dictatorship within a republic, movement, trained to do its bidding, and demanding for itself the rights and privileges directed and controlled in the conspiratorial accorded to political parties, but denying to performance of their revolutionary services. all others the liberties guaranteed by the Therefore, the Communist Party should be Constitution. Unlike political parties, which outlawed.

evolve their policies and programs through Sec. 3. The Communist Party of the public means, by the reconciliation of a wide United States, or any successors of such variety of individual views, and submit those party regardless of the assumed name, whose

policies and programs to the electorate at object or purpose is to overthrow the Govlarge for approval or disapproval, the policies ernment of the United States, or the govand programs of the Communist Party are ernment of any State, Territory, District, or secretly prescribed for it by the foreign possession thereof, or the government of any leaders of the world Communist movement. political subdivision therein by force and

Its members have no part in determining violence, are not entitled to any of the its goals, and are not permitted to voice rights, privileges, and immunities attendant dissent to party objectives. Unlike members upon legal bodies created under the jurisdicof political parties, members of the Com-_ tion of the laws of the United States or any munist Party are recruited for indoctrination _ political subdivision thereof; and whatever

798 DOCUMENTS OF AMERICAN HISTORY | rights, privileges, and immunities which have _ tion having for one of its purposes or objec-

heretofore been granted to said party or any’ tives the establishment, control, conduct, subsidiary organization by reason of the laws _ seizure, or overthrow of the Government of of the United States or any political sub- the United States, or the government of any division thereof, are hereby terminated: State or political subdivision thereof, by the

Provided, however, That nothing in this use of force or violence, with knowledge section shall be construed as amending the of the purpose or objective of such organizaInternal Security Act of 1950, as amended. tion, shall be subject to all the provisions Sec. 4. Whoever knowingly and willfully and penalties of the Internal Security Act.

becomes or remains a member of (1) the of 1950, as amended, as a member of a Communist Party, or (2) any other organiza- ‘“Communist-action” organization. .. .

616. SENATE CENSURE OF SENATOR McCARTHY December 2, 1954 (Senate Resolution 301, 83rd Congress, 2d Session) Early in 1950, Senator Joseph R. McCarthy of Resolved, That the Senator from WisconWisconsin inaugurated a campaign to prove that sin, Mr. McCarthy, failed to cooperate with the government was infested with Communists the Subcommittee on Privileges and Elecand Communist sympathizers. At various times tions of the Senate Committee on Rules and

thereafter, he charged that Communist sym- Administration in clearing up matters repathizers had dictated American policy decisions . BMP ; and that such noted Americans as General ferred to that subcommittee which conGeorge C. Marshall were Communist dupes. cerned his conduct as a Senator and affected McCarthy’s activities reached a climax in a full the honor of the Senate and, instead, rescale investigation of “Communist infiltration peatedly abused the subcommittee and its in the army.” These hearings resulted in charges members who were trying to carry out ason the part of Army Secretary Stevens that signed duties, thereby obstructing the conMcCarthy attempted to secure special privileges stitutional processes of the Senate, and that for his former aide Private G. David Schine and this conduct of the Senator from Wisconsin,

counter charges by Senator McCarthy that Mr. McCarth , , t torial Stevens attempted to hide evidence of commu- rt car ys 1S contrary to senatoria nist infiltration from his committee and the traditions and is hereby condemned. public. On July 30, 1954, Senator Ralph Flan- Sec. 2. The Senator from Wisconsin, Mr. ders of Vermont introduced a resolution in the McCarthy, in writing to the chairman of the

Senate censuring McCarthy for improper con- Select Committee to Study Censure Charges duct especially during the army investigation. (Mr. Watkins) after the Select Committee A Senate Committee headed by Senator Watkins aq issued its report and before the report of Utah recommended censure and the Senate was presented to the Senate charging three

accepted this recommendation by a vote of ; ; 67 to 22. Following this action by the members of the Select Committee with Senate, McCarthy’s influence waned. See deliberate deception and fraud for fail-

J. Anderson and R. W. May, McCarthy; J. R. ure to disqualify themselves; in stating to McCarthy, McCarthyism, the Fight for Amer- the press on November 4, 1954, that the ica; W. F. Buckley and L. B. Bozell, McCarthy special Senate session that was to begin and His Enemies; “McCarthy; A Documented November 8, 1954, was a “lynch party”; Record,” The Progressive, April, 1954; U.S. in repeatedly describing this special Senate Senate Government Operations Committee, 83rd cession as a “lynch bee” in a nationwide wc OnBTeSS en penate ; investigation / on television and radio show on November 7, charges and countercharges Involving Secretary 1954: in stating to the public press on Noof Army Robert T. Stevens . . . and Senator vember 13, 1954, that the chairman of the

Joe McCarthy ... pursuant to S. Res. 189, U. S. Senate Select Committee to Study Censure select Committee (Mr. Watkins) was guilty Charges, 83rd Congress, Hearings .. . pursuant of “the most unusual, most cowardly thing

to S. Res. 301. I’ve heard of” and stating further: “I ex-

BROWN Vv. BOARD OF EDUCATION OF TOPEKA 799 pected he would be afraid to answer the of its recommendations to the Senate, which questions, but didn’t think he’d be stupid characterizations and charges were contained

enough to make a public statement”; and in a statement released to the press and in characterizing the said committee as the inserted in the Congressional Record of “unwitting handmaiden,” “involuntary agent” November 10, 1954, acted contrary to sena-

and “attorneys-in-fact” of the Communist torial ethics and tended to bring the Senate Party and in charging that the said com- into dishonor and disrepute, to obstruct the mittee in writing its report “imitated Com- constitutional processes of the Senate, and munist methods—that it distorted, misrepre- to impair its dignity; and such conduct is sented, and omitted in its effort to manu- hereby condemned. facture a plausible rationalization” in support

617. BROWN v. BOARD OF EDUCATION OF TOPEKA 347 U. S. 483 1954

This case tested the validity of state laws pro- Appeal from the U. S. Dist. Court, District of

viding for racial segregation in the public Kansas.

schools, The Court reversed the doctrine of

Plessy v. Ferguson 163 U. S. 537 that the Warren, C. J. These cases come to us Fourteenth Amendment does not outlaw segre- from the States of Kansas. South Carolina for each race. The Court here ruled that “Sepa- Virginia, and Delaware. They are premised rate educational facilities are inherently un- 0M different facts and different local condiequal.” The Court followed this ruling with tions, but a common legal question justifies another on May 31, 1955, which established the their consideration together in this consoliprinciple that desegregation must proceed with dated opinion.

gation so long as equal facilities are provided Loe. 4

“all ceperate and assigned to refor lower In each of the cases, minors of the courts theSpeed responsibility applying this prin-

ciple: 349 U. S. 294. These rulings inaugurated nero ace, throu e the toe ncturareal Negroes not only in the field of education but admission to the public schools of their

a substantial revolution in the legal status of aa i

in other areas as well. On November 7, 1955, Community on a nonsegregated basis. In each the Interstate Commerce Commission followed instance, they have been denied admission the Court’s reasoning in a ruling that segrega- to schools attended by white children under

NAACP.sb. St, fLous Francia to ‘Ratesy Te cenawas eregation ac: - a1Son cording race.futs, Thisfeauiring segregation allege

Company. Following these decisions, the strug- to deprive the plaintiffs of the equal pro-

gle over segregation shifted from realm of tection the |the d the F Jaw to the realm of politics. See the B. H. Nelson, aws of uncer Fourteenth

The Fourteenth Amendment and the Negro Amendment. In each of the cases other than Since 1920; H. S. Ashmore, The Negro and the the Delaware case, a three-judge federal Schools; P. A. Freund, “Understanding the district court denied relief to the plaintiffs School Decision,” Congressional Record, March on the so-called “separate but equal” doc28, 1956; J. D. Hyman, “Segregation and the trine announced by this Court in Plessy v.

eee Amendment, Mt Vanderbilt L. Ferguson, 163 U.S. 537. Under that doctrine, Brie} for “ippellante tn the case of Brown. equality of treatment is accorded when the Board of Education, filed in the U. S. Supreme races are provided substantially equal facilCourt, November 16, 1953. Thurgood Marshall, Ities, even though these facilities be separate. “Supreme Court as Protector of Civil Rights,” In the Delaware case, the Supreme Court of Annals Am. Academy of Pol. and Social Science, Delaware adhered to that doctrine, but or-

May 1951. dered that the plaintiffs be admitted to the

800 DOCUMENTS OF AMERICAN HISTORY white schools because of their superiority to Northern States was generally ignored in the

the Negro schools. congressional debates. Even in the North, the

The plaintiffs contend that segregated conditions of public education did not appublic schools are not “equal” and cannot proximate those existing today. The curricu-

be made “equal,” and that hence they are lum was usually rudimentary; ungraded deprived of the equal protection of the schools were common in tural areas; the laws. Because of the obvious importance of school term was but three months a year the question presented, the Court took ju- in many states: and compulsory school atrisdiction. Argument was heard in the 1952 tendance was virtually unknown. As a con-

Term, and reargument was heard this Term sequence, it is not Surprising that there

on certain questions propounded by the should be so little in the history of the

Court. Fourteenth Amendment relating to its in-

Reargument was largely devoted to the tended effect on public education. circumstances surrounding the adoption of In the first cases in this Court construing the Fourteenth Amendment in 1868. It cov- the Fourteenth Amendment, decided shortly

ered exhaustively consideration of the after its adoption, the Court interpreted it Amendment in Congress, ratification by the as proscribing all state-imposed discriminastates, then existing practices in racial seg- tions against the Negro race. The doctrine

regation, and the views of proponents and of “separate but equal” did not make its opponents of the Amendment. This discus- appearance in this Court until 1896 in the sion and our own investigation convince us case of Plessy v. Ferguson, supra, involving that, although these sources cast some light, not education but transportation. American it is not enough to resolve the problem with courts have since labored with the doctrine which we are faced. At best, they are incon- for over half a century. In this Court, there clusive. The most avid proponents of the have been six cases involving the “separate post-War Amendments undoubtedly intended but equal” doctrine in the field of public them to remove all legal distinctions among education. In Cumming v. Board of Educa-

“all persons born or naturalized in the tion of Richmond County, 175 U. S. 528, United States.” Their opponents, just as and Gong Lum v. Rice, 275 U. S. 78, the certainly, were antagonistic to both the validity of the doctrine itself was not challetter and the spirit of the Amendments and _ lenged. In more recent cases, all on the grad-

wished them to have the most limited effect. uate school level, inequality was found in What others in Congress and the state legis- that specific benefits enjoyed by white stu-

latures had in mind cannot be determined dents were denied to Negro students of

with any degree of certainty. the same educational qualifications. State of

An additional reason for the inconclusive Mussouri ex rel. Gaines v. Canada, 305 U. S.

nature of the Amendment’s history, with 337; Sipuel v. Board of Regents of Unirespect to segregated schools, is the status versity of Oklahoma, 332 U. S. 631; Sweatt of public education at that time. In the - v. Painter, 339 U.S. 629; McLaurin v. OklaSouth, the movement toward free common homa State Regents, 339 U. S. 637. In none schools, supported by general taxation, had of these cases was it necessary to reexamine not yet taken hold. Education of white chil- the doctrine to grant relief to the Negro dren was largely in the hands of private plaintiff. And in Sweatt v. Painter, supra, the groups. Education of Negroes was almost Court expressly reserved decision on the nonexistent, and practically all of the race question whether Plessy v. Ferguson should were illiterate. In fact, any education of Ne- be held inapplicable to public education.

groes was forbidden by law in some states. In the instant cases, that question is Today, in contrast, many Negroes have directly presented. Here, unlike Sweatt v. achieved outstanding success in the arts amd Painter, there are findings below that the sciences as well as in the business and pro- Negro and white schools involved have been fessional world. It is true that public educa- equalized, or are being equalized, with retion had already advanced further in the spect to buildings, curricula, qualifications North, but the effect of the Amendment on and salaries of teachers, and other “tangible”

Brown v. BoarpD OF EDUCATION OF TOPEKA 801 factors. Our decision, therefore, cannot turn in a law school.” In McLaurin v. Oklahoma

on merely a comparison of these tangible State Regents, supra [339 U. 5. 637, 70 factors in the Negro and white schools in- S.Ct. 853], the Court, in requiring that a volved in each of the cases. We must look Negro admitted to a white graduate school instead to the effect of segregation itself be treated like all other students, again

on public education. resorted to intangible considerations: ne _ In approaching this problem, we cannot his ability to study, to engage in discussions

turn the clock back to 1868 when the and exchange views with other students,

Amendment was adopted, or even to 1896 and, in general, to learn his profession.” Such

when Plessy v. Ferguson was written. We considerations apply with added force to must consider public education in the light children in grade and high schools. To of its full development and its present place separate them from others of similar age in American life throughout the Nation. and qualifications solely because of their race Only in this way can it be determined if generates a feeling of inferiority as to. their segregation in public schools deprives these status in the community that may affect plaintiffs of the equal protection of the their hearts and minds in a way unlikely

laws. ever to be undone. The effect of this separaToday, education is perhaps the most im- tion on their educational opportunities was portant function of state and local govern- well stated by a finding in the Kansas case ments. Compulsory school attendance laws by a court which nevertheless felt compelled and the great expenditures for education to rule against the Negro plaintiffs:

both demonstrate our recognition of the “Sepregation of white and _ colored

importance of education to our democratic children in public schools has a detrisociety. ‘It is required in the performance mental effect upon the colored children. of our most basic public responsibilities, The impact is greater when it has the even service in the armed forces. It is the sanction of the law; for the policy of very foundation of good citizenship. Today separating the races is usually interpreted it is a principal instrument in awakening the as denoting the inferiority of the Negro child to cultural values, in preparing him group. A sense of inferiority affects the for later professional training, and in help- motivation of a child to learn. Segregaing him to adjust normally to his environ- tion with the sanction of law, therefore, ment. In these days, it is doubtful that any has a tendency to retard the educational child may reasonably be expected to suc- and mental development of Negro chilceed in life if he is denied the opportunity dren and to deprive them of some of the of an education. Such an opportunity, where benefits they would receive in a racially the state has undertaken to provide it, is integrated school system.” a right which must be made available to Whatever may have been the extent of

all on equal terms. psychological knowledge at the time of We come then to the question presented: Plessy v. Ferguson, this finding is amply

Does segregation of children in public supported by modern authority. Any lanschools solely on the basis of race, even guage in Plessy v. Ferguson contrary to this though the physical facilities and other “tan- finding is rejected.

gible” factors may be equal, deprive the We conclude that in the field of public children of the minority group of equal edu- education the doctrine of “separate but cational opportunities? We believe that it equal” has no place. Separate educational

does. facilities are inherently unequal. Therefore, In Sweatt v. Painter, supra [339 U. S. we hold that the plaintiffs and others simi629, 70 S.Ct. 850], in finding that a segre- larly situated for whom the actions have gated law school for Negroes could not been brought are, by reason of the segregaprovide them equal educational opportuni- tion complained of, deprived of the equal ties, this Court relied in large part on “those protection of the laws guaranteed by the qualities which are incapable of objective Fourteenth Amendment. This _ disposition measurement but which make for greatness makes unnecessary any discussion whether

802 DOCUMENTS OF AMERICAN HIsToRY such segregation also violates the Due _ tion of the laws. In order that we may have Process Clause of the Fourteenth Amend- the full assistance of the parties in formu-

ment. lating decrees, the cases will be restored to Because these are class actions, because the docket, and the parties are requested to of the wide applicability of this decision, and present further argument. . . . The Attorney because of the great variety of local condi- General of the United States is again invited tions, the formulation of decrees in these to participate. The Attorneys General of the cases presents problems of considerable states requiring or permitting segregation in complexity. On reargument, the consideration public education will also be permitted to

of appropriate relief was necessarily sub- appear as amici curiae upon request to do ordinated to the primary question—the con- so by September 15, 1954, and submission

stitutionality of segregation in public edu- of briefs by October 1, 1954. ; cation. We have now announced that such It is so ordered. segregation is a denial of the equal protec-

618. CONGRESSIONAL RESOLUTION ON THE DEFENSE OF FORMOSA January 29, 1955 (Public Law 4, 84th Congress) Communist China threatened in 1955 to attack would gravely endanger the peace and seand overcome the last strongholds of the Chi- curity of the West Pacific Area and parnese nationalist government on Formosa and ticularly of Formosa and the Pescadores: the neighboring Pescadores islands. At the urg- and

ing of President Eisenhower, Congress passed a Whereas the secure ‘on by friendl

resolution declaring that Formosa and_ the Possession yA neighboring islands were essential to American governments of the Western Pacific Island military security and authorizing the President Chain, of which Formosa is a part, is essen-

to use American troops to defend the islands tial to the vital interests of the United

from Communist attack. This is a rare instance States and all friendly nations in or borderof Congressional action giving the President jing upon the Pacific Ocean; and

authority to involve the nation in war at his Whereas the President of the United own discretion. See Doc. No. 593; A. Dean, States on January 6, 1955, submitted to the United States Foreign Policy and Formosa, Senate for its advice and consent to ratifi33 Foreign Affairs, 360; J. W. Ballantine, . Formosa, A Problem for United States Foreign cation a Mutual Defense Treaty between

Policy; R. A. Smith, The Rebirth of Formosa; the United States of America and the

H. Feis, The China Tangle. Republic of China, which recognizes that

an armed attack in the West Pacific area

directed against territories, therein described, in the region of Formosa and the

Pescadores, would be dangerous to the

Whereas the primary purpose of the peace and safety of the parties to the United States, in its relations with all other treaty: Therefore be it nations, is to develop and sustain a just and Resolved by the Senate and House of

enduring peace for all; and Representatives of the United States of

Whereas certain territories in the West America in Congress assembled, That the Pacific under the jurisdiction of the Repub- President of the United States be and he lic of China are now under armed attack, hereby is authorized to employ the Armed and threats and declarations have been and Forces of the United States as he deems are being made by the Chinese Communists necessary for the specific purpose of securing

that such armed attack is in aid of and in and protecting Formosa and the Pescadores preparation for armed attack on Formosa against armed attack, this authority to in-

and the Pescadores. clude the securing and protection of such Whereas such armed attack if continued _ related positions and territories of that area

Tur NATIONAL HIGHWAY PROGRAM 803 now in friendly hands and the taking of President shall determine that the peace and such other measures as he judges to be security of the area is reasonably assured required or appropriate in assuring the de- by international conditions created by action

fense of Formosa and the Pescadores. of the United Nations or otherwise, and This resolution shall expire when the — shall so report to the Congress.

619. THE NATIONAL HIGHWAY PROGRAM February 22, 1955 (84th Congress, Ist Session, House Doc. No. 93) By the mid-fifties, the vast increase in the num- The replacement cost of its drainage and _ ber of automobiles and trucks, the increase in bridge and tunnel works is incalculable. One long-distance driving, and the deterioration of jn every seven Americans gains his livelithe road system, had created a problem of stag- hood and supports his family out of it. But,

gering proportions. As early as the Federal. i t the network is inadequate for Highway Act of 1921, 42 Stat. 212, Congress m arge part, Metwor st q had committed itself to the principle of aid in the Nation S growing needs. the construction of highways, and it was clear in In recognition of this, the governors in any event that the states were unable to assume July of last year at my request began a the burden of road-building on an adequate study of both the problem and methods by scale. President Eisenhower’s message called for which the Federal Government might assist

the expenditure of $101 billion by federal, state. the States in its solution. I appointed in and local governmental units for roads during September the President’s Advisory Comthe ten-year period following 1955. On June 30, ; . 1956, Congress authorized the expenditure of mittee on a N ational Highway Program, $33 billion. Compare this message with that headed by Lucius D. Clay, to work with the of Madison, Doc. 116; Monroe, Doc. 125; and 80VErnors and to propose a plan of action

Jackson, Doc. 138. for submission to the Congress. At the same time, a committee representing departments

and agencies of the National Government was organized to conduct studies coordinated with the other two groups.

To the Congress of the United States: All three were confronted with inescapable Our unity as a nation is sustained by free evidence that action, comprehensive and communication of thought and by easy quick and forward-looking, is needed. transportation of people and goods. The First. Each year, more than 36,000 people ceaseless flow of information throughout the are killed and more than a million injured Republic is matched by individual and com- on the highways. To the home where the

mercial movement over a vast system of tragic aftermath of an accident on an uninterconnected highways crisscrossing the safe road is a gap in the family circle, the country and joining at our national borders monetary worth of preventing that death with friendly neighbors to the north and cannot be reckoned. But reliable estimates

south. place the measurable economic cost of the Together, the uniting forces of our com- highway accident toll to the Nation at more munication and transportation systems are than $4.3 billion a year. dynamic elements in the very name we bear Second. The physical condition of the —United States. Without them, we would present road net increases the cost of vehicle be a mere alliance of many separate parts. operation, according to many estimates, by The Nation’s highway system is a gigantic as much as 1 cent per mile of vehicle travel. enterprise, one of our largest items of capi- At the present rate of travel, this totals tal investment. Generations have gone into more than $5 billion a year. The cost is not its building. Three million three hundred and borne by the individual vehicle operator sixty-six thousand miles of road, traveled alone. It pyramids into higher expense of by 58 million motor vehicles, comprise it. doing the Nation’s business. Increased high-

804 DOCUMENTS OF AMERICAN HISTORY way transportation costs, passed on through gress in 1944 authorized the selection of a each step in the distribution of goods, are special network, not to exceed 40,000 miles paid ultimately by the individual consumer. in length, which would connect by routes, as Third. In case of an atomic attack on our direct as practicable, the principal metropolikey cities, the road net must permit quick tan areas, cities, and industrial centers, serve evacuation of target areas, mobilization of the national defense, and connect with routes defense forces, and maintenance of every of continental importance in the Dominion essential economic function. But the present of Canada and the Republic of Mexico. system in critical areas would be the breeder This national system of interstate highof a deadly congestion within hours of an ways, although it embraces only 1.2 percent

attack. of total road mileage, joins 42 State capital Fourth. Our gross national product, about cities and 90 percent of all cities over 50,000 $357 billion in 1954, is estimated to reach population. It carries more than a seventh

over $500 billion in 1965 when our popula- of all traffic, a fifth of the rural traffic, serves

tion will exceed 180 million and, according 65 percent of the urban and 45 percent of to other estimates, will travel in 81 million the rural population. Approximately 37,600 vehicles 814 billion vehicle-miles that year. miles have been designated to date. This Unless the present rate of highway improve- system and its mileage are presently included ment and development is increased existing within the Federal-aid primary system. traffic jams only faintly foreshadow those of In addition to these systems, the Federal

10 years hence. Government has the principal, and in many

To correct these deficiencies is an obliga- cases the sole, responsibility for roads that tion of government at every level. The high- cross or provide access to federally owned way system is a public enterprise. As the land—more than one-fifth the Nation’s area.

Owner and operator, the various levels of Of all these, the interstate system must government have a responsibility for man- be given top priority in construction planagement that promotes the economy of the ning. But at the current rate of developNation and properly serves the individual ment, the interstate network would not reach user. In the case of the Federal Govern- even a reasonable level of extent and effhment, moreover, expenditures on a highway ciency in half a century. State highway deprogram are a return to the highway user of partments cannot effectively meet the need. the taxes which he pays in connection with Adequate right-of-way to assure control of

his use of the highways. access, grade separation structures, relocation

Congress has recognized the national inter- and realinement of present highways—all est in the principal roads by authorizing two these, done on the necessary scale within an Federal-aid systems, selected cooperatively integrated system, exceed their collective by the States, local units, and the Bureau of capacity.

Public Roads. If we have a congested and unsafe and The Federal-aid primary system as of July inadequate system, how then can we im1, 1954, consisted of 234,407 miles, connect- prove it so that 10 years from now it will be

ing all the principal cities, county seats, fitted to the Nation’s requirements? ports, manufacturing areas, and other traffic A realistic answer must be based on a

generating centers. study of all phases of highway financing, In 1944 the Congress approved the including a study of the costs of completing

Federal-aid secondary system, which on July the several systems of highways, made by 1, 1954, totaled 482,972 miles, referred to the Bureau of Public Roads in cooperation as farm-to-market roads—important feeders with the State highway departments and linking farms, factories, distribution outlets, local units of government. This study, made and smaller communities with the primary at the direction of the 83d Congress in the

system. 1954 Federal-aid Highway Act, is the most Because some sections of the primary sys- comprehensive of its kind ever undertaken. tem, from the viewpoint of national interest, Its estimates of need show that a 10-year are more important than others, the Con- construction program to modernize all our

SALK ANTI-POLIO VACCINE 805 roads and streets will require expenditure of 3. That Federal funds for that portion of $101 billion by all levels of Government. the Federal-aid systems in urban areas not The preliminary 10-year totals of needs by _on the interstate system, now approximately

road systems are: $75 million annually, be continued.

ye 4. That Federal funds for forest highways

. ; year rate.

Billions be continued at the present $22.5 million per Interstate (urban $11, rural $12.billion)... $23

aearenen primary (urban $10, rural $20 30 Under these proposals, the total Federal Federal-aid secondary (entirely rural) .... 15 expenditures through the 10-year period ___. ~—-would be:

Subtotal of Federal-aid systems (urban Billions $21, rural $47 billion) .............. 68 Other roads and streets (urban $16, rural Interstate system Coe ee eee ee eevee. $25,000

$17 billion) ....................... 33 Federal-aid primary and secondary .. 5.250 _._.._—s—« Fedeeral-aid urban .................. . 750

Total of needs (urban $37, rural $64 Forest highways ................... 225

billion) ....0...................... 101 Total oo... 0. ee eee 31.225

The Governors’ Conference and the Presi- The extension of necessary highways in dent’s Advisory Committee are agreed that the Territories and highway maintenance and the Federal share of the needed construction improvement in National Parks, on Indian

program should be about 30 percent of the lands and on other public lands of the total, leaving to State and local units re- United States will continue to be treated in sponsibility to finance the remainder. the budget for these particular subjects. The obvious responsibility to be accepted A sound Federal highway program, I beby the Federal Government, in addition to lieve, can and should stand on its own feet, the existing Federal interest in our 3,366,000- with highway users providing the total dol-

mile network of highways, is the develop- lars necessary for improvement and new ment of the interstate system with its most construction. Financing of interstate and essential urban arterial connections. Federal-aid systems should be based on the In its report, the Advisory Committee planned use of increasing revenues from

recommends: present gas and diesel oil taxes, augmented 1. That the Federal Government assume _ in limited instances with tolls.

principal responsibility for the cost of a I am inclined to the view that it is sounder : modern interstate network to be completed to finance this program by special bond isby 1964 to include the most essential urban sues, to be paid off by the above-mentioned arterial connections; at an annual average revenues which will be collected during the cost of $2.5 billion for the 10-year period. useful life of the roads and pledged to this 2. That Federal contributions to primary purpose, rather than by an increase in genand secondary road systems, now at the rate eral revenue obligations. . . . authorized by the 1954 act of approximately

$525 million annually, be continued. Dwicut D. EISENHOWER.

620. SALK ANTI-POLIO VACCINE April 13, 1955 (New York Times, April 13, 1955) A great advance in medical science was made in National Foundation for Infantile Paralysis on 1954 when Dr. Jonas Salk discovered an anti- April 13, 1955. Within two years the vaccine

polio vaccine. This vaccine was tested in the had been made available to all children and spring of 1954 on more than 1,800,000 children. a good proportion of adults. The results of this test were announced by the

806 DOCUMENTS OF AMERICAN HISTORY REPORT OF THE NATIONAL FOUNDATION assessed through specific studies of the cause

FOR INFANTILE PARALYSIS and extent of absenteeism from school folDuring the spring of 1954 an extensive lowing inoculation in Pittsburgh and Schefield trial of the prophylactic effectiveness of nectady, N. Y. The experience was identical

formalin inactivated poliomyelitis vaccine, as vaccinated and control subjects and no developed by Dr. Jonas Salk and his associ- significant reactions were observed. tae ates, was initiated by the National Founda- The second problem in evaluation was con-

tion for Infantile Paralysis. cerned with the discovery and investigation

The Poliomyelitis Vaccine Evaluation Cen- of all cases of poliomyelitis or suspected

ter was established at the University of Polomyelitis in the study population. The Michigan for the purpose of impartially col- varlous steps in_ the investigation are dislating and analyzing data collected through cussed at length 0 t he report, but consisted the combined efforts of many thousands of essentially In the initial case report; clinical health department workers, practicing physi- epidemiological report; muscle evaluation by cians, physical therapists and laboratory one of sixty-seven specially trained physical people scattered through the 211 participat- therapists ten to twenty days and fifty to

ing study areas in forty-four states. . . . seventy days after onset of lness ; the reThe tremendous clinic program was ac- Vi of these findings by clinical experts; complished according to plan during April, 24 the laboratory study of stool and blood

May and June... . samples from the patient, for the isolation of The first problem of evaluation was that poliomyelitis oF other varus and the search of collecting and verifying basic information for poliomyelitis anti-bodies. An important

on each of the 1,829,916 children in the phase to all the above studies and applying study population. These data, which included particularly to the work of the PT (physical the name, address, age, sex, history of polio therapist ) aud laboratories was the attempt or other crippling conditions, participation to standardize the procedures used mm all status and dates of vaccination, if any, for areas, S0 that the findings would be directly each child, were transferred to punch cards, comparable in all segments of the study. and tables describing the population were Finally, rigid criteria were established for prepared which would serve as the denomina- reaching the final diagnosis. Each study Case tors over which the discovered cases of polio was finally classified before the vaccination would be placed for the determination of status was revealed, thus assuring unbiased

polio attack rates in vaccinated vs. control interpretation of all data... . and in other segments of the population. The next step was to examine the effect of During December, 1954, an interview survey vaccine with reference to the specific type was conducted on 1,100 study families in ten of poliomyelitis virus isolated... .

states in order to gain more insight into the On this basis, it may be suggested that differences existing between participants and vaccination was 80-90 per cent effective nonparticipants. This demonstrated differ- against paralytic poliomyelitis; that it was ences in income level, community activity, 60 to 70 per cent effective against disease health conveniences, education level, etc., caused by Type I virus and 90 per cent or which in turn assisted the center in deciding more effective against that of Type II and what control population would be most use- Type III virus. The estimate would be more

ful, in the observed control areas. secure had a larger number of cases been The question of safety of the vaccine was available.

Forp FouNDATION GRANT TO EDUCATION 807 621. FORD FOUNDATION GRANT TO EDUCATION December 13, 1955 (New York Times, December 15, 1955) Private philanthropic foundations played an in- faculty salaries. In a statement at that time creasingly important role in American life after Henry Ford 2d, Chairman of the board of the Second World War. The largest of these trustees said: organizations was the Ford Foundation. In 1955, “All the objectives of higher education the Ford Foundation allocated $500 million to ultimately depend upon the quality of teachimprove the quality of higher education and. In th _ f the foundation’s trusmedicine in the United States. Money granted ing. tn the opinion of the . the colleges and universities was to be used tees, private and corporate philanthropy can largely for increases in salaries of teachers. See make no better investment of its resources D. McDonald, The Ford Foundation; A. Flex- than in helping to strengthen American edu-

ner, Funds and Foundations. cation at its base—the quality of its teaching. ...

“Nowhere are the needs of the private colleges more apparent than in the matter of faculty salaries. Merely to restore professors’ salaries to their 1939 purchasing power

STATEMENT BY THE TRUSTEES : ; oF THE FORD FOUNDATION would require an average increase of at least

20 per cent. Even this would not bring To supplement and encourage the efforts teachers in our private colleges to their

of the American people in meeting problems economic position before World War II in

affecting the progress of the whole nation, relation to that of other professions and the trustees of the Ford Foundation have occupations. They have not begun to share approved special appropriations of $500,000,- the benefits of the expanded productive 000 for privately supported institutions in power of this nation, and the whole educa-

communities all over the land. tional system suffers from this fact.

This sum is in addition to new appropri- “Industry, commerce, government, the ations for projects under the foundation’s rts, the sciences and the professions—inestablished program, the total of which was deed our whole way of life—depends heavily

approximately $30,000,000. upon the quality of our education. Recogniz-

The $500,000,000 appropriated for the ing this fact, the trustees of the Ford Foundaspecial programs, which will be paid out tion want to do everything they can to emover the next eighteen months, includes: phasize the cardinal importance of the college $210,000,000 for grants to 615 regionally teacher to our society.” accredited privately supported liberal arts Shortly after this announcement an adviand science colleges and universities in the sory committee was formed to study the United States to help them raise teachers’ problem, recommend a list of colleges which salaries. This supplements the $50,000,000 should receive the grants, and suggest a appropriated last spring for teachers’ sala- method by which the funds could be most

ries. effectively allocated... . $200,000,000 for approximately 3,500 pri- The program recommended by the advivately supported hospitals to help them im- sory committee was approved by the Trusprove and extend their services to the public. tees and consists of two parts: $90,000,000 for privately supported medi- A sum approximating its 1954-55 payroll cal schools to help them strengthen their for instruction in the liberal arts and sciences

instruction. would be given to each of the 615 private, In March, ‘1955, the trustees announced _ regionally accredited, four-year colleges and an appropriation of $50,000,000 to be spent universities in the United States. The income in helping America’s privately supported col- from the endowment grant would be used

leges and universities raise the level of their for increasing faculty salaries. The total

808 DOCUMENTS OF AMERICAN HIsToRY amount appropriated for these grants is were selected by the advisory committee on

$2 10,000,000. the basis of replies to questionnaires sent to An additional sum approximating one-half every regionally accredited privately supof last year’s faculty salaries in the liberal ported college and university in the country. arts and sciences would be given to 126 insti- The Committee emphasized that “it did not

tutions which have led the way in their re- attempt to compare the caliber of these gions in improving the status and compensa- many different colleges, their general exceltion of American college teachers. Income lence or reputation. Indeed, our study confrom this additional grant could be spent by firms the belief so widely held that variety these institutions either for raising faculty of excellence is a healthy aspect of our entire salaries or for other pressing academic needs. system of higher education, whether publicly The total sum appropriated for these grants or privately supported. This variety cannot

is $50,000,000. be readily reduced to mathematical compariThe schools to receive the additional grant sons or scores... . .

622. UNITED STATES v. LATTIMORE 127 Fed. Supp. 405 1955

Senator McCarthy’s drive against alleged “Com- “. . . followed in time, conformed to, munist sympthizers” focused in 1952 upon one complied with and paralleled the positions man, Professor Owen J. Lattimore, distinguished taken, the policies expressed and propaFar Fastern expert at the Johns Hopkins Un Iver ganda issued on the same matters by the sity. Testifying before a Senate subcommittee Government of the Soviet Union, the Com-

in 1952, Lattimore denied under oath that he was a “follower of the Communist line” or a munist Party of the Soviet Union, the

“promoter of Communist causes.” These state- Comintern and its successors, the various ments were used as grounds for a perjury indict- Communist governments, parties and perment against him. Federal Judge Luther Young- sons adhering to Communism and acceptdahl dismissed the charges as too vague to be ing the leadership of the Soviet Commuadjudicated in a court of law. See O. Lattimore, nist Party.” (Count I, paragraph 5). Ordeal by Slander; U. S. Senate Internal Secur- The second count charges that Lattimore

ity Subcommittee of Judiciary Committee, perjured himself when he testified he had Hearings on Subversive Influence in Educational 7 ae

Process .. . Feb. 10-March 10, 1953. never been a promoter of Communist inter-

ests.” Such a person is defined as one who: ‘“. . . Knowingly and intentionally contributed to the growth, enlargement and prosperity of Communism by acting to

YOUNGDAHL, District Judge. further, encourage and advance those obOwen Lattimore was indicted October 7, jJectives of political, diplomatic, military, 1954, on two counts of perjury allegedly economic and social interest to the Govcommitted before the Senate Internal Secu- ernment of the Soviet Union, the Comrity Subcommittee on or about February 27, munist party of the Soviet Union, the

1952. Comintern and its successors, the various The first count charges that Lattimore Communist governments, parties and per-

perjured himself when he denied that he was sons adhering to Communism and accepta “follower of the Communist line.” It avers ing the leadership of the Soviet Commuthat in his positions and policies as to politi- nist party.” (Count II, paragraph 5). . cal, diplomatic, military, economic and social Defendant moved to dismiss the indictmatters, there can be found expressed in his ment, alleging that each of the two counts statements and writings from 1935 to 1950, violate both the First and Sixth Amendments

several hundred instances in which he fol- to the United States Constitution. The

lowed the Communist line, meaning that he: Court’s holding that both counts should be

UNITED STATES V. LATTIMORE 809 dismissed on the ground of vagueness renders always zigzag; and that the Communist line unnecessary a determination of their consti- means the Soviet Communist line and _ all tutionality under the First Amendment... . other organizations that followed the Soviet

When passing upon the Motion to Dis- line. The Government claims a right to miss, ‘“. . . the allegations of the indictment prove, by men who are familiar with the must be accepted as they are written.” This common usage of the phrase and by docuwe do, and are of the opinion that it does ments of defendant’s, that the definition not, as a matter of Jaw, inform the accused found in the indictment was the same definiof the nature and cause of the accusation tion which Lattimore had in mind when he

against him. Neither does it charge an of- testified; that the jury should be left to fense with reasonable clarity so that the determine what is the Communist line, what accused can make his defense, nor furnish it means to follow such a line, what Lattithe accused with such a description of the more understood as the Communist line,

charge that he would be able to avail himself what Lattimore meant by the word “follow,”

of his conviction or acquittal for protection and lastly, having decided the above, that against a further prosecution for the same Lattimore, when he said he was not a fol-

cause. lower of the Communist line, did not at that In upholding the dismissal of the first time believe in the truth of such testimony count in the prior indictment Judge Pretty- according to the meaning he ascribed to man, speaking for the Court of Appeals, these words.

aptly stated, While the proper test of perjury is sub“Not only is it a basic rule that ‘Crimi- jective, insofar as it is based upon the

nal statutes must have an ascertainable understanding of the witness himself regardstandard of guilt or they fall for vague- ing the words that he used, a criminal proseness’, but it is equally well established that cution must have certain objective standards. an indictment must charge an offense with Most often in perjury cases the objective such reasonable certainty that the accused standard is not hard to come by; what the can make his defense. The cases on the accused considered his statements to mean

point are myriad, as reference to any is not in issue since the words or phrases

authority quickly reveals.” involved have one clear, accepted and recog-

Testing the two counts against this prin- nized meaning. Here, the phrase “follower of ciple, the Court is satisfied that they fail to the Communist line” is subject to varying meet the prescribed standard of definiteness interpretations. It has no universally ac-

and so must fall for vagueness. cepted definition. The Government has

Under Count I, perjury is charged to the defined it in one way and seeks to impute its statement by Lattimore that he was not a_ definition to the defendant. Defendant has follower of the Communist line. The Govern- declined to adopt it, offering a definition of

ment supplies a definition of this phrase in his own. It would not necessitate great inthe indictment. The Government is prompt genuity to think up definitions differing from to concede that no such definition was pre- those offered either by the Government or sented to the defendant at the Committee defendant. By groundless surmise only could hearing in 1952; that it was formulated after the jury determine which definition defend-

Lattimore testified; that it was prepared ant had in mind. after independent research conducted by the The Court cannot escape the conclusion United States Attorney’s Office. The sources that “follower of the Communist line” is not

of such research, however, do not appear. a phrase with a meaning about which men The Government contends that it is a matter of ordinary intellect could agree, nor one of common knowledge as to what is meant which could be used with mutual underby “follower of the Communist line” and standing by a questioner and answerer unless that people differ but little in their under- it were defined at the time it were sought standing of the term; that it is not a mini- and offered as testimony. This count, even mal requirement of following the Communist with its apparent definition, is an open invi-

line to zig and zag with it, since it does not tation to the jury to substitute, by conjec-

810 DOCUMENTS OF AMERICAN HISTORY ture, their understanding of the phrase for (promoting Communist interests) could that of the defendant. The meaning of such have been so attained had not the commena phrase varies according to a particular indi- _tator been both aware of what the Commuvidual’s political philosophy. To ask twelve nists were asserting during this extended jurors to agree and then decide that the defi- period, and then knowingly adhered to these nition of the Communist line found in the assertions (followed the Communist line). If indictment is the definition that defendant defendant had contradicted the Communists’ had in mind and denied believing in, is to assertions, he could hardly be said to have ask the jury to aspire to levels of insight to promoted their interests. _ which the ordinary person is incapable, and Count II, thus dependent upon Count JI, upon which speculation no criminal indict- cannot stand, being anchored to, partaking ment should hinge. We cannot debase the of, and plagued by, all its vagueness and

principle that: indefiniteness. While some paragraphs of “The accused is entitled under the Con- Count II specifically refer to Count I, either stitution to be advised as to every element for the definition of the Communist line or in respect to which it is necessary for him for topical references wherein defendant pro-

to prepare a defense.” moted Communist interests, all of the para-

When elements in an indictment are so graphs, realistically appraised, are rooted in, easily subject to divergent interpretation, and presume a prior finding of, the meaning the accused is not adequately apprised of of the phrase “follower of the Communist

the charges as to enable him to prepare a line.” defense. It therefore fails to conform to the The charges here serve only to inform the requirements of the Sixth Amendment and defendant that his sworn statements are to Federal Rules. It cannot be cured by a bill be tested against all his writings for chance

of particulars. parallelism with, or indirect support of, The second count charges that Lattimore Communism regardless of any deliberate inperjured himself when he testified he had _ tent on his part. They demonstrate that the never been a “promoter of Communist inter- Government seeks to establish that at some

est.” time, in some way, in some places, in all his This entire perjury indictment arises out vast writings, over a fifteen-year period, Lat-

of, and is essentially founded upon, the’ timore agreed with something it calls and statements, correspondence, and editorial personally defines as following the Commucomments of defendant. It does not rest nist line and promoting Communist interests. upon alleged acts of espionage or such an Jury inquiries would be limitless. No act as membership in the Communist party. charge by the Court could embody objective The Government pointed to the activities of | standards to circumscribe and guide the jury an espionage agent as an example of how one’ in its determination of what the witness might knowingly promote Communist inter- might have meant regarding words he used.

ests without also being a knowing follower With so sweeping an indictment with its of the Communist line—whatever that may many vague charges, and with the existing be. But the Government was quick to state atmosphere of assumed and expected loaththat it was not charging defendant with ing for Communism, it would be neither surbeing an espionage agent. It should be kept prising nor unreasonable were the jury subin mind that under this count only written consciously impelled to substitute its own comments and opinions are involved and are __ understanding for that of defendant.

said to have produced a certain effect, To require defendant to go to trial for pernamely, to have promoted Communist inter- jury under charges so formless and obscure

ests. Such writings and comments are not as those before the Court would be unalleged to have produced the designated re- precedented and would make a sham of the

sult over a short period of time, and in iso- Sixth Amendment and the Federal Rule lated instances, but over a fifteen-year requiring specificity of charges. period. By no stretch of the imagination can The indictment will therefore be diswe comprehend how this consistent result missed.

CONSTITUTION OF THE AFL-CIO 811 623. CONSTITUTION OF THE AFL-CIO 1955

(Report of the First Constitutional Convention of the AFL-CIO, 1955) Labor’s civil war ended in 1955 when the Amer- We shall combat resolutely the forces ican Federation of Labor and the Congress of which seek to undermine the democratic inIndustrial Organizations merged into a single ctitutions of our nation and to enslave the federation of unions, the AFL-CIO. See Doc. puman soul. We shall strive always to win Non 0°: This brought into a single labor organ-—¢,4)) respect for the dignity of the human

ization some 15 million workers. The constitu- . .. . ;

tion of the new organization granted to the new individual whom our UNIONS SETVE.

Federation more power over national union With Divine guidance, grateful for the affairs than the constitution of the old American _ fine traditions of our past, confident of meet-

Federation of Labor. See Doc. No. 473. This ing the challenge of the future, we proclaim reflected an increase in the importance of the this constitution... .

functions performed by the central agencies of a the labor movement. See A. J. Goldberg, AFL- ARTICLE 11. Objects and Principles CIO Labor United; E. Levinson, Labor on the , . . ,

March; J. Siedman, American Labor from ae objects and principles of this Federation

Defense to Reconversion. 1. To aid workers in securing improved wages, hours and working conditions with due regard for the autonomy, integrity and jurisdiction of affliated unions.

2. To aid and assist affiliated unions in

PREAMBLE extending the benefits of mutual assistance The establishment of this Federation and collective bargaining to workers and to through the merger of the American Federa- promote the organization of the unorganized tion of Labor and the Congress of Industrial into unions of their own choosing for their Organizations is an expression of the hopes mutual aid, protection and advancement, giv-

and aspirations of the working people of ing recognition to the principle that both

America. craft and industrial unions are appropriate, We seek the fullfillment of these hopes equal and necessary as methods of union

and aspirations through democratic processes organization.

within the framework of our constitutional 3. To affiliate national and international government and consistent with our institu- unions with this Federation and to establish

tions and traditions. such unions; to form organizing committees

At the collective bargaining table, in the and directly affiliated local unions and to community, in the exercise of the rights and _ secure their affiliation to appropriate national

responsibilities of citizenship, we shall re- and international unions affiliated with or sponsibly serve the interests of the American chartered by the Federation; to establish,

people. assist and promote state and local central We pledge ourselves to the more effective bodies composed of local unions of all affiliorganization of working men and women; to ated organizations and directly affiliated local the securing to them of full recognition and unions; to establish and assist trade depart-

enjoyment of the rights to which they are ments composed of affliated national and justly entitled; to the achievement of ever international unions and organizing commithigher standards of living and working con- tees. ditions; to the attainment of security for all 4. To encourage all workers without rethe people; to the enjoyment of the leisure gard to race, creed, color, national origin or which their skills make possible; and to the ancestry to share equally in the full benefits strengthening and extension of our way of of union organization. life and the fundamental freedoms which are 5. To secure legislation which will safe-

the basis of our democratic society. guard and promote the principle of free col-

812 DOCUMENTS OF AMERICAN HISTORY cetive bargaining, the rights of workers, ARTICLE VIII. Executive Council welfare of all the people and to oppose legis. SECTION - iS ne aoe Council: shall lation inimical to these objectives. consist of the President, the Vice Presidents 6 To protect and strengthen our demo- ane the Secretary-Treasurer. , cratic institutions, to secure full recognition BC. 2. tee ecutive poyncl Shall be the and enjoyment of the rights and liberties to governing “This ss ee eration between

armers and consumers, and the security and . .

which we are justly entitled, and to preserve eaneiannes ts authorized and empowered and perpetuate the cherished traditions of 0 take such action and render such decisions

our democracy. as may be necessary to carry out fully and 7. To give constructive aid in promoting adequately the decisions and instructions of the cause of peace and freedom in the world the conventions and to enforce the provisions and to aid, assist and cooperate with free contained in this constitution. Between conand democratic labor movements throughout ventions it shall have th e power to direct the

the world. affairs of the Federation and to take such 8. To preserve and maintain the integrity actions and render such decisions as are of each affliated union in the organization necessary and appropriate to safeguard and

to the end that each affiliate shall respect the ie hai pet interests of the Federation

established bargaining relationships of every ati im i a“ anined. neuen te aie other affiliate and that each affiliate shall re- most appropriate for that - ose y means frain from raiding the established bargaining Src. 3. The Executive Co neil shall meet Same time, to encourage the elimination of UP0? the call of the President at least three conflicting and duplicating organizations and designated , he eer deat time and place

jurisdictions through the process of volun- Sec. 4. It 4 hall be the dut of the Executary agreement or voluntary merger in con- tive Council to watch le islative measures

sultation with the appropriate officials of the directly affectine the ; he f 7

Federation, to preserve, subject to the fore- sol y alecting the interests of working

going, the organizing jurisdiction of each people, and to initiate, wherever necessary,

affiliate. such legislative action as the convention may 9. To aid and encourage the sale and use direct. .

of union made goods and union services Sec. 5. The Executive Council shall prethrough the use of the union label and other P4re and present to the convention in printed

symbols; to promote the labor press and form a statement of all matters of interest other means of furthering the education of to the convention and of the activities of the

the labor movement. Federation between conventions.

10. To protect the labor movement from SEC. 6. The Executive Council shall have any and all corrupt influences and from the power to make rules to govern matters conundermining efforts of communist agencies sistent with this constitution and shall reand all others who are opposed to the basic port accordingly to the Federation.

principles of our democracy and free and SEC. 7. It is a basic principle of this Fed-

democratic unionism. eration that it must be and remain free 11. To safeguard the democratic character from any and all corrupt influences and from of the labor movement and to protect the the undermining efforts of communist, fascist autonomy of each affliated national and in-_ or other totalitarian agencies who are op-

ternational union. posed to the basic principles of our democ12. While preserving the independence of racy and of free and democratic trade unionthe labor movement from political control, ism. The Executive Council, when requested to encourage workers to register and vote, to to do so by the President or by any other exercise their full rights and responsibilities member of the Executive Council, shall have of citizenship, and to perform their rightful the power to conduct an investigation, dipart in the political life of the local, state rectly or through an appropriate standing or

and national communities. special committee appointed by the Presi-

CONSTITUTION OF THE AFL-CIO 813 dent, of any situation in which there is rea- ARTICLE XI. Department of Organization

son to believe that any affiliate is dominated, Section 1. The organizing work of this controlled or substantially influenced in the Federation as set forth in Article VIII, Secconduct of its affairs by any corrupt influ- ti5, g° shall be conducted by the Departence, or that the policies or activities of any vent of Organization under the general affiliate are consistently directed toward the supervision of the President. The Departadvocacy, support, advancement or achieve- ment of Organization shall be provided the ment of the Program oF of the purposes of staff and resources necessary to conduct such the Communist Party, any fascist organiza- activities.

tion or other totalitarian movement. Upon Sec. 2, The Department of Organization the completion of such an investigation, m- shall be headed by a Director of Organizacluding a hearing if requested, the Executive tion who shall be appointed by the President Council shall have the authority to make after consultation with the Executive Comrecommendations or give directions to the mittee, subject to the approval of the Execu-

; ive Council... .

affiliate involved and shall have the further tive C 4 authority, upon a two-thirds vote, to suspend

any affiliate found guilty of a violation of , this section. Any action of the Executive ARTICLE XIII. Committees Council under this section may be appealed and staf Departments

to the convention, provided, however, that SECTION 1. The President of the Federasuch action shall be effective when taken and _ tion shall appoint the following standing shall remain in full force and effect pending committees and such other committees as

any appeal. may from time to time be necessary. The SEC. 8. Subject to the provisions of Article President with the approval of the Executive III, Section 7, the Executive Council shall Council may combine standing committees. use every possible means to assist affliated The committees, under the direction of the unions in the organization of the unorganized _ President, and subject to the authority of the

and to organize new national and interna- Executive Council and the convention, shall

tional unions, organizing committees, and carry out their functions as described

directly affiliated local unions... . herein:

SEc. 9. In carrying out the provisions of (a) The Committee on Legislation shall this Article the Executive Council shall rec- undertake to carry out the policies and proognize that both craft and industrial unions grams of the Federation in the Congress

are appropriate, equal and necessary as and in the legislatures of state and local methods of trade union organization and that governments;

all workers whatever their race, color, creed (b.) The Committee on Civil Rights shall or national origin are entitled to share in the be vested with the duty and responsibility to full benefits of trade union organization. assist the Executive Council to bring about Sec. 10. A majority of the members of the at the earliest possible date the effective imExecutive Council shall constitute a quorum plementation of the principle stated in this for the transaction of the business of the constitution of non-discrimination in accord-

Council. ance with the provisions of this constitution;

Sec. 11. The Executive Council shall have (c) The Committee on Political Educathe power to file charges and conduct hear- tion shall be vested with the duty and reings on such charges against any Executive sponsibility to assist the Executive Council Officer of the Federation or other member of in meeting the need for sound political eduthe Executive Council on the ground that cation and in bringing about the effective such person is guilty of malfeasance, or mal- implementation of the objectives stated in administration, and to make a report to the this constitution of encouraging workers to convention recommending appropriate action. register and vote, to exercise their full rights

The Executive Council must serve such and responsibilities of citizenship and to perofficer with a copy of the written charges a form their rightful part in the political life reasonable time before the hearing. .. . of the city, state, and national communities;

814 DOCUMENTS OF AMERICAN HisToORY (d) The Committee on Ethical Practices est in providing the nation with the highest shall be vested with the duty and responsi- standard of education at all levels;

bility to assist the Executive Council in (g) The Committee on Social Security carrying out the constitutional determination shall have the responsibility of providing

of the Federation to keep the Federation guidance and information in the fields of

free from any taint of corruption or com- social insurance and welfare; munism, in accordance with the provisions (h) The Committee on Economic Policy

of this constitution. shall undertake to recommend programs and (e) The Committee on International Af- policies toward the end of promoting prosfairs shall be concerned with international perity, full employment and full utilization

developments facing our nation and the of our resources... . Federation’s relationships with the inter-

national trade union movement; ARTICLE XVI. Amendments (f{) The Committee on Education shall This constitution can be amended or alpromote the widest possible understanding tered only by the convention, by a twoamong union members of the aims of the thirds vote of those present and voting, Federation, shall assist affiliated unions in either by a show of hands, or, if a roll-call developing their own educational programs is properly demanded as provided in this and shall implement the Federation’s inter- constitution, by such roll-call. .. .

624. COLE v. YOUNG 351 U. S. 536 1956

This case dealt with the application of the In- under § 2 of the Veterans’ Preference Act of ternal Security Act of 1950, Doc. No. 595, to 1944, 58 Stat. 387, held a position in the government employecs who have no contact classified civil service as a food and drug with restricted information. The Court voided inspector for the New Vork District of the that part of Executive Order 10450 which ex- Food and Drug Administration, Department tended the security program to all government employees. Following this decision, President of Health, Education, and Welfare. In NoEisenhower ordered the Attorney General to vember 1953 he was suspended without pay modify the government’s security program to from his position pending investigation to apply only to sensitive positions in which-em- determine whether his employment should ployees have direct contact with restricted gov- be terminated... . ernment documents. See 70 Harvard Law Re- Thereafter the Secretary of the Departview 165; 42 American Bar Ass’n. Journal 764. ment of Health, Education, and Welfare, after “a study of all the documents in [petitioner’s] case,” determined that petitioner’s continued employment was not “clearly conAppeal from the United States Court of Ap- sistent with the interests of ‘national secu-

peals for the District of Columbia. rity’ and ordered the termination of his

employment... . Haran, J. This case presents the question The Act authorizes dismissals only upon a of the meaning of the term “national secu- determination by the Secretary that the disrity” as used in the Act of August 26, 1950, missal is “necessary or advisable in the inter-

giving to the heads of certain departments est of the national security.” That determiand agencies of the Government summary nation requires an evaluation of the risk of suspension and unreviewable dismissal pow- injury to the “national security” that the ers over their civilian employees, when employee’s retention would create, which in deemed necessary “in the interest of the turn would seem necessarily to be a function national security of the United States.” not only of the character of the employee Petitioner, a preference-eligible veteran and the likelihood of his misconducting him-

CoLE v. YOUNG 815 self, but also of the nature of the position and the other 3, with international relations, he occupies and its relationship to the “na- internal security, and the stock-piling of tional security.” That is, it must be deter- strategic materials... . mined whether the position is one in which It is clear, therefore, both from the face the employee’s misconduct would affect the of the Act and the legislative history, that “national security.” That of course would ‘national security” was not used in the Act not be necessary if “national security” were in an all-inclusive sense but was intended to used in the Act in a sense so broad as to be refer only to the protection of “sensitive” involved in all activities of the Government, activities. It follows that an employee can

for then the relationship to the “national be dismissed “in the interest of the national security” would follow-from the very fact of | security” under the Act only if he occupies employment. For the reasons set forth be- a “sensitive” position, and thus that a condi-

low, however, we conclude (1) that the tion precedent to the exercise of the disterm “national security” is used in the Act missal authority is a determination by the in a definite and limited sense and relates agency head that the position occupied is one

only to those activities which are directly affected with the “national security.” ... concerned with the Nation’s safety, as dis- From our holdings (1) that not all posi-. tinguished from the general welfare; and (2) tions in the Government are affected with that no determination has been made that the “national security” as that term is used petitioner’s position was affected with the in the 1950 Act and (2) that no determina“national security” as that term is used in tion has been made that petitioner’s position the Act. It follows that his dismissal was not was one in which he could adversely affect

authorized by the 1950 Act. the “national security,” it necessarily follows As noted above, the issue turns on the _ that petitioner’s discharge was not authorized meaning of ‘“‘national security” as used inthe by the 1950 Act. . . . Since petitioner’s dis-

Act. While that term is not defined in the charge was not authorized by the 1950 Act Act, we think it clear from the statute as a and hence violated the Veterans’ Preference whole that that term was intended to com- Act, the judgment of the Court of Appeals prehend only those activities of the Govern- is reversed and the case is remanded to the ment that are directly concerned with the District Court for further proceedings not protection of the Nation from internal sub- inconsistent with this opinion. version or foreign aggression, and not those Reversed and remanded. which contribute to the strength of the Nation only through their impact on the general CuLaRK, J., dissenting ... The President

welfare. believed that the national security required Virtually conclusive of this narrow mean-_ the extension of the coverage of the Act to ing of “national security” is the fact that had all employees. That was his judgment, not Congress intended the term in a sense broad ours. He was given that power, not us. By enough to include all activities of the Gov- this action the Court so interprets the Act ernment, it would have granted the power to as to intrude itself into presidential policy terminate employment “in the interest of the making. The Court should not do this espe-

national security” to all agencies of the cially here where Congress has ratified the Government. Instead, Congress specified 11 President’s action. As required by the Act named agencies to which the Act should the Executive Order was reported to the Conapply, the character of which reveals, with- gress and soon thereafter it came up for disout doubt, a purpose to single out those agen- cussion and action in both the House and the cies which are directly concerned with the Senate. It was the sense of the Congress at national defense and which have custody that time that the Order properly carried out over information the compromise of which the standards of the Act and was in all remight endanger the country’s security, the spects an expression of the congressional will. so-called “sensitive” agencies. Thus, of the 99 Cong.Rec. 4511-4543, 5818-5990. In addi11 named agencies, 8 are concerned with tion, Congress has made appropriations each military operations or weapons development, subsequent year for investigations, etc., un-

816 DOCUMENTS OF AMERICAN HisTory der its provisions. This in itself “stands as plying the Act to sensitive jobs. One never confirmation and ratification of the action of | knows just which job is sensitive. The janitor

the Chief Executive.” Fleming v. Mohawk might prove to be in as important a spot Wrecking & Lumber Co., 331 U. S. 111, 116. security-wise as the top employee in the The President having extended the cover- building. The Congress decided that the most age of the Act to the Department of Health, effective way to protect the Government was Education, and Welfare, it became the duty through the procedures laid down in the Act.

of the Secretary to dismiss any employee The President implemented its purposes by whenever she deemed it “necessary or ad- requiring that Government employment be visable in the interests of national security.” ‘clearly consistent” with the national securShe made such a finding. It is implicit in her ity. The President’s standard is ‘complete order of dismissal. Her “evaluation as to the and unswerving loyalty” not only in sensitive effect which continuance of [petitioner’s] places but throughout the Government. The employment might have upon the ‘national President requires and every employee security’ ’’ has been made. She decided that should give no less. This is all that the Act he should be dismissed. Under the Act this and the Order require. They should not be determination is ‘conclusive and final.” ... subverted by the technical interpretation the We believe the Court’s order has stricken majority places on them today. We would

down the most effective weapon against affirm. subversive activity available to the Govern- Justices Reed and Minton joined in the

ment. It is not realistic to say that the dissent. Government can be protected merely by ap-

625. PENNSYLVANIA v. NELSON

350 U.S. 497 1956

This case tested the validity of the sedition acts $13,000. The Superior Court affirmed the of Pennsylvania and several other states. The conviction. 172 Pa.Super. 125. The Supreme Court declared that the defense of the federal Court of Pennsylvania, recognizing but not government from sedition was properly a func- reaching many alleged serious trial errors tion of the federal government rather than the and conduct of the trial court infringing states, and concluded that since Congress had ae preempted the field with a whole series of laws, UPO? respondent Ss right to due PTOCess of the sedition acts of the various states were aw, decided the case on the narrow issue of void. For an earlier example of this reasoning, supersession of the state law by the Federal see Prigg v. Pennsylvania, Doc. 158. See Hunt, Smith Act. In its opinion, the court stated: “Federal Supremacy and State Legislation,” 53 ‘And, while the Pennsylvania statute

Michigan Law Rev., 407. proscribes sedition against either the Government of the United States or the Government of Pennsylvania, it is only alleged sedition against the United States with which the instant case is concerned. Appeal from the decision of the Pennsylvania Out of all the voluminous testimony, we

State Supreme Court. have not found, nor has anyone pointed

WarrEN, C. J. The respondent Steve Nel- to, a single word indicating a seditious son, an acknowledged member of the Com- act or even utterance directed against munist Party, was convicted in the Court of the Government of Pennsylvania.” Quarter Sessions of Allegheny County, Penn- The precise holding of the court, and all that: sylvania, of a violation of the Pennsylvania is before us for review, is that the Smith Act Sedition Act and sentenced to imprisonment of 1940, as amended in 1948, which prohibits for twenty years and to a fine of $10,000 the knowing advocacy of the overthrow of

and to costs of prosecution in the sum of the Government of the United States by

, PENNSYLVANIA V. NELSON 817 force and violence, supersedes the enforce- organizations who have not been registered

ability of the Pennsylvania Sedition Act by their organization must register as indiwhich proscribes the same conduct... . viduals. Failure to register in accordance Where, as in the instant case, Congress with the requirements of Sections 786-787 1S has not stated specifically whether a federal punishable by a fine of not more than $10,000

statute has occupied a field in which the for an offending organization and by a fine States are otherwise free to legislate, different of not more than $10,000 or imprisonment criteria have furnished touchstones for deci- for not more than five years or both for an

sion. Thus, individual offender—each day of failure to “Ttjhis Court, in considering the valid- register constituting a separate offense. And

ity of state laws in the light of ... the Act imposes certain sanctions upon both federal laws touching the same subject, “action” and “front” organizations and their has made use of the following expres- members. The Communist Control Act of sions: conflicting; contrary to; occupy- 1954 declares “that the Communist Party ing the field; repugnance; difference; of the United States, although purportedly irreconcilability; inconsistency; viola- a political party, is in fact an instrumentality tion; curtailment; and interference. But of a conspiracy to overthrow the Governnone of these expressions provides an ment of the United States” and that “its role infallible constitutional test or an exclu- as the agency of a hostile foreign power sive constitutional yardstick. In the final renders its existence a clear present and

analysis, there can be no one crystal continuing danger to the security of the

clear distinctly marked formula.” Hines United States.” It also contains a legislative

v. Davidowitz, 312 U. S. 52, 67, 61. finding that the Communist Party is a

And see Rice v. Santa Fe Elevator Corp., ‘‘‘Communist-action’ organization” within 331 U. S. 218, 230-321. In this case, we the meaning of the Internal Security Act of think that each of several tests of super- 1950 and provides that “knowing” members

session is met. of the Communist Party are “subject to all First, {t]he scheme of federal regulation the provisions and penalties” of that Act. It [is] so pervasive as to make reasonable the furthermore sets up a new classification of inference that Congress left no room for the ‘“Communist-infiltrated organizations” and States to supplement it.” Rice v. Santa Fe provides for the imposition of sanctions Elevator Corp., 331 U. S. at page 230. The against them. Congress determined in 1940 that it was We examine these Acts only to determine

necessary for it to reenter the field of the congressional plan. Looking to all of antisubversive legislation, which had been them in the aggregate, the conclusion is in-

abandoned by it in 1921. In that year, escapable that Congress has intended to ocit enacted the Smith Act which proscribes cupy the field of sedition. Taken as a whole, advocacy of the overthrow of any gov-_ they evince a congressional plan which makes ernment—federal, state or local—by force it reasonable to determine that no room has and violence and organization of and know- been left for the States to supplement it. ing membership in a group which so advo- Therefore, a state sedition statute is supercates. Conspiracy to commit any of these seded regardless of whether it purports to acts is punishable under the general criminal supplement the federal law. As was said by conspiracy provisions in 18 U.S.C. §371, Mr. Justice Holmes in Charlestown & West18 U.S.C.A. § 371. The Internal Security Act ern Carolina R. Co. v. Varnville Furniture of 1950 is aimed more directly at Communist Co., 237 U.S. 597, 604.

organizations. It distinguishes between “When Congress has taken the partic‘“Communist-action organizations” and ular subject-matter in hand, coincidence “Communist-front organizations,’ requir- is as ineffective as opposition, and a ing such organizations to register and to file state law is not to be declared a help annual reports with the Attorney General because it attempts to go farther than giving complete details as to their officers Congress has seen fit to go.” and funds. Members of Communist-action Second, the federal statutes “touch a field

818 DOCUMENTS OF AMERICAN HISTORY in which the federal interest is so dominant laws, criminal syndicalist laws, etc. Although that the federal system [must] be assumed all of them are primarily directed against the to preclude enforcement of state laws on the overthrow of the United States Government, same subject.” Rice v. Santa Fe Elevator they are in no sense uniform. And our attenCorp., 331 U. S. at page 230, citing Hines tion has not been called to any case where v. Davidowitz, supra. Congress has devised the prosecution has been successfully dian all embracing program for resistance to rected against an attempt to destroy state or

the various forms of totalitarian aggres- local government. Some of these Acts are

sion. Our external defenses have been studiously drawn and purport to protect strengthened, and a plan to protect against fundamental rights by appropriate definitions, internal subversion has been made by it. standards of proof and orderly procedures in It has appropriated vast sums, not only keeping with the avowed congressional pur-

for our own protection, but also to pose “to protect freedom from those who

strengthen freedom throughout the world. would destroy it, without infringing upon It has charged the Federal Bureau of Investi- the freedom of all our people.” Others are gation and the Central Intelligence Agency vague and are almost wholly without such with responsibility for intelligence concern- safeguards. Some even purport to punish ing Communist seditious activities against mere membership in subversive organizations our Government, and has denominated such which the federal statutes do not punish activities as part of a world conspiracy. It where federal registration requirements have accordingly proscribed sedition against all been fulfilled.

government in the nation—national, state When we were confronted with a like and local. Congress declared that these steps situation in the field of labor-management were taken “to provide for the common de- relations, Mr. Justice Jackson wrote:

fense, to preserve the sovereignty of the “A multiplicity of tribunals and a United States as an independent nation, and diversity of procedures are quite as apt to guarantee to each State a republican form to produce incompatible or conflicting

of government. ... Congress having thus adjudications as are different rules of

treated seditious conduct as a matter of vital substantive law.” national concern, it is in no sense a local Should the States be permitted to exercise a enforcement problem. As was said in the concurrent jurisdiction in this area, federal

court below: enforcement would encounter not only the “Sedition against the United States difficulties mentioned by Mr. Justice Jackson,

is not a local offense. It is a crime but the added conflict engendered by differagainst the Nation. As such, it should ent criteria of substantive offenses. be prosecuted and punished in the Fed- Since we find that Congress has occupied eral courts where this defendant has in the field to the exclusion of parallel state fact been prosecuted and convicted and legislation, that the dominant interest of the

is now under sentence. It is not only Federal Government precludes state interimportant but vital that such prosecu- vention, and that administration of state tions should be exclusively within the Acts would conflict with the operation of control of the Federal Government. the federal plan, we are convinced that the

Lee decision of the Supreme Court of Pennsyl-

Third, enforcement of state sedition acts vania is unassailable. presents a serious danger of conflict with the We are not unmindful of the risk of com-

administration of the federal program. ... pounding punishments which would be In his brief, the Solicitor General states created by finding concurrent state power. that forty-two States plus Alaska and Hawaii In our view of the case, we do not reach the have statutes which in some form prohibit question whether double or multiple punishadvocacy of the violent overthrow of estab- ment for the same overt acts directed against lished government. These statutes are enti- the United States has constitutional sanctled anti-sedition statutes, criminal anarchy tion. Without compelling indication to the

FEDERAL AID TO EDUCATION 819 contrary, we will not assume that Congress The judgment of the Supreme Court of intended to permit the possibility of double Pennsylvania is affirmed.

punishment. Cf. Houston v. Moore, 5 Wheat. Affirmed. .

101, 105. senting.

1, 31, 75; Jerome v. United States, 318 U.S. Justices Reed, Burton, and Minton dis-

626. WHITE HOUSE CONFERENCE RECOMMENDATION OF FEDERAL AID TO EDUCATION 1956

(Report of the President’s Committee for the White House Conference on Education) The “baby-bulge” of the forties, which brought education are neutral on the subject of additional millions of children to schools and Federal aid. Generally, they divide into colleges, the rising costs of education, and the three groups: those who favor Federal aid rapid obsolescence of existing facilities created 4, gj] States, for some States, or for none an acute crisis in the decade of the fifties. As at all. The first two groups subdivide still local school authorities found it difficult to raise .; enough money to do the job adequately, de- further as to the purposes for which Federal mand for federal aid became insistent. In aid would be made available and the method 1947-48 the President’s Commission on Higher of apportioning it. Education proposed increased federal spending No matter how we differ on these subjects, for higher education and in 1956 the President’s most people agree that they do not want Committee for the White House Conference.on federal control of our schools. Some insist, Education advocated an expanded program of however, that the Federal Government must fede ral support for primary and secondary edu- exercise enough supervision over any aid cation. President Eisenhower proposed a $2 ; . . billion school aid program in 1956. Congress had provided to insure its use for the purpose not acted on the proposal by the middle of 1957, intended, but they reject any Federal conSee Higher Education for Democracy: A Report trol over the curriculum. of the President’s Commission on Higher Edu- Some ask, If the children in the States of cation; Eisenhower Message to Congress on least wealth are to have adequate educational Education, January 12, 1956; “Federal Subsidy opportunities, what alternative to Federal for Higher Education,” Congressional Digest, gid is available? Those concerned about the Vol. 34, p. 193. H. 5. Commager, “The Univer- legal obstacles to greater State and local the Centennial Symposium of the Continuing support for schools ask, can Fed eral aid be Education Service of Michigan State College; provided in such a way that it will encourage W. Anderson, The Nation and the State, Rivals rather than discourage State and local efforts

sity and the Commonwealth,” Proceedings of .

or Partners. to eliminate these obstacles? . Numerous arguments have been advanced for and against Federal aid for the public

schools. The controversy usually focuses on the difference in financial ability among the At the present time, the Federal Govern- States and the possibility of Federal control.

ment provides. about 3 per cent of the These arguments will not be reviewed berevenue available to the public schools. This cause they have already been presented in aid is limited to certain special purposes such numerous published sources. as vocational education, school lunches, and Many opponents of Federal aid argue that aid for districts in federally impacted areas. mone of the States should receive Federal aid Numerous proposals have been made for for schools. A majority of this Committee is increasing the participation of the Federal not persuaded by those arguments because Government in the financing of the public the evidence is clear that a few States are

schools. so lacking in economic ability that they canFew persons interested in the financing of not finance an adequate system of public

820 DOCUMENTS OF AMERICAN HISTORY education without a tax effort which would it. While it may be that there is in some be so excessive that it might retard economic States a political determination sufficiently

development. The evidence indicates the strong to overcome obstacles which now differences among the States in economic prevent needed school construction, most ability are declining but that large disparities States, under their present constitutional and still exist, and at the present rate of progress statutory limitations, are unable to use their it will take some years for them to disappear. fiscal resources in time to house many of the We do not believe that adequate educational children now enrolled.

Opportunities should be denied to the chil- This Committee believes that Federal aid dren of any State if the people of that State for school construction should be made avail-

make every reasonable effort and fail solely able on a limited basis to all States and because of lack of fiscal ability. If it can be Territories and the District of Columbia to assumed that good schools foster the eco- help overcome the present school building nomic development of a State, then the im- emergency. It believes, also, that Federal provement of schools in the States of least funds should be provided under the philosowealth seems mandatory. The long-range phy of encouraging greater use of State and

goal of any Federal aid which may be local funds for school purposes. We believe provided for schools is to eliminate the that the best schools can be produced by

necessity for such aid. continuing to assign to the States and local

Many advocates of Federal aid argue that districts primary responsibility for financing, some of the States—those of least economic organizing, administering, and controlling the ability—should receive financial assistance public schools. The Committee believes that

from the Federal Government. This Com- Federal aid to all the States can be justified, mittee is not persuaded by this argument however, only on a temporary basis to meet because the school building emergency is so an emergency situation such as the present extensive that no State or Territory escapes school building emergency.

627. EISENHOWER’S VETO OF NATURAL GAS BILL February 17, 1956 (84th Congress, 2d Session, House Doc. No. 342) On June 7, 1954, the Supreme Court affirmed amend the Natural Gas Act, as amended. the right of the Federal Power Commission to This I regret because I am in accord with its

regulatecommerce. the price haanwiups gas so inPetroleum co basic objectives. state Co. v. Wis- . . , consin 347 U.S. 672. The producers of natural S ince the passage of this bill 4 body of gas clamored for exemption from such regulation. evidence has accumulated indicating that Their appeals were met by the Natural Gas Private persons, apparently representing only Bill which limited the extent of government a very small segment of a great and vital regulation of the production and distribution of | industry, have been seeking to further their natural gas. President Eisenhower supported the own interests by highly questionable activibill while it was before Congress. But when the _ ties. These include efforts that I deem to be bill came to his desk for signature, the President 4 arrogant and so much in defiance of ac-

was confronted with substantial evidence of ceptable standards of propriety as to risk unlawful lobbying by natural gas bill, producers and creating doubt among .the American people thereupon vetoed the basing his decision not on the content of the bill but on the manner COMCErnINg the integrity of governmental

of its passage. PIOCESSES. Legally constituted agencies of Government are now engaged in investigating this situation. These investigations cannot be con-

cluded before the expiration of the 10-day

To the House of Representatives: period within which the President must act I am unable to approve H. R. 6645, to upon the legislation under the Constitution.

EISENHOWER ON THE MIDDLE EAST CRISIS 821 I believe I would not be discharging my of natural gas which is required under presown duty were I to approve this legislation ent law will discourage individual initiative before the activities in question have been and incentive to explore for and develop new

fully investigated by the Congress and the sources of supply. .

Department of Justice. To do so under such In the long run this will limit supplies of conditions could well create long-term ap- gas, which is contrary not only to the naprehension in the minds of the American _ tional interest but especially to the interest

people. It would be a disservice both to the of consumers. -

people and to their Congress. Accordingly, I I feel that any new legislation, in addition

return H. R. 6645 without my approval. to furthering the long-term interest of conAt the same time, I must make quite clear sumers in plentiful supplies of gas, should that legislation conforming to the basic ob- include specific language protecting conjectives of H. R. 6645 is needed. It is needed sumers in their right to fair prices.

because the type of regulation of producers DwIicHT D. EISENHOWER. 628. EISENHOWER ADDRESS ON THE MIDDLE EAST CRISIS October 31, 1956 (New York Times, November 1, 1956)

The conflict over the partition of Palestine was ‘‘Israel’s Border and Security Problems,” 33 temporarily stilled in 1949 when Israel and the Foreign Affairs, 250. neighboring Arab states signed an armistice agreement sponsored by the United Nations. From 1949 to 1955, the uneasy situation was aggravated by a series of hostile acts by both sides. During this period, Egypt announced her My fellow Americans:

intention to exercise full belligerent rights Tonight I report to you as your President. against Israel, barred Israeli ships from the We all realize that the full and free debate Suez Canal and the Gulf of Aqaba, and engaged of g political campaign surrounds us. But in raids on Israeli border settlements. Israeli the events and issues I wish to place before

troops were equally vigorous in raiding Egyp- . ; h 3 hattian territory. In 1951, the United Nations you this evening ave no Connee ron passed a resolution condemning Egypt for deny- S°€Ver with matters of partisanship. They are ing Israeli ships free access to the Suez Canal. concerns of every American—his present and This action and other efforts to end hostile acts his future.

on both sides failed. In 1956, Egypt aroused the I wish, therefore, to give you a report of fears of the shipping nations of the world by _ essential facts so that you—whether belongnationalizing the Suez Canal. Late in October, ing to either one of our two great parties, or 1956, Israel sent troops into Egypt. Great Brit- 45 neither—may give thoughtful and inain and France joined in the invasion to protect ¢4+med consideration to this swiftly changing

their interest in the operation of the Canal.

President Eisenhower condemned these actions world scene. . . .

and joined with other countries in applying I speak, of course, of the Middle East. pressure through the United Nations to force This ancient crossroads of the world was, as the three nations to evacuate their troops from __ we all know, an area long subject to colonial

Egyptial territory. The United States found rule. This rule ended after World War II herself in the anomalous position of voting with when all countries there won full independ-

the Soviet Union to censure her two major ence.

Pritewitz, Middle that Dilemmas. re Fe Out of the Palestinian mandated territory witz, Diplomacy in the Near and Middle Fast, W#S,borm the new state of Israel. R. Henriques, One Hundred Hours to Suez; . These historic changes could not, however, Abba Eban, The Voice of Israel; U. S. Dept. instantly banish animosities born of the ages.

of State, “The Suez Canal Problem,” Depart- Israel and her Arab neighbors soon found ment of State Publication 6392; M. Dayan, themselves at war with one another. And the

822 DOCUMENTS OF AMERICAN HISTORY Arab nations showed continuing anger toward On Monday, their armed forces penetrated their former colonial rulers, notably France deeply into Egypt and to the vicinity of the

and Great Britain. Suez Canal—nearly 100 miles away.

The United States, through all the years And on Tuesday the British and French

since the close of World War II, has labored Governments delivered a twelve-hour ultirelessly to bring peace and stability to this timatum to Israel and Egypt, now followed

area. up by armed attack against Egypt. We have considered it a basic matter of The United States was not consulted in

United States policy to support the new any way about any phase of these actions. state of Israel and at the same time, to Nor were we informed of them in advance. strengthen our bonds both with Israel and As it is the manifest right of any of these with the Arab countries. But, unfortunately, nations to take such decisions and actions, through all these years, passion in the area it is likewise our right if our judgment so threatened to prevail over peaceful purpose, dictates, to dissent.

and in one form or another, there has been We believe these actions to have been

almost continuous fighting. taken in error, for we do not accept the use

This situation recently was aggravated by of force as a wise or proper instrument for Egyptian policy including rearmament with the settlement of international disputes.

Communist weapons. We felt this to be a To say this, in this particular instance, is misguided policy on the part of the Govern- in no way to minimize our friendship with

ment of Egypt. The state of Israel at the these nations, nor our determination to same time, felt increasing anxiety for its maintain those friendships. safety. And Great Britain and France feared And we are fully aware of the grave anxie-

more and more that Egyptian policies ties of Israel, of Britain and France. We threatened their lifeline of the Suez Canal. know that they have been subjected to grave These matters came to a crisis on July 26 and repeated provocations. of this year when the Egyptian Government The present fact nonetheless seems clear. seized the Universal Suez Canal Company. The action taken can scarcely be reconciled For ninety years, ever since the inauguration with the principles and purposes of the of the canal, that company has operated the United Nations to which we have all sub-

canal—largely under British and French scribed. And beyond this we are forced to

technical supervision. doubt that resort to force and war will for

Now, there were some among our allies long serve the permanent interests of the who urged an immediate reaction to this attacking nations. event by use of force. We insistently urged Now we must look to the future. otherwise, and our wish prevailed, through In the circumstances I have described, a long succession of conferences and negotia- there will be no United States involvement tions, for weeks—even months—with partici- in these present hostilities. I therefore have

pation by the United Nations. no plan to call the Congress in special sesAnd there, in the United Nations, only a_ sion. Of course, we shall continue to keep in

short while ago, on the basis of agreed contact with Congressional leaders of both principles, it seemed that an acceptable ac- parties.

cord was within our reach. I assure you your Government will remain

But the direct relations of Egypt with alert to every possibility of this situation and both Israel and France kept worsening to a_ keep in close contact and coordination with point at which first Israel then France—and the legislative branch of this Government. Great Britain also—determined that, in their At the same time it is—and it will remain judgment, there could be no protection of —the dedicated purpose of your Government their vital interests without resort to force. to do all in its power to localize the fighting Upon this decision events followed swiftly. and to end the conflict.

On Sunday, the Israeli Government or- We took our first measure in this action

dered total mobilization. yesterday. We went to the United Nations

, Tue AMERICAN BASE IN ICELAND 823 with a request that the forces of Israel In all the recent troubles in the Middle return to their own line and that hostilities East there have indeed been injustices

in the area be brought to a close. suffered by all nations involved. But I do This proposal was not adopted because it not believe that another instrument of inwas vetoed by Great Britain and by France. justice—war—is a remedy for these wrongs.

It is our hope and intent that this matter There can be no peace without law. And will be brought before the United Nations there can be no law if we work to invoke General Assembly. There, with no veto one code of international conduct for those operating, the opinion of the world can be who oppose and another for our friends. brought to bear in our quest for a just end The society of nations has been slow in

to this tormenting problem. developing means to apply this truth. But

In the past the United Nations has proved _ the passionate longing for peace on the part

able to find a way to end bloodshed. We of all peoples of the earth compels us to believe it can and that it will do so again. speed our search for new and more effective My fellow citizens, as I review the march instruments of Justice. of world events in recent years 1 am even The peace we seek and need means much more deeply convinced that the United Na- more than mere absence of war. It means tions represents the soundest hope for peace the acceptance of law and the fostering of in the world. For this very reason I believe justice in all the world.

that the processes of the United Nations To our principles guiding us in this quest need further to be developed and strength- we must stand fast. In so doing, we can

ened. honor the hopes of all men for a world in I speak particularly of increasing its ability which peace will truly and justly reign. to secure justice under international law.

629. THE AMERICAN BASE IN ICELAND December 6, 1956

(Department of State Bulletin, 21 January 1957) On May 5, 1951, U. S. and Iceland entered into its adherence to the North Atlantic Treaty a Defense Agreement under which the U.S. un- Organization relating to the stationing of dertook the defense of Iceland and Iceland per- forces in Iceland and the fact that final mitted the U. 5. to establish and maintain a qecision as to the presence of the defense major air base on its soil. In 1955 and 1956 a f “7 Iceland ts with the G t combination of circumstances—the inflationary orces in iceland Tests Wi e wovernmen effect of American spending on Icelandic econ- °° Iceland, the Governments of Iceland and omy, the dislike of foreign military personnel, the United States have held discussions conthe feeling that the communist danger had cerning the revision of the Defense Agreeabated—led to a proposal to demand the with- ment and the withdrawal of the defense force drawal of American forces. Just when it ap- and have reached an understanding that the peared that the United States would be forced recent development of the world affairs and to abandon the Island, a series of events in the continuing threat to the security of IceEurope, notably the ruthless Russian suppres- jand and the North Atlantic community call more the communist danger, and led to a rever- for the presence of defense forces in Iceland sal of the Icelandic position. This executive Under the Defense Agreement and therefore

sion of Hungarian discontent, dramatized once . agreement of December 6, 1956 formalized that decided:

change of attitude. 1. That discussions concerning the revision of the Defense Agreement for the purpose of the withdrawal of the Defense Force will be AGREEMENT ON DEFENSE NEGOTIATIONS discontinued until notice is given according

Recognizing the traditional principles ex- to paragraph 2 below.

pressed by the Government of Iceland upon 2. That the six-month period of notice

824 DOCUMENTS OF AMERICAN HIsTORY provided for in Article VII of the Defense defense needs of Iceland and the North Agreement will start to run when either Atlantic area, to consider arrangements ap-

Government gives notice. propriate to meeting such needs, and, taking 3. That a Standing Group will study de- into account the general political and military fense needs in the light of the development situation, to make recommendations to the of world conditions and make recommenda- two governments; tions to the Governments how to meet these II. to make preparations consistent with

problems. military readiness for a broader participation by Icelandic nationals in the performance of AGREEMENT SETTING UP ICELAND functions connected with defense insofar as

DEFENSE STANDING GROUP qualified personnel are available, and to assure the establishment of training programs An Iceland Defense Standing Group con- appropriate to this purpose. sisting of not more than three senior rep- III. to endeavor to resolve general problems

resentatives of each Government will be of policy with regard to the relations beconstituted for the following purposes: tween the Icelandic people and the Defense

I. To consult from time to time as to the’ Force. .

630. BUTLER v. MICHIGAN 77 S.Ct.Rep. 524 1957

This is the first major censorship case to reach magazine, newspaper, writing, pamphlet,

the Supreme Court; while technically it ad- ballad, printed paper, print, picture, dressed itself only to the issue of applying drawing, photograph, publication or standards of what was fit for children to the other thing, including any recordings,

whole realm of literature, its implications are ws :

wide. See Z. Chafee, The Blessings of Liberty; containing obscene, immoral, lewd or A. Meiklejohn, Free Speech: and its Relation to lascivious language, or obscene, immoral, Self Government ; W. Gellhorn, Individual Free- lewd or lascivious prints, pictures, fig-

dom and Governmental Restraints, ch. 2; M. L. ures or descriptions, tending to incite

Ernst and W. Seagle, To the Pure; Marie minors to violent or depraved or imJahoda, The Impact of Literature; Paul Blan- moral acts, manifestly tending to the shard, The Right to Read; Frank Thayer, Legal corruption of the morals of youth, or

centre of ne f aethe Onan and oonscenity, shall introduce into any: family, school “Literature, Law an e Con-

stitution,” 38 Minn. L. Rev. 098 Alpert, “Judi. 0% Place of education or shall buy, procial Censorship of Obscene Literature” 52 Harv. cure, receive or have in his Possession,

L. Rev. 40; Z. Chafee, “Censorship of Books any such book, pamphlet, magazine,

and Plays,” 1 Bill of Rights Rev. 16. newspaper, writing, ballad, printed pa-

per, print, picture, drawing, photograph, publication or other thing, either for the purpose of sale, exhibition, loan or circulation, or with intent to introduce the FRANKFURTER, J. This appeal from a judg- same into any family, school or place of

ment of conviction entered by the Recorder’s education, shall be guilty of a misde-

Court of the City of Detroit, Michigan, meanor.” challenges the constitutionality of the follow- Appellant was charged with its violation for ing provision, § 343, of the Michigan Penal selling to a police officer what the trial judge Code, Comp.Laws Supp.1954, 3 750.343: characterized as “a book containing obscene,

“Any person who shall import, print, immoral, lewd, lascivious language, or depublish, sell, possess with the intent to scriptions, tending to incite minors to violent

sell, design, prepare, loan, give away, or depraved or immoral acts, manifestly distribute or offer for sale, any book, tending to the corruption of the morals of

EISENHOWER ON MIpDLE EAST POLICY 825 youth.” Appellant moved to dismiss the judge found to have a potentially deleterious proceeding on the claim that application of influence upon youth. The State insists that, § 343 unduly restricted freedom of speech by thus quarantining the general reading as protected by the Due Process Clause of public against books not too rugged for the Fourteenth Amendment in that the sta- grown men and women in order to shield tute (1) prohibited distribution of a book to juvenile innocence, it is exercising its power the general public on the basis of the un- to promote the general welfare. Surely, this desirable influence it may have upon youth; is to burn the house to roast the pig. Indeed, (2) damned a book and proscribed its sale the Solicitor General of Michigan has, with merely because of some isolated passages characteristic candor, advised the Court that that appeared objectionable when divorced Michigan has a statute specifically designed from the book as a whole; and (3) failed to to protect its children against obscene matter provide a sufficiently definite standard of ‘tending to the corruption of the morals of guilt. After hearing the evidence, the trial youth.” But the appellant was not convicted judge denied the motion, and, in an oral for violating this statute. opinion, held that “the defendant is guilty We have before us legislation not reasonbecause he sold a book in the City of Detroit ably restricted to the evil with which it is

containing this language [the passages said to deal. The incidence of this enactdeemed offensive], and also because the ment is to reduce the adult population of

Court feels that even viewing the book as a Michigan to reading only what is fit for whole, it [the objectionable language] was children. It thereby arbitrarily curtails one: not necessary to the proper development of of those liberties of the individual, now the theme of the book nor of the conflict enshrined in the Due Process Clause of the expressed therein.” Appellant was fined Fourteenth Amendment, that history has at-

$100. ... tested as the indispensable conditions for the It is clear on the record that appellant was maintenance and progress of a free society. convicted because Michigan, by § 343, made We are constrained to reverse this convicit an offense for him to make available for _ tion.

the general reading public (and he in fact Reversed. sold to a police officer) a book that the trial

631. EISENHOWER ADDRESS ON AMERICAN POLICY IN THE MIDDLE EAST February 20, 1957 (New York Times, February 21, 1957) Bowing to American pressure and world opin- I come to you again to talk about the

ion, Great Britain and France exacuated their situation in the Middle East. The future of troops from Egyptian territory at the end of the United Nations and peace in the Middle 1956. See Doc. No. 632. Israeli troops were East may be at stake. withdrawn from all occupied territory except the ; Gulf of Aqaba and the Gaza strip which had In the four months since I talked to you been used by Egypt for hostile acts against 2bout the crisis in that area, the United NaIsrael. President Eisenhower assured the Israelis tions has made considerable progress in that the United States would support efforts to resolving some of the difficult problems. We prevent the resumption of hostile acts by Egypt are now, however, faced with a fateful moif Israel would withdraw her troops from these ment as the result of the failure of Israel to

two areas. This commitment became binding withdraw its forces behind the Armistice when Israel complied with the President's "lines, as contemplated by the United Nations quest. The exact character of the commitment Resolut; hi bi however was clouded in semantic ambiguity. See esolutions on this subject. . . . “United States Policy in the Middle East Sept. When I talked to you last October, I 1956-June 1957: Documents.” Dept. of State pointed out that the United States fully

Publication 6505. realized that military action against Egypt

826 DOCUMENTS OF AMERICAN HISTORY resulted from grave and repeated provoca- Feb. 2, Israel should complete that withtions. But also I said that the use of mili- drawal. tary force to solve international disputes However, the Prime Minister, in his reply, could not be reconciled with the principles took the position that Israel would not and purposes of the United Nations, to evacuate its military forces from the Gaza which we had all subscribed. I added that Strip unless Israel retained the civil adour country could not believe that resort ministration and police. This would be in to force and war would for long serve the contradiction to the armistice agreement. permanent interests of the attacking nations, Also, the reply said that Israel would not which were Britain, France and Israel. withdraw from the Straits of Aqaba unless So I pledged that the United States would freedom of passage through the straits was seek through fhe United Nations to end the assured.

conflict and to bring about a recall of the It was a matter of keen disappointment forces of invasion, and then make a renewed __ to us that the Government of Israel, despite and earnest effort through that organization the United Nations action, still felt unwilling

to secure justice, under international law, to withdraw.

for all of the parties concerned. However, in a further effort to meet the

Since that time much has been achieved views of Israel in these respects, Secretary and many of the dangers implicit in the of State Dulles, at my direction, gave to the situation have been avoided. The govern- Government of Israel on Feb. 11 a statement ments of Britain and France have withdrawn of United States policy. This has now been

their forces from Egypt. Thereby they made public. It pointed out that neither the showed respect for the opinions of mankind United States nor the United Nations had as expressed almost unanimously by the authority to impose upon the parties a subeighty-nation members of the United Na- stantial modification of the Armistice agree-

tions General Assembly. . . . ment which was freely signed by Israel and The Prime Minister of Israel, in answer Egypt. Nevertheless, the statement said, the to a personal communication, assured me United States as a member of the United early in November that Israel would will- Nations would seek such disposition of the ingly withdraw its forces if and when there United Nations Emergency Force as would should be created a United Nations force to assure that the Gaza Strip could no longer

move into the Suez Canal area. This force be a source of armed infiltration and rewas, in fact, created and has moved into the __ prisals.

canal area. The Secretary of State orally informed Subsequently, Israel forces were with- the Israeli Ambassador that the United

drawn from much of the territory of Egypt States would be glad to urge and support, which they had occupied. However, Israeli also, some participation by the United Naforces still remain outside the armistice lines, tions, with the approval of Egypt, in the notably at the mouth of the Gulf of Aqaba administration of the Gaza Strip. The prinwhich is about 100 miles from the nearest cipal population of the strip consists of

Israeli territory and in the Gaza Strip about 300,000 Arab refugees, who exist which, by the armistice agreement, was to largely as a charge upon the benevolence of be occupied by Egypt. This fact creates the the United Nations and its members.

present crisis... . With reference to the passage into and In view of the valued friendly relations through the Gulf of Aqaba, we expressed the which the United States has always had with conviction that the gulf constitutes interna-

the state of Israel, I wrote to Prime Minis- tional waters and that no nation has the ter Ben-Gurion on Feb. 3. I recalled his right to prevent free and innocent passage statement to me of Nov. 8 to the effect that in the gulf. We announced that the United the Israeli forces would be withdrawn under States was prepared to exercise this right certain conditions, and I urged that, in itself and to join with others to secure genview of the General Assembly resolutions of — eral recognition of this right... .

: THE EISENHOWER DOCTRINE 827 We should not assume that if Israel with- ternational use of the Suez Canal will need draws, Egypt will prevent Israeli shipping to be worked out in detail. The Arab refufrom using the Suez Canal or the Gulf of gee problem must be solved. As I said in my Aqaba. If, unhappily, Egypt does hereafter special message to Congress on Jan. 5, it

violate the Armistice agreement or other must be made certain that all the Middle international obligation, then this should be East is kept free from aggression and infildealt with firmly by the society of nations. — tration. The present moment is a grave one, but Finally, all who cherish freedom, including

we are hopeful that reason and right will ourselves, should help the nations of the prevail. Since the events of last October and Middle East achieve their just aspirations November, solid progress has been made, in for improving the well-being of their peoconformity with the Charter of the United ples. Nations. There is the cease-fire, the forces What I have spoken about tonight is only of Britain and France have been withdrawn, one step in a long process calling for patience the forces of Israel have been partially with- and diligence, but at this moment it is the drawn, and the clearing of the Canal nears critical issue on which future progress decompletion. When Israel completes its with- pends. drawal, it will have removed a definite block It is an issue which can be solved if only

to further progress. we will apply the principles of the United Once this block is removed, there will be Nations. serious and creative tasks for the United That is why, my fellow Americans, I know Nations to perform. There needs to be re- you want the United States to continue to spect for the right of Israel to national use its maximum influence to sustain those existence and to internal development. Com- __ principles as the world’s best hope for peace. plicated provisions insuring the effective in-

632. THE EISENHOWER DOCTRINE March 9, 1957 (Public Law 7, 85th Congress) The Suez crisis of 1956-57 created a situation any nation or group of nations in the general which appeared to be highly favorable to Com- area of the Middle East desiring such asmunist infiltration or overt attack, After Per- sistance in the development of economic suading Britain, France, and Israel to withdraw strength dedicated to the maintenance of

their forces from Egyptian territory, President . . Eisenhower turned his attention to the larger national independence. ; .

problem of protecting the Middle East from Sec. 2. The President is authorized to unCommunist attack. The President asked for dertake, in the general area of the Middle authority to send financial and military aid, at East, military assistance programs with any his discretion, to any Middle Eastern country nation or group of nations of that area dethreatened by Communist agression. Congress siring such assistance. Furthermore, the endorsed the proposal for economic aid and nited States regards as vital to the national modified the proposal dealing with military aid. interest and world peace the preservation of Compare this doctrine with the Truman Doc- the ind d d inteerit £ th trine, Doc. No. 572. See J. C. Hurewitz, Middle ne incepencence and Integrity oF the na

East Dilemmas; J. C. Campbell, “From ‘Doc- tions of the Middle East. To this end, if trine’ to Policy in the Middle East,” 35 Foreign the President determines the necessity

Affairs, 441. thereof, the United States is prepared to use armed force to assist any such nation or group of nations requesting assistance against

armed aggression from any country conResolved, That the President be and hereby trolled by international communism: Prois authorized to cooperate with and assist vided, That such employment shall be con-

828 DOCUMENTS OF AMERICAN HIsToRY sonant with the treaty obligations of the a view to maintaining the truce in that reUnited States and with the Constitution of — gion.

the United States. Sec. 5. The President shall within the Sec. 3. The President is hereby authorized months of January and July of each year to use during the balance of the fiscal year report to the Congress his action hereunder. 1957 for economic and military assistance Sec. 6. This joint resolution shall expire under this joint resolution not to exceed when the President shall determine that the

$200,000,000 from any appropriation now peace and security of the nations in the available for carrying out the provisions of | general area of the Middle East are reason-

the Mutual Security Act of 1954... . ably assured by international conditions creSec. 4. The President should continue to ated by action of the United Nations or furnish facilities and military assistance, otherwise except that it may be terminated within the provisions of applicable law and earlier by a concurrent resolution of the two established policies, to the United Nations Houses of Congress. Emergency Force in the Middle East, with

633. CIVIL RIGHTS ACT OF 1957 August 30, 1957 (New York Times, August 31, 1957) Both Truman (see Doc. No. 587) and Eisen- President by and with the advice and consent hower had requested legislation to provide fed- of the Senate. Not more than three of the

et enforcement of ee,e Seton of civil members shall at any one time be of the rights written into Constitution and ex- +1 pounded by the Supreme Court. This hotly- same political party.

contested act—the first of its kind since (c) The President shall de signate one of Reconstruction—went part way toward meeting the members of the commission as chairman these Presidential requests. It created a Federal nd one as vice chairman. The vice chairman

Civil Rights Commission, established a Civil shall act as chairman in the absence or disRights division in the office of the Attorney- ability of the chairman, or in the event of a General, empowered federal prosecutors to ob- vacancy in that office. tain injunctions against those who denied any (d) Any vacancy in the commission shall citizen his rights under the Constitution, and = not affect its powers and shall be filled in permitted trial of offenders in contempt of the same manner, and subject to the same these injunctions without jury in civil cases, limitation with respect to party affiliations

but with jury in criminalas the cases. os original appointment was made.

(e) Four members of the commission shall constitute a quorum. RULES OF PROCEDURE OF THE COMMISSION

An act to provide means of further securing Sec. 102. (e) If the commission deterand protecting the civil rights of persons mines that evidence or testimony at any within the Jurisdiction of the United hearing may tend to defame, degrade or in-

States. criminate any person, it shall (1) receive such evidence or testimony in executive ses-

Part I—ESTABLISHMENT OF THE sion; (2) afford such person an opportunity COMMISSION ON CiviIL RIGHTS voluntarily to appear as a witness; and (3) Sec. 101. (a) There is created in the exec- receive and dispose of requests from such utive branch of the Government a Commis- person to subpoena additional witnesses.

sion on Civil Rights (hereinafter called the (g) No evidence or testimony taken in

“commission’’). executive session may be released or used in

(b) The commission shall be composed of public sessions without the consent of the six members who shall be appointed by the commission. Whoever releases or uses in pub-

Crvit Ricuts Act oF 1957 829 lic without the consent of the commission — to be fixed by the President, not in excess of

evidence or testimony taken in executive $22,500 a year. The President shall consult session shall be fined not more than $1,000, with the commission before submitting the or imprisoned for not more than one year. nomination of any person for appointment (h) In the discretion of the commission, to the position of staff director. Within the witnesses may submit brief and pertinent limitations of its appropriations, the comsworn statements in writing for inclusion in mission may appoint (6) such other perthe record. The commission is the sole judge sonnel as it deems advisable, in accordance of the pertinency of testimony and evidence with the civil service and _ classification

adduced at its hearings. laws, ...

(i) Upon payment of the cost thereof, a (b) The commission shall not accept or

witness may obtain a transcript copy of his utilize services of voluntary or uncompentestimony given at a public session or, if sated personnel. . . given at an executive session, when author- (c) The commission may constitute such

ized by the commission. advisory committees (1) within states com-

posed of citizens of that state and may conDUTIES OF THE COMMISSION sult with governors, attorneys general and Sec. 104 (a). The commission shall— other representatives of state and local gov(1) Investigate allegations in writing un- ernments, and private organizations, as it der oath or affirmation that certain citizens deems advisable. of the United States are being deprived of (e) All Federal agencies shall cooperate their right to vote and have that vote counted fully with the commission to the end that it by reason of their color, race, religion or na- may effectively carry out its functions and tional origin; which writing, under oath or duties. affirmation, shall set forth the facts upon (f) The commission, or on the authorizawhich such belief or beliefs are based. tion of the commission any subcommittee of (2) Study and collect information concern- two or more members, at least one of whom ing legal developments constituting a denial shall be of each major political party, may,

of equal protection of the laws under the for the purpose of carrying out the provi-

Constitution; and sions of this act, hold such hearings and act

(3) Appraise the laws and policies of the at such times and places as the commission Federal Government with respect to equal or such authorized subcommittee may deem protection of the laws under the Constitu- advisable. Subpoenas for the attendance and

tion. testimony of witnesses or the production of (b) The commission shall submit interim written or other matter may be issued in acreports to the President (3) and to the Con- cordance with the rules of the commission as gress at such times as either the commission contained in Section 102 (j) and (k) of this or the President shall deem desirable and act, over the signature of the chairman of the shall submit to the President (4) and to the commission or of such subcommittee, and Congress a final and comprehensive report may be served by any person designated by of its activities, findings, and recommenda- — such chairman.

tions not later than two years from the date (zg) In case of contumacy or refusal to

of the enactment of this act. obey a subpoena, any District Court of the

(c) Sixty days after the submission of its United States or the United States Court of final report and recommendations the com-_ any territory or possession, or the District

mission shall cease to exist. Court of the United States for the District of Columbia, within the jurisdiction of which

POWERS OF THE COMMISSION the inquiry is carried on or within the jurisSec. 105 (a) (5). There shall be a full- diction of which said person guilty of contutime staff director for the commission who macy or refusal to obey is found or resides shall be appointed by the President by and _ or transacts business, upon application by the with the advice and consent of the Senate Attorney General of the United States shall and who shall receive compensation at a rate, have jurisdiction to issue to such person an

830 DOCUMENTS OF AMERICAN History order requiring such persons to appear be- or temporary injunction, restraining order, fore the commission or a subcommittee or other order. In any proceeding hereunder thereof, there to produce evidence if so or- the United States shall be liable for costs dered, or there to give testimony touching the same as a private person. the matter under investigation; and any (d) The district courts of the United States failure to obey such order of the court may shall have jurisdiction of proceedings instibe punished by said court as a contempt tuted pursuant to this section and shall exer-

thereof. cise the same without regard to whether the party aggrieved shall have exhausted any adPart II—To PRoviDE FOR AN ADDITIONAL ministrative or other remedies that may be ASSISTANT ATTORNEY GENERAL provided by law.

sec. III. There shall be in the Depart- (e) (14) Any person cited for an alleged. ment of Justice one additional assistant at- contempt under this act shall be allowed to torney general, who shall be appointed by make his full defense by counsel learned in

the President, by and with the advice and the law; and the court before which he is consent of the Senate, who shall assist the cited or tried, or some judge thereof, shall Attorney General in the performance of his immediately, upon his request, assign to him duties, and who shall receive compensation such counsel, not exceeding two, as he may at the rate prescribed by law for other assist- desire, who shall have free access to him at

ant attorneys generals. all reasonable hours. He shall be allowed, in

his defense to make any proof that he can Part IV—To Provipe MEANS oF produce by lawful witnesses, and shall have FURTHER SECURING AND PROTECTING the like process of the court to compel his

THE RicHT To VoTE witnesses to appear at his trial or hearing, Sec. 131. (c) Add, immediately following as is usually granted to compel witnesses to the present text, (13) four new subsections appear on behalf of the prosecution. If such

to read as follows: person shall be found by the court to be

(b) No person, whether acting under color financially unable to provide for such counof law or otherwise, shall intimidate, threaten, _ sel, it shall be the duty of the court to procoerce or attempt to intimidate, threaten or vide such counsel. coerce any other person for the purpose of interfering with the right of such other per- Part V—To Provipe TRIAL By JURY FOR son to vote or to vote as he may choose, or PROCEEDINGS TO PUNISH CRIMINAL

of causing such other person to vote for, or Contempts or Court Growine Our not to vote for, any candidate for the office or Civit RicutTs CASES AND TO AMEND of President, Vice President, Presidential THE JUDICIAL Cope RELATING TO elector, member of the Senate or member of FEDERAL JURY QUALIFICATIONS the House of Representatives, delegates or

commissioners from the territories or pos- Sec. 151. In all cases of criminal contempt sessions, at any general, special, or primary arising under the provisions ‘of this act, the election held solely or in part for the pur- accused, upon conviction, shall be punished pose of selecting or electing any such can-_ by fine or imprisonment or both; Provided

didate. however, that in case the accused is a natural

(c) Whenever any person has engaged or person the fine to be paid shall not exceed there are reasonable grounds to believe that the sum of $1,000, nor shall imprisonment any person is about to engage in any act or exceed the term of six months; Provided practice which would deprive any other per- further, That in any such proceeding for son of any right or privilege secured by sub- criminal contempt, at the discretion of the

section (a) or (b), the Attorney General judge, the accused may be tried with or may institute for the United States, or in without a jury; Provided further, however, the name of the United States, a civil action That in the event such proceeding for crimor other proper proceeding for preventive re- inal contempt be tried before a judge withlief; including an application for a permanent out a jury and the sentence of the court on

Civit Ricuts AcT oF 1957 831 conviction is a fine in excess of the sum of officer of the court in respect to the writs, $300 or imprisonment in excess of forty-five orders, or process of the court.

days, the accused in said proceeding, upon Nor shall enything herein or in any other demand therefor, shall be entitled to a trial provision of law be construed to deprive de novo before a jury, which shall conform courts of their power, by civil contempt as near as may be to the practice in other proceedings, without a jury, to secure com-

criminal cases. pliance with or to prevent obstruction of,

This section shall not apply to contempts as distinguished from punishment for violacommitted in the presence of the court or tions of, any lawful writ, process, order, rule, so near thereto as to interfere directly with decree, or command of the court in accordthe administration of justice nor to the mis- ance with the prevailing usages of law and behavior, misconduct or disobedience, of any _ equity, including the power of detention... .

INDEX (The references in this index are to document numbers, not pages.)

Abandonment of gold standard, 481 Army, command of, Act, 264

A.B.C. conference, mediation protocol, 396 Arthur, on Indian problem, 304

Ableman v. Booth, 188 Articles of Confederation, 72

427 92

Abolition of slave trade, 111; in D.C., 174; Ashwander v. TVA, 480

slavery, 222 Associated Press v. NLRB, 502; v. U.S., 567

Abolitionist propaganda, S.C. resolutions on, 151 Association, 57 Abrams v. US., dissenting opinion of Holmes, Assumption of state debts, Virginia resolutions,

Abrogation of Platt Amendment, 491 Atlantic Charter, 539

596 penheimer case, 614

Acheson, Dean, address on strategy of freedom, Atomic Energy Commission, decision in Op-

Adair v. U.S., 368 Atomic Energy Commission Act, 572

Adams, J. Q., nationalism of, 130; message on Atomic energy, declaration on control of, 571

Panama Congress, 131 Atoms for Peace Program, Eisenhower’s, 610

Adamson Act, 414

Adkins v. Children’s hospital, 451 Bailey v. Drexel Furniture Co., 431

Administration of Justice Act, 49 Baker, J., opinion, 178

A.F.L.-C.1.0. constitution, 1955, 623 Balzac v. Porto Rico, 446

Agricultural Act, legislation in first Wilson ad- Bank, Act of 1864, 231

ministration, 411; AAA, 1933, 477 Bank bill, Jackson’s veto, 147

Alaska, purchase of, 268 Bank, Hamilton on constitutionality, 93; Jeffer-

Albany Plan of Union, 31 son on constitutionality, 94

Albemarle Co., Va., resolutions, 52 Bank, removal of deposits from, 148 Aldrich Commission, recommendations, 381 Bayard and Wife v. Singleton, 89

Alien Act, 101 Berlin blockade, U.S. note on, 586 Alien and Sedition Acts, 101 Berlin Decree, 112

Alien Enemies Act, 101 Billings, J., opinion, 326

Alien Registration Act of 1940, 531 Bill of Rights, Massachusetts, 70; Virginia, 67 Alliance, Treaty of, with France, 69 Black, J., dissent, 518, 544; opinions, 528, 549,

Altgeld-Cleveland controversy, 334 567, 568, 578, 584

American Anti-Imperialist League Platform, 351 Black Code, Mississippi, 246; Louisiana, 247 American Anti-Slavery Society, constitution, 150 Blaine, invitation to Pan-American Congress, 305 American Federation of Labor, constitution, 473 Bland-Allison Act, 299; veto by Hayes, 300;

American Insurance Co. v. Canter, 134 Cleveland’s recommendation, 311

American Party Platform, 183 Blatchford, J., opinion, 319

son’s, 248 496

Amnesty Proclamation, Lincoln’s, 230; John- Bonus bill, Madison’s veto, 116; of 1935, veto,

Annapolis convention, 83 Boss rule in New York, E. Root on, 406 Annexation, Texas, 165, 166; Oregon, 166; Santo Boston non-importation agreement, 46

Domingo, 279; Hawaii, 330, 331, 348 Boston Port Act, 49; Pennsylvania resolutions, Anti-Discrimination Act, New York, 562 50; New York city resolutions, 51 Anti-Imperialist League Platform, 351 Bradley, J., dissenting, 282; opinion, 292

Anti-injunction bill, 474 Braintree, Massachusetts, instructions, 37 Anti-slavery society, constitution, declaration of | Brandeis, J., dissenting, 472

sentiments, 150 Brewer, J., opinions, 319, 336, 366

Anti-trust Acts, Sherman, 320; rule of reason, Bricker Amendment, 611

375; Clayton, 403 Bridges v. Wixon, 560

Anti-war Treaty, 1934, 492 British Constitution and fundamental law, 44 Apology of General Grant, 296 British Orders in Council, 112 Appeal of independent democrats, 179 Brook Farm, constitution, 162

Archangel expedition, 428 Brown v. Board of Education of Topeka, 617 Arizona Enabling Act, veto, 378 Brown, J., opinions, 344, 352 833

834 INDEX Brown, John, last speech, 189 Clay, Raleigh Letter, 164; Resolutions of 1850,

Bryan-Chamorro convention, 398 174

Bryan, W. J., silver letter, 338; cross of gold Clayton Act, 403 speech, 342; resolution Dem. national con- Clayton-Bulwer Treaty, 177

vention, 383; arbitration treaty, 401 Cleveland, Pres., recommendation for repeal of

Buchanan, Pres., on secession, 195 Bland-Allison Act, 311; pension legislation,

Buck v. Bell, 463 312; tariff message of 1887, 317; silver !etter, Bunting v. Oregon, 421 322; on repeal of Sherman Act, 327; with-

Burr conspiracy, Jefferson’s message, 110 drawal of Hawaii Treaty, 331; controversy

Butler, Gen., “contrabands,” 207 with Altgeld, 334; appeal for gold guarantec

Butler, U.S. v., 478 on bonds, 337; Venezuela controversy, 340 Butler v. Michigan, 630 Cohens v. Virginia, 123

Byrnes, J., opinion, 545 Coinage act, “crime of °73,” 285 Cole v. Young, 624 Cabot, letters patent to, 4 Collector v. Day, 282 Cairo Conference, 552 Columbia, $.C., burning cf, 241

Cambridge agreement, 13; platform, 21 Columbus, privileges and prerogatives, 1 Canada, Continental Congress address to, 60; Command of Army Act, 264 defense agreement, 1941, 531; reciprocity, 377. Commercial warfare, 1806-1810, 112

Canadian Reciprocal Trade Agreement, 506 Commonwealth v. Caton, 73

Canadian reciprocity, Taft on, 377 Commonwealth v. Hamilton Manufacturing

Canning, G., letter to R. Rush, 126 Co., 295

Cardoza, J., opinions, 504, 505; dissent, 507 Commonwealth v. Hunt, 160

Caroline affair, 156 Communist Control Act of 1954, 615

Carter v. Carter Coal Co., 507 Compensated Emancipation, messages of Lin-

Casablanca Conference, 550 coln, 211

Caucus, Tennessee protest, 128 Compromise, Missouri, 121

Chamberlain, Gov., on restoration of white rule Compromise of 1850, 174

in S.C., 297 Concentration of wealth, Pujo Committee re-

Chambers v. Florida, 528 port, 388; Commission on Industrial Relations Champion v. Ames, 359 report, 407 Chapultepec, Act of, 558 Concord, Mass., demands constitutional convenCharles River Bridge v. Warren Bridges, 155 tion, 68

Chase, C. J., appeal of independent Democrats, Confederate States of America, constitution, 201

179; opinions, 259, 277, 278 Confederation, articles of, 72

Cherokee Nation v. Georgia, 140 Congress of Industrial Organizations, constituChicago, Milwaukee & St. Paul R.R. v. Minn., tion of, 569

319 C.1.0.-A.F.L. constitution, 1955, 623

Child Labor Act, 430 Connally-Fulbright Resolutions, 553

Child Labor case, 542 Connally, Tom, 555

China, immigration treaty, 306; exclusion act, Connecticut, Fundamental Orders, 16 307; Open Door, 350; Root-Takahira agree- Connecticut Gen. Life Ins. Co. v. Johnson, 518

ment, 372; treaty of arbitration, 401 Conservation, T. Roosevelt’s message, 369; con-

Chisholm v. Georgia, 95 ference, 370

Churches, social creed of, 371 Constitution of Confederate States of America,

Churchill, Winston, The Atlantic Charter, 539; 201 statement on atrocities, at Moscow Confer- Constitution of the United States, 87; objections

ence, 551 to, 88

Citizens Savings & Loan Assoc. v. Topeka, 286 Constitutional convention, Concord demands, 68

City Point conference, report by Admiral Constitutional Union Party Pla’form, 191

Porter, 239 Continental Congress, Virginia instructions to,

Civil Rights Act, 1866, 252; veto of, 253; 1875, 53; resolves, 56; association, 57; address to

291; cases, 292 Canada, 60

Civil Rights Act of 1957, 633 Contract labor law, 233 Civil Rights Cases, 292 Coolidge, Pres., message on intervention in Nic-

Civil rights message, Truman’s, 582 aragua, 460; veto McNary-Haugen Bill, 462 Civil Service Reform, Pendleton Act, 308; Hatch Cotton textile code, 485

Act, 525 Coxey’s program, 332

Classic case, 544 Craig v. Missouri, 137

INDEX 835

“Crime of 73,” 285 Eisenhower, Pres., security program, 607; atoms Crimea Conference, 557 for peace program, 610; veto of natural gas

Crittenden-Johnson, resolutions on objects of bill, 627; address on Middle East crisis, 628;

war, 206 address on policy in Middle East, 631

Crittenden, peace resolutions, 196 Eisenhower Doctrine, 632

Cross of Gold speech, Bryan’s, 342 Emancipation, compensated, 211; proclamation, Cuba, resolutions for independence of, 347; 222; resolutions of Illinois Legislature, 225 Platt Amendment, 360; abrogation, 491 Embargo Act, 112

Cumberland Road Bill, veto, 125 Emergency Agricultural Act, 476

Curtiss-Wright, U.S. v., 510 Emergency Railroad Transportation Act, 480

C. J., opinion, 71 Employment Act of 1946, 570 ,Cushing, Encyclical Letter Quod Apostolici Muneris, 301 Darby Lumber Co., U.S. v., 542 Espionage Act, 45

Dartmouth College v. Woodward, 119 European Recovery Program, 601

Davis, J., opinion, 256 Everson v. Board of Education, 578

Davis, Jefferson, message to Confederate Con- Exchange of destroyers for air and naval bases,

gress, 203; inaugural, 213; last message to 536

people of Confederacy, 240 Ex parte Garland, 258 Day, J., opinions, 413, 441 Ex parte Milligan, 256

Dawes Act, 315 Ex parte Merryman, 209 Dayton-Goose Creek R.R. Co. v. U.S., 440 Ex parte Yarbrough, 293 Debs, U.S. v. Debs, 335; in re, 336

Declaration and Resolves, first Continental Con- Federal Power Commission v. Natural Gas

gress, 56 Pipeline Co., 549

Declaration of American Principles, 521 Federal Trade Commission Act, 402

Declaration of Independence, 66 First Reconstruction Act, 260; veto, 261

Declaration of Panama, 526 Fletcher v. Peck, 113 Declaration of War with Germany, Wilson’s Florida Treaty, 120

speech, 418 Floyd Co., Georgia, resolutions on secession, 190 Declaratory Act, 41 Force Bill, nullification, 146 De Jonge v. Oregon, 511 Ford Foundation, Grant to Education, 621

De Lome letter, 345 Foreign mediation, resolution against, 255

Democratic (Breckenridge faction) Platform, Foreign Policy, Truman statement on, 564

1860, 194 Formosa, Congressional resolution on, 618

Democratic Party Platform, 1860, 193; 1868, Four Freedoms, 537

274; 1896, 343; 1932, 475; 1936, 509 Four-Power Treaty, 448

Dennis v. U.S., 597 Fourteen Points, Wilson’s address, 423; AmeriDestroyer-bases deal, 536 can interpretation, 423; Allies accept, 423

Disarmament, Roosevelt’s message, 477 Fourteenth Amendment, 272; act to enforce, 273

Dix, Dorothea, Memorial, 163 Fourth Reconstruction Act, 270

Dollar Diplomacy, extract from Taft’s message, France, Treaty of Alliance with, 69

386; Wilson’s repudiation, 390 Frankfurter, J., opinions, 532

Douglas, J., dissent, 545; opinions, 529, 533, 556, | Freedmen’s Bureau Bill, 245; veto, 251

560 Fremont, J. C., Proclamation on Slaves, 208

Douglas, debates with Lincoln, 187 French in Mexico, 1862-1866, 262

Douglas, Mrs., Trial, 178 Frontier Grievances, Pennsylvania, 34

Downes v. Bidwell, 352 Fugitive Slave Act, 1850, 175

Drago Doctrine, 358 Fulbright Act, 573

Dred Scott v. Sandford, 185 Fulbright-Connally Resolutions, 553 Dulles, strategy of massive retaliation, 612 Fuller, C. J., dissenting, 352; opinions, 333, 339

Duplex Printing Co. v. Deering, 445 Fur-sealing controversy, 329

Economic Bill of Rights, 555 Galloway, Plan of Union, 55 Economic Conditions of the South, 517 Garland, ex parte, 258

Education, Federal Aid to, 626; Ford Founda- Garrison, W. L., Liberator, 149; Declaration of

tion Grant, 1955, 621 Sentiments, 150

173 tion, 367

Education and National Welfare, H. Mann on, Gentlemen’s Agreement on Japanese immigra-

Edwards v. California, 545 George, Henry, Single-tax Platform, 313

836 INDEX

Georgia Platform, 175 Herndon v. Lowry, 513

Germany, treaty of peace with, 442; arbitra- | High-school law, Massachusetts, 133 tion, 466; surrender of 1945, 562; U.S. Dec- Highways, national program for, 619

laration of war on, 1941, 541 Hirabayashi v. United States, 547

Gettysburg Address, 228 Hitler, Adolf, 524 Gibbons v. Ogden, 129 Holden v. Hardy, 344 Gitlow v. New York, 456 Holmes, J., dissenting, 363, 364, 368, 413, 427, Gobitis case, 532 451, 456, 458, 459; opinions, 426, 437, 463,

Gold Clause cases, 482 464

Gold Guarantee, Cleveland’s appeal, 337; Gold Home Building & Loan Assoc. v. Blaisdell, 494

Standard Act, 353; abandonment of gold Homestead Act, 214

, standard, 481 Hooker, Gen., Lincoln’s letter to, 224

Gore-McLemore Resolution, 408 Hoover, Pres., Rugged Individualism speech,

Granger Movement, 287 468; veto of Muscle Shoals bill, 470

Grant, Pres., observations on condition in Houston East & West Texas R.R. Co. v. US., South, 250; first inaugural, 276; appeal for 399 annexation of Santo Domingo, 279; on re- Hughes, C. J., opinions, 399, 480, 482, 486, 494, sumption of specie payments, 288; apology, 501, 511, 543

296 Human Rights, Declaration on by U.N., 587

Graves v. New York, 520 Humphrey’s Executor v. US., 498

Gray, J., opinion, 309 Hydrogen bomb program, 592 Great Britain, Treaty of 1783, 74; Jay, 98;

Rush-Bagot, 117; Webster-Ashburton, 161; Iceland, American base on, 629 Oregon, 169; Clayton-Bulwer, 177; Washing- __ Illinois, legislature of, on emancipation, 223

355 Wilson’s veto, 404

ton, 281; Fur-sealing, 329; Hay-Pauncefote, Immigration, literacy test, Taft’s veto, 387;

Greece, aid to, 575 Immigration, S.C., efforts to encourage, 257; Greeley, H., “Prayer of Twenty Millions,” 219 Chinese, 306, 307; Japanese, 367; laws of Green v. Frazier, 441 1917 and 1921, 422; Act of 1924, 453 Grosjean v. Am. Press Co., 499 Impeachment of President Johnson, 269 Guadalupe-Hidalgo, treaty, 171 Income Tax decision, 333 Guatemalan Crisis, 1954, 613 Independence, instructions for, from Malden,

Mass., 63; resolutions for, 65; declaration of,

Haiti, treaty of control, 410 66 Hamilton, A., plan of union, 86; opinion on Independence of Cuba, resolutions, 347 bank, 93 Independence of Philippines, 484 Hammer v. Dagenhart, 413 Independency in colonial Mass., 24

Hampton Roads Conference, 237 Independent Democrats, appeal of, 179 Hands off the Western Hemisphere, address by Independent Treasury Act, 170

F. D. Roosevelt, 523 Indians, Jackson’s Message on removal, 142;

Hanover Co., Va., Memorial, 79 Arthur on Indian problem, 304; Dawes Act, Harlan, J., opinions, 319, 359, 363, 368, 375 315

Harrison, Pres. B., message on annexation of Industrial Workers of the World, preamble, 434

Hawaii, 330 In re Debs, 336

Hartford Convention, report, 115 In re Jacobs, 310

Hatch Act, 316 Inter Caetera, Papal Bull, 2

Hatch Civil Service Reform Act, 525 Interstate Commerce Act, 318

Havana, Act of, 1940, 534 Intolerable Acts, 49

Hawaii, annexation, Harrison on, 330; Cleve- ‘Invisible Government,” E. Root on, 406

land, 331; joint resolution of, 348 Israel, recognition of, 590

Hay-Pauncefote Treaty, 355

Hay, J., Open Door Letters, 350 Jackson, J., opinions, 533, 545

Hayes, Pres., veto of Bland-Allison Act, 300; Jackson, Pres., veto of Maysville Road bill,

veto army appropriation act, 303 138; removal of southern Indians, 142; proc-

Health, Education and Welfare Department of, lamation to S.C. on nullification, 144; veto

606 of bank bill, 147; removal of public deposits,

Helvering v. Davis, 505 148; on specie circular, 154 Helvering v. Gerhardt, 519 Jacobs, in re, 310

Hemispheric Defense, 535 Japan, Immigration from, Gentlemen’s Agree-

INDEX 837 ment, 367; Root-Takahira Agreement, 372; Lee, Gen., Farewell to Army, 242 Lansing-Ishii Agreement, 420; note to, Dec. Legal Tender Cases, 280 1938, 522; war against, 54; military occupa- Lend Lease Act, 538

tion of, 563 Lever Act, 419

Japanese Relocation Order, 546; judicial inter- Lexington, Battle of, 59

pretation, 547 Leyden Agreement, 10

Jay Treaty, 98 Libera] Republican Party Platform, 1872, 283

Jefferson Day Address, 1945, written by F. D. Liberator, 149

Roosevelt, 561 Lima Declaration, 521

Jefferson, Pres., Va., Statute of Religious Lib- Lincoln, Pres., House Divided speech, 186; deerty, 80; constitutionality of bank, 94; Ken- bates with Douglas, 187; first inaugural, 202; tucky Resolutions, 102; first inaugural, 106; Message to Congress, 1861, 205; compensated on importance of New Orleans, 107; on Burr emancipation, 211; letter to Greeley, 219; let-

conspiracy, 110 ter to Manchester workingmen, 221; emanci-

Johnson, Pres., amnesty proclamation, 248; pation proclamation, 222; letter to Gen.

proclamation for provisional government of Hooker, 224; Gettysburg Address, 228; letter S.C., 249; freedmen’s bureau veto, 251; veto to Johnson on reconstruction of Tenn., 229; civil rights Act, 253; on restoration of south- plan of reconstruction, 230; proclamation on ern states, 255; veto first reconstruction act, Wade-Davis bill, 235; second inaugural, 238; 261; veto tenure of office act, 263; veto terms of peace, 239; last public address, 244 second reconstruction act, 266; impeachment, Literacy test for immigrants, vetoes, 387, 404

269; recommendation on public debt, 275 Lochner v. New York, 364

Johnson Act, 490 Lodge Corollary to Monroe Doctrine, 385

Johnston, Gen., surrender of, 243 London merchants, petition of 1766, 40; peti-

Joint Anti-Fascist Committee v. McGrath, 598 tion for reconciliation, 58 Joint Committee on Reconstruction, report, 254 Lord, J., opinion, 295

Jones & Laughlin case, 501 Lottery Case (Champion v. Ames), 359 Judiciary Act of 1789, 91 Louisiana, Jefferson on importance of, 107; ces-

Judiciary, reform, 1937, 515 sion, 108; black codes, 247

Julliard v. Greenman, 309 Lovett, Watson, and Dodd, v. U.S., 570

Jurisdiction of International Court of Justice, Loyalty Order, Truman, 576

575 Lusitania, first note, 405

Lyceums, constitution of, 136

Kansas-Nebraska Act, 180 Kellogg Peace Pact, 467

Kent, Chancellor, on universal suffrage, 124 MacArthur, General D., recall of, 599; speech Kentucky Resolutions of 1798, 102; of 1799, to Congress, 600

103; replies to, 104 Macon’s Bill No. 2, 112

298 bonus bill, 116

Knights of Labor, preamble and constitution, Madison, Pres., war message, 114; veto of

Korean War, Truman’s statement, 593 Malden, Mass., Instructions for Independence,

Ku Klux Klan, organization and principles, 271 63 Manchester Workingmen, address to Lincoln, Labor, American Federation of, Taft on injunc- 220; Lincoln’s reply, 221 tion in, 273; Knights of, 298; constitution, Mann, H., on education, 173

473; Act of 1935, 500 Marbury v. Madison, 109

La Follette, progressive republican league, 1911, Marcy, W. L., on spoils of victory, 139

376; platform of 1924, 454 Marshall, C. J., opinions, 109, 113, 118, 119, 123,

Land, resolution of Congress, 1780, 75; Vir- 129, 134, 137, 140, 141 ginia cession, 76; ordinance of 1785, 78; Act Marshall Plan, $77 of 1800, 105; Act of 1820, 122; Act of 1841, Martin v. Mott, 132

157; Homestead Act, 214; Powell’s Report on, Maryland, charter, 15; Toleration Act, 22

302 Massachusetts, school law of 1642, 19; colonial

Lansing -Ishii agreement, 420 independency, 24; school law of 1647, 20;

Lattimore, U.S. v., 622 . Circular Letter, 45; Government Act, 49; Bill Law, Fundamental, and the British Constitu- of Rights, 70; High School Law, 133; Per-

tion, 44 . sonal Liberty Act, 182

League of Nations, Wilson exposition of, 435; Massive retaliation, Dulles strategy, 612

defeat of, 436 Mayflower Compact, 11

838 INDEX Maysville Road Bill, Jackson’s veto, 138 Myers v. US., 459 McCarran, Internal Security Act, 594; Truman

veto, 595 Nashville Convention, resolution, 176

McCarran-Walters Act, Truman veto, 604 National Bank Act, 231 McCarthy, Sen. J., Senate censure of, 616 National Emergency Council, Report, 517 McClellan, Gen., letter to Lincoln, 217 National Labor Relations Act, 500

McCollum v. Board of Education, 584 National Labor Relations Board v. Jones &

M’Culloch v. Maryland, 118 Laughlin, 501

McKenna, J., opinion, 421 National Progressive Republican League, princi-

McKinley, Pres., war message, 346; reciprocity ples, 376

speech, 354 National Prohibition, 432; cases, 433

McNary-Haugen bill, 461; veto, 462 National Recovery Act, 484 .

McReynolds, J., opinion, 455 National Security Act of 1947, 581

Mecklenburg Co., resolutions, 64 National Union Party Platform, 232 Mediation Protocol of A.B.C. Conference, 396 Nationalism of Pres. J. Q. Adams, 130

Mediation, resolutions against foreign, 225 Naturalization Act, 101 Mexico, Polk’s message on war, 168; Treaty of | Natural Gas Bill, Eisenhower veto of, 627 1848, 171; French in, 226; Wilson’s message Naval Limitation Treaty, 447 on, 393; Tampico incident, 395; A.B.C. me- Navigation Act, 1660, 23; 1696, 27; 1733, 30

diation, 396 Nebbia v. New York, 495

Middle East, Eisenhower address October, 1956, Nelson, J., opinion, 282

628; Eisenhower address February, 1957, 631 Nelson, Sen., report of bill to amend AntiMilan decree, 112 Trust Act, 375

Military Occupation of Japan, 563 Neutrality, Washington’s proclamation, 96; apMiller, J., opinion, 284, 286, 293, 314 peal by Wilson, 400; Act of 1934, 490; Act

Milligan, ex parte, 256 of 1937, 514; Act of 1939, 527 Miner v. Happersett, 290 New England Confederation, 18

Minersville School District v. Gobitis, 532 New Hampshire, Resolutions on Va. and Ky.

Minnesota Moratorium case, 494 Resolutions, 104

Mississippi, resolutions on secession, 197; black New Jersey (or Paterson) Plan, 85

code, 246 New Jersey, peace resolutions, 227; soldiers’

Mississippi v. Johnson, 259 protest, 227

Missouri Compromise, 121; resolution for ad- |New Order in the Far East, 522

mission, Constitution, Enabling Act, 121 New Orleans, Jefferson on importance of, 107

Missouri v. Holland, 437 New State Ice Co. v. Liebmann, 472 Mitchell v. U.S. et al., 543 New York, charter to patroons, 14

Mobile Address, Wilson’s, 394 New York City, resolutions on Boston Port

Molasses Act, 30 Act, 51; secession of, 200 Money and Credit, Report of Pujo Committee, New York Sons of Liberty, resolutions on tea, 48 388 New York State Anti-Discrimination Act, 559

Monroe Doctrine, English background, 126; an- Nicaragua, Bryan-Chamorro Convention, 398;

nounced, 127; Polk’s reassertion of, 167; Am. intervention, 460 French in Mexico, 226; Roosevelt Corollary, Nine-power Treaty, 449 362; Lodge Corollary, 385; Wilson interpreta- Nixon v. Herndon, 464

tion, 394; Stimson doctrine, 469 Non-importation agreement, Boston, 46; Vir-

._Monroe, Pres., veto of Cumberland Road Bill, ginia, 54

125 Non-intercourse Act, 112

Mooney-Billings Case, conclusions of commit- Norman v. B. & O.R.R. Co., 482

tee, 471 Norris-La Guardia Bill, 474

Morrill Act, 216 North Africa, U.S. policy in, 548

Moscow Conference, 551 North Atlantic Treaty, 589 Muller v. Oregon, 366 North Carolina Regulators, 47

Munn v. Illinois, 294 Northampton Co., Va., Stamp Act resolution, 39

560 Northwest Ordinance, 82

Murphy, J., dissenting, 544; opinions, 533, 549, Northern Securities Co. v. U.S., 363 Muscle Shoals Bill, Hoover’s Veto, 470; passed, Nullification, Ky. and Va. resolutions, 102, 103;

479 Hartford Convention, 115; S.C. Ordinance,

Mussolini, Benito, appeal to, 524 1832, 143; Jackson’s proclamation, 144; S.C. Mutual Security Act of 1951, 602 Reply to Jackson, 145; of Force Bill, 146

INDEX 839

Ocala Demands, 324 Polio, Salk vaccine, 620

Open Door in China, 350; Root-Takahira Pollock v. Farmers’ Loan & Trust Co., 333 Agreement, 372; Lansing-Ishii Agreement, Pope, Gen., Address to Army, 218

420; reaffirmation, 522 Populist Party, Ocala demands, 324, platform,

Oppenheimer, J. R., AEC decision on, 614 325 Oregon, Polk on, 166; treaty, 169 Porter, Admiral, Report on City Point Confer-

Ostend Manifesto, 181 ence, 239

Otis, J., speech against writs of assistance, 32 Powell, Maj., Report on Arid lands of West, 302

Pacific Railway Act, 215 Pre-emption Act of 1841, 157 Panama Congress, 131 Presbyterian Memorial, 1776, 79 Panama, Declaration of, 526 Presidential Succession Act, 580 Panama, Treaty with, on canal, 361; Wilson toll = Prigg v. Pennsylvania, 158

message, 397 Primary elections, Classic case, 544

Pan-American Conference, Lima, 521 Privileges granted to Columbus, 1; to Patroons, Pan-Americanism, Blaine’s invitation, 305 14

301 Neutrality, 96

Papal Bull Inter Caetera, 2; Encyclical Letter, Proclamation of Rebellion, 62; Washington’s

Paterson (or New Jersey) Plan, 85 Proclamation of 1763, 33 Patroons, Charter of Freedom, 14 Progressive Party Platform, 384 Payne-Aldrich Tariff, Taft’s defense, 374 Prohibition, national, 432; cases, 433

Peace Pact, Kellogg, 467 Providence, Plantation Agreement, 17

“Peace without Victory,” Wilson’s speech, 416 Public lands, see Lands

Peckham, J., opinion, 368 Pujo Committee, Report, 388

Pendleton Act, 308 Purchase of Alaska, 268

Pennsylvania, concessions to, 25; charter of privileges, 29; frontier grievances, 34; resolu- Quartering Act, 1765, 42

tions on Boston Port Act, 50 Quebec Act, 49 Pennsylvania v. Nelson, 625 Quock Walker Case, 71

Penn, W., Plan of Union, 28 Quod Apostolici Muneris, Encyclical letter, 301 Pension legislation, Cleveland on, 312

People v. Fisher, 159 Railroad Acts, Pacific, 215; 1918, 424; 1920, People v. Williams, 365 438; Emergency, 1933, 480 Perry v. U:S., 482 Railroad Commission of Wis. v. C.B. & Q.R.R., Personal Liberty Act, Mass., 182 439 Philippines, Organic Act, 1916, 412; Independ- Railroad Rates, Judicial Review, 1889-1897, 319 ence Act, 1934, 489 Railroad Retirement Board v. Alton, 497 Pierce v. Society of the Sister, 455 Raleigh, Sir Walter, charter, 5

Pinckney Treaty, 99 Raleigh Letter, Clay’s, 164 Pitney, J., opinion, 445 Rambouillet Decree, 112

Plantation Agreement, Providence, 17 Randolph Plan of Union, 84 Platforms, party, Georgia, 1850, 175; American Reagan v. Farmer’s Loan & Trust Co., 319 Party, 1856, 183; Constitutional Union Party, Rebellion, Proclamation of, 62 1860, 191; Republican, 1860, 192; Democratic, Reciprocal] Trade Agreement, 506 1860, 193; Democratic (Breckenridge) 1860, Reciprocity, McKinley’s speech, 354; Canadian, 194; National Union, 1864, 232; Democratic, Taft on, 377 1868, 274; Liberal Republican, 1872, 283; Recognition of Soviet Russia, 488 Single-tax, 1886, 313; Ocala, 1890, 324; Popu- Reconciliation, Petition for, by London Merlist, 1892, 325; Republican, 1896, 341; Demo- chants, 58 cratic, 1896, 343; La Follette’s progressive Re- Reconstruction, Tennessee, 229; Lincoln’s Plan, publican League, 1911, 376; Socialist, 1912, 230; Wade-Davis Plan, 234; Johnson’s Am382; Progressive, 1912, 384; La Follette, 1924, nesty Proclamation, 248; Johnson’s Proclama454; Democratic, 1932, 475; 1936, 509; 1940, tion, 249; Report of Joint Committee, 254;

533; Republican, 1936, 508 Johnson’s message on, 255; first Act, 260;

Platt Amendment, 360; abrogation of, 491 veto, 261; second Act, 265; veto, 266; third Point Four Program, Truman’s, 591 Act, 267; fourth Act, 270; Freedmen’s Bureau Polk, Pres., message on Texas and Oregon, 166; Bill, 245; veto, 251; Civil Rights Act, 252; reassertion of Monroe Doctrine, 167; message veto, 253; Civil Rights Act of 1875, 291;

: on war with Mexico, 168 Fourteenth Amendment, 272; Act to Enforce

840 INDEX Fourteenth Amendment, 273; Ku Klux Klan, Sedition Act, 101 271; constitutionality: ex parte Garland, 258; Segregation, decision on, 585 Mississippi v. Johnson, 259; Texas v. White, Selective Service Act of 1948, 585 278; Milligan case, 256; Civil Rights Cases, Seneca Falls, declaration and resolutions, 172

292 Seward, W., plan to avert civil war, 204; letters

Reed, J., dissenting, 533; opinion, 556 on French in Mexico, 226

Reform of Federal Judiciary, 515 Shaw, C. J., opinion, 160 Regulators, N.C., petition of, 47 Shays’s Rebellion, 81 Religious Liberty, Memorial from Hanover Co., Shell Manifesto, 323

Va., 79; Virginia statute, 80 Sheppard-Towner Act, 443 Relocation of Japanese, 546 Sherman Anti-trust Act, 320; interpretation of, Republican Party Platform, 1860, 192; 1896, by rule of reason, 375, 530

341; 1936, 508° Sherman Silver-purchase Act, 321; Cleveland on

Resumption of specie payments, Grant’s recom- repeal of, 328

mendations, 288; resumption, 289 Sherman, W. T., on burning of Columbia, S.C.,

Revenue Act, Townshend, 43 241; surrender of Johnston to, 243 Rhode Island, plantation agreement, 17; reply Shreveport case, 399

to Va. and Ky. Resolutions, 104 Silver, “Crime of ’73,” 285; Bland-Allison Act,

“Riders,” Hayes’s Veto of Army Appropriation 299: Veto, 300; Cleveland’s recommendation,

Act, 303 311; Sherman Act, 321; Cleveland on repeal 497, 502, 513 Single-tax Platform, 313

Roberts, J., dissenting, 544; opinions, 478, 495, of, 328; appeal of silver democrats, 338

Roosevelt, Pres. F. D., first inaugural, 476; rec- Sjaughter-house cases, 284 ognition of Russia, 488; veto of bonus bill, Sjavery, earliest protest, 26; abolitionist propa-

496; address on judicial reform, 515; Pan- ganda on, 151; emancipation, 221, 222 American day address, 523; appeals for peace, SJave Trade, abolition of, 1807, 111; abolition 524; Four Freedoms Speech, 537; The Atlantic of in D.C., 174 Charter, 539; message on war against Japan, Smith v. Allwright, 556 540; statement on Vichy policy, 548; mes- Social creed of the churches, 371 sage on Casablanca Conference, 550; state- Social Security Acts, 503 ment on atrocities at Moscow Conference, 551; Socialist Party Platform, 382 message on Economic Bill of Rights, 555; Socony-Vacuum Oil Company, USS. v., 529

draft of Jefferson day address, 561 Soldiers’ bonus bill, veto, 496

Roosevelt, Pres. T., message on trusts, 1901, South, economic conditions, 517 356; corollary to Monroe Doctrine, 362; South, Grant’s observations on, 250 “Gentlemen’s Agreement,” 367; conservation, South Carolina, protest against tariff of 1828, 369; candidacy in 1912, 379; New national- 135; ordinance of nullification, 143; Jackson’s

ism speech, 380 proclamation to, 144; reply to Jackson, 145;

Root, E., on invisible government, 406 nullification of Force Bill, 146; on abolitionist

Root-Takahira Agreement, 372 propaganda, 151; ordinance of secession, 198;

“Rule of Reason,” 1897-1911, 375, 530 causes of secession, 199; provisional govern-

Rush-Bagot Agreement, 117 ment, 249; immigration bill, 257; restoration Russia, recognition of, 488 of white rule, 297; Tillmanism in, 323

Spain, Pinckney Treaty, 99; Florida Treaty,

Salk, anti-polio vaccine, 620 120; Treaty of Paris, 1898, 349 Sanford, J., opinion, 456 Specie Circular, 153; Jackson’s message, 154

San Francisco, Committee of Vigilantes, 184 Specie Payments, resumption, 288, 289 , Santo Domingo, Grant’s message on annexation, “Spoils of Victory,” Marcy’s speech, 139

279 Stamp Act, 35; Virginia Resolution, 36; Con-

Savage, C. J., opinion, 159 gress, 38; Northampton Co. Resolutions, 39

Schechter v. U.S., 486 Standard Oil Co. v. US., 375

Schenck v. U.S., 426 Steward Machine Co. v. Davis, 504

Secession, Floyd Co., resolutions on, 190; Bu- Stimson doctrine, 469 chanan’s message on, 195; Mississippi reso- Stone, J., opinions, 478, 519, 520, 542, 544, 547

lutions, 197; S.C. ordinance, 198; S.C. Story, J., opinions, 132, 158

declaration of causes, 199; F. Wood’s recom- Strong, J., opinion, 280 | mendation, 200; Lincoln’s message on, 205; Submerged Lands Act of 1953, 608

Sumner’s resolutions on, 212 Suffrage, Chancellor Kent on, 124; woman’s,

Second Reconstruction Act, 265; Veto, 266 172, 290

INDEX 841 Sumner, C., Resolution on theory of secession, 1922, 449; Germany, 1928, 466; Kellogg, 1928,

212 467: Cuba, 1903, 360, 1934, 491; Anti-war,

Sussex affair, Wilson’s message, 409 1934, 492; Canadian, 506; North Atlantic, 589 Sutherland, J., opinions, 451, 458, 472, 498, 499, Truax v. Corrigan, 444

507, 510 Truman Doctrine, 574

Swanson Resolutions, 457 Truman Loyalty Order, 576 . Truman, Pres. Harry, statement on American

ws foreign policy, 564; on control of atomic

Taft, C. J. opinions, 451, 439, 440, 444, 440, onerey, noid inaugural address, 588; civil

‘ ram, 592; statemen

Tait Harty Act of 1547 579 rights message, 282 Point oan program, nots Taft, Pres., message on injunction, 373; defense nye an War, §9 4 ‘ veto of McCarran Act, 59S:

of Payne-Aldrich tariff, 374; Message on veto of McCarran-Walter Act, 604; reply to Anti-trust Act, 375; Canadian reciprocity, Congressional subpoena, 609

377; veto ofRoosevelt Arizona Act, 378; on Dollar 8 , also . ; Trusts, message on, 356; see Diplomacy, 386; veto of 387 Anti . literacy - n:test,nti-trust

eraer . ; urkey, aid to, 575

Tallmadge Amendment to Missouri Bill, 121 T :

Tampico incident, Wilson’s message, 395 Tyson v. Banton. 458

Taney, C. J., opinions, 155, 185, 188, 209 y

Tariff, S.C., protest against, 1828, 135; nullification of, 1832, 145; Cleveland’s message, 1887, “Ulysses,” case of, 487

317; Taft’s defense of Payne-Aldrich, 374; UNESCO, constitution of, 566 | revision under Wilson, 391; lobby, 392 United Nations, Participation Act, 565; Decla-

Taylor amendment to Missouri Bill, 121 ration on Human Rights, 587

Taylor Grazing Act, 493 Union, Penn’s plan, 28; Albany plan, 31; GalloTeapot Dome, Resolution on, 452 way’s plan, 55; Randolph, 84; Paterson, 85;

Tea, Resolutions on, 48 Hamilton, 86 a

Teheran Conference, 554 United States, Constitution, 87 .

Tennessee, protest against caucus, 128; recon- U.S. Department of Health, Education and

struction of, 229 Welfare, created, 606

Tennessee Valley Act, 479 United States Housing Act, 516 Tenure of Office Act, 262; Veto, 263 U.S. v. Butler, 478

Texas and New Mexico Act, 174 U.S. v. Classic, 544

Texas, declaration of independence, 152; an- U.S. v. Curtiss-Wright, 510 nexation, Clay’s Raleigh letter, 164; joint U.S. v. F. W. Darby Lumber Co., 542

resolution, 165; Polk’s message on, 166 U.S. v. Debs et al, 335

Texas v. White, 278 US. v. E. C. Knight Co., 339

Texas White Primary Case, 464 USS. v. Lattimore, 622 Third Reconstruction Act, 267 U.S. v. Lovett, Watson, and Dodd, 568 Thomas Amendment to Missouri Bill, 121 US. v. Rumely, 605

Tillmanism in S.C., 323 U.S. v. Socony-Vacuum Oil Co., 530

Toleration Act, Maryland, 22 U.S. v. Trans-Missouri Freight Assoc., 375

Tordesillas Treaty, 3 U.S. v. “Ulysses,” 487

Townshend Revenue Act, 43 U.S. v. Workingmen’s Amalgamated Council, 326

Transportation Act of 1920, 438 Utah Act, 1850, 174

Trans-Missouri Freight Assoc., U.S. v., 375 Treaties, Tordesillas, 1494, 3; France, 1778, 69; Van Buren, Pres., Message on Caroline affair, Great Britain, 1783, 74; Jay, 1794, 98; Pinck- 156 ney, 1795, 99; Louisiana, 1803, 108; Rush- Vandenberg Resolution, 583

Bagot, 1818, 117; Florida, 1819, 120; Van Devanter, J., opinion, 433 Webster-Ashburton, 1842, 161; Oregon, 1846, Vanzetti, N., last statement in court, 465 169; Guadalupe-Hidalgo, 1848, 171; Clayton- Veazie Bank v. Fenno, 277 Bulwer, 1850, 177; Alaska, 1867, 268; Wash- Venezuela boundary, Cleveland’s message, 340 ington, 1871, 281; Chinese Immigration, 1880, Vichy policy, 548 306; Fur-sealing, 1892, 329; Hawaii, 1893, Vigilantes committee, San Francisco, 184 330; Spain, 1898, 349; Hay-Pauncefote, 1901, Virginia, first charter, 6; second charter, 7; third

355; Panama, 1903, 361; Bryan-Chamorro, charter, 8; ordinance, 9; Stamp Act Resolu1914, 398; China, 1914, 401; Haiti, 1916, 410; tions, 36; Northampton Co. Resolutions, 39; Germany, 1921, 442; Naval-limitation, 1922, Albemarle Co. Resolutions, 52; instructions to 447; Four-power, 1921, 448; Nine-power, Continental Congress, 53; non-importation

842 INDEX agreement, 54; bill of rights, 67; cession of on Mexican relations, 393; Mobile address, western lands, 76; memorial of Hanover Co., 394; Tampico incident, 395; Panama Canal 79; statute of religious liberty, 80; plan of tolls, 397; appeal for neutrality, 400; Veto of union, 84; resolutions on assumption, 92; literacy tests for immigrants, 404; first Lusz-

resolutions of 1798, 102 tania note, 405; reply to Gore-McLemore Volstead Act, 432 resolutions, 408; on Sussex affair, 409; on agricultural legislation, 411; “peace without Wabash Case, 314 victory,” 416; Declaration of War, 418; FourWade-Davis Bill, 234; Lincoln’s proclamation, teen Points, 423; appeal to voters, 429; ex235; manifesto, 236 position of League of Nations, 435 Wagner Housing Act, 516 Wilson v. New, 415 Waite, C. J., opinions, 290, 294 Wolff Packing Co. v. Kansas Court of Industrial Washington, Pres., First inaugural, 90; procla- Relations, 450 mation of neutrality, 96; proclamation on W.C.T.U., declaration of principles, 357 Whiskey rebellion, 97; farewell address, 100 Woman’s rights, Seneca Falls Convention, 172

Washington, Treaty of, 281 Wood, Mayor, recommendation for secession of

Webster-Ashburton Treaty, 161 New York City, 200 West Coast Hotel Co. v. Parrish, 512 Woods, J., opinion, 335 West Va. State Board v. Barnette, 533 Worcester v. Georgia, 141 Western lands, Government for, 77 Workingman’s Council, U.S. v., 326

Western lands, Virginia cession, 76; see also World Court, Resolutions and Protocol, 457

Land World War II, declarations, 540, 541

Education, 626 |

Whiskey Rebellion, proclamation, 97 Writs of Assistance, Otis’s speech, 32

White House Conference on Federal Aid to Wythe, J., opinion, 73 . White, C. J., Opinions, 375, 415 Yalta (Crimea) Conference, 557

Wilson, J., opinion, 95 Yarbrough, ex parte, 293

Wilson, President, first inaugural, 389; repudi- Youngstown Sheet & Tube Co. v. Sawyer, 603 ation of dollar diplomacy, 390; on tariff revision, 391; denunciation of tariff lobby, 392; Zimmermann Note, 417